First: Understand What "Failed" Actually Means
Before taking any action, it's important to understand what type of result you received and what it means. A rapid test non-negative result is not the same as a confirmed positive. A confirmed lab positive reviewed by an MRO is different again. The appropriate response depends on where you are in the process.
Rapid Test Non-Negative
If On Point Drug Testing performed a rapid on-site Non-DOT screen and the result was non-negative, that means the screening test detected a substance above the cutoff level. This result must be confirmed at a certified laboratory before any adverse action is taken. Do not terminate an employee based on a rapid screen result alone — this creates significant legal exposure in California.
The specimen should be sent to a lab for confirmation (GC/MS testing). The confirmed result is the one on which you act.
Confirmed Positive — Non-DOT Employee
For non-DOT employers, what happens after a confirmed positive is governed entirely by your written drug-free workplace policy. This is why having a written policy is so important — it removes ambiguity and ensures consistent treatment.
Your policy should spell out: will you terminate immediately? Offer a last-chance agreement? Require completion of an EAP? Conduct a second test? Whatever your policy says, apply it consistently. Applying consequences inconsistently across employees is how discrimination claims happen.
California AB 2188 (effective January 2024) limits an employer's ability to take adverse action based solely on off-duty marijuana use as measured by standard urine tests — with exceptions for safety-sensitive positions and federal compliance. Consult your employment attorney before terminating for a marijuana-positive result.
Confirmed Positive — DOT Employee
For DOT-regulated employees, the response is federally mandated. The employee must be immediately removed from safety-sensitive duties. They cannot return until they have completed the SAP (Substance Abuse Professional) evaluation and treatment process, passed a return-to-duty observed collection, and entered the follow-up testing program.
The employer must also report the violation to the FMCSA Drug & Alcohol Clearinghouse (for CDL drivers). Failure to report is itself a violation.
Applicant Who Fails Pre-Employment
If an applicant fails a pre-employment drug test, you can rescind the conditional job offer — provided the offer was contingent on a negative result, which it should be per your policy. In most cases, you are not required to give the applicant the opportunity to retest, though your policy may offer this option.
Document Everything
Whatever action you take, document it thoroughly: the date of the test, the result, who was notified, when, what action was taken, and why. Drug testing documentation protects you in any subsequent legal challenge.