Ask the Expert: Can Positive Drug Tests Be Cause for Termination?

Question: If we have a drug-free workplace policy and implement random testing, can we fire an employee who tests positive even if the employee simply used marijuana outside the workplace and wasn’t impaired?

Answer: The short answer is yes.

Employers in Wisconsin specifically are allowed to conduct random drug testing of their employees. If an employer chooses to do so, the employee handbook should advise employees of the nature of the testing.

In Wisconsin and throughout the United States, most employees are “at-will.” At-will employees are not subject to an employment contract that dictates employment terms and conditions. An at-will employee may leave his or her employment for any reason, and their employment may be terminated for any reason, so long as such termination doesn’t violate state or federal employment laws.

An at-will employee’s positive test for marijuana—regardless of where it was ingested—can be grounds for termination, without running afoul of Wisconsin law. However, the employee may still be able to collect unemployment benefits, depending on other facts and circumstances. For example, the agency that reviews unemployment benefits decisions in Wisconsin doesn’t recognize hair samples for positive drug tests. If the only positive test is a hair sample, and the person was terminated for violating the drug-free workplace rule, they may be eligible for unemployment benefits.

While there’s only one Wisconsin statute that deals with drug testing in the workplace, there are also federal laws to navigate, including: the Drug Free Workplace Act (DFWA); Department of Transportation rules; and Department of Defense rules. The DFWA not only applies to federal workplaces but also applies to non-federal workplaces with a federal contract of $100,000 or more or a federal grant in any amount.

The bottom line is, as long as federal law doesn’t apply to your workplace, an employee in Wisconsin can be terminated for violating a drug-testing program. However, as with any termination, the decision should be well-documented and shouldn’t be used as a pretext (an excuse) for terminating an employee for a reason that would violate state or federal employment laws.

Heath Straka is a partner at Axley Brynelson, LLP, in Madison, Wisconsin. He can be reached at hstraka@axley.com.

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