Heather Horning

Navigating Employment Offer Rescissions: Addressing Substance Use Concerns

Heather Horning - 10 January 2025
pen signing a form

Rescinding an offer of employment is never an easy decision, but situations involving substance use or failed drug tests can make the process even more sensitive. Small business owners must approach these cases carefully to avoid legal risks while ensuring that the workplace environment is kept safe. By prioritizing clear communication, understanding applicable laws, and thorough documentation, you can navigate these challenges effectively while protecting your business.

Transparency about drug-free workplace expectations is critical throughout the hiring process. From the initial job posting to the formal offer, employers should clearly outline any substance use policies and requirements, such as pre-employment drug testing. Including these conditions in a written offer letter, along with a statement that employment is at-will (where applicable), provides clarity and helps set the tone for compliance. This is particularly important for roles where safety is a concern or where candidates may be relocating to new locations. If drug screening results necessitate rescinding an offer, it’s essential to document and communicate this decision, ideally with input from legal counsel.

Some places protect employees’ rights to use marijuana during their personal time, even if the state allows employers to require drug tests before hiring. Additionally, federal laws like the Fair Credit Reporting Act (FCRA) come into play when drug test results are handled by third-party companies. The FCRA requires employers to inform candidates about their rights, share copies of any reports, and follow specific steps before deciding not to hire someone based on the results.

Anti-discrimination laws also stress the importance of fair treatment. Employers should make sure their drug testing and hiring practices follow the guidelines set by the Equal Employment Opportunity Commission (EEOC). They should also consider each situation individually if a candidate’s substance use history is connected to a medical condition or disability covered by the Americans with Disabilities Act (ADA).

Before rescinding an offer due to substance use concerns, employers should verify all facts and allow the candidate an opportunity to explain or contest the findings. Mistakes in testing or reporting can happen, and giving candidates a chance to provide additional context helps maintain fairness. Consulting with legal counsel before making a final decision can minimize risks and ensure compliance with state and federal laws.

Substance use concerns are a significant factor in hiring decisions, but with thoughtful policies and proactive communication, small business owners can address these issues while maintaining a professional, safe, and legally sound approach. By staying informed and diligent, you can create a hiring process that aligns with your business values and protects both your organization and employees.

 

Source: Crain’s Cleveland Business. (2023, December 11). Rescinding an employment offer: Proactive considerations to avoid legal consequences. Crain’s Cleveland Business. https://www.crainscleveland.com/custom-content/rescinding-employment-offer-proactive-considerations-avoid-legal-consequences