The Mailbag.

AuthorDelogu, Nancy

What are the timing guidelines to test an employee for drugs?

QI read somewhere that if an employee tests positive for drugs, he/she has the right to get tested in any clinic of their choice within 10 days of getting the positive test. Also, they can be tested up to 72 hours after being asked. Can we make it mandatory that the employee get tested right away, and that they do not have the option to get a second exam?--Quintila, California

  1. I am not sure what you read, but what you describe is not correct. An employee who is otherwise legitimately subject to drug testing--typically, when reasonably suspected to be using drugs or alcohol in violation of your policy following an accident or on a random basis if the role is safety-sensitive--can be sent for an immediate drug and/or alcohol test. And the employee can be disciplined if he/she fails to take the test when directed. Nor is there any general right for an employee to get a second test on their own, or for the employer to consider such a test if the individual obtains one anyway.

    As you imply, alcohol and drug tests are best conducted promptly because that is the fairest approach to both the individual and the employer seeking to determine if the individual was in violation of policy while at work, rather than at some future point when the test sample is actually collected for testing.

    Note: Check state law. Your state, California, does have a fair amount of law addressing workplace drug testing that employers should understand.

    If an exempt employee works fewer hours, do we still have to give him full pay?

    QWhen you have salaried employees, do they have to work the full 80 hours to get fully paid, or is there a minimum amount of hours they can work? --Elisa, Texas

  2. The Fair Labor Standards Act's concept of salaried exempt workers says that the worker will receive a set salary in exchange for performing a specific role. That means the number of hours worked by someone in a salaried, overtime-exempt role is not relevant. The individual may work more than 40 hours in a given week without receiving overtime. (I assume the 80 hours you refer to indicates you have a pay period of two weeks.)

    Similarly, the...

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