If an employee voluntarily discloses drug use, can we require they sign a last chance agreement and submit to weekly drug testing?

In most circumstances, employers are limited to testing their employees only when the employer has a reasonable suspicion that the employee is violating a drug- and alcohol-free workplace policy. That is, the employee is under influence while at work.

Last chance agreements, however, may allow an employer to set up a regular drug testing program for individual employees based upon specific circumstances. Last chance agreements are contracts between employers and employees that are used in lieu of terminating an employee.

In this specific example, an employer may terminate this employee for admitting to illicit drug use. However, the employer may not want to terminate the employee but instead give the employee the chance to correct the behavior and maintain their employment subject to the employee meeting the conditions of the last chance agreement.

Because the employer is granting the employee continued employment, the agreement can set conditions overriding an employee’s privacy rights such as regular or random drug testing.

Last chance agreements should be drafted by legal counsel but should expressly include any conditions that the employee must meet. If they are not expressly provided in the agreement, such as expressly describing what type of drug testing the employee will be subject to, the employer may not be able to carry out that weekly or random drug testing.

Read more about Drugs and Alcohol in the HR Library.