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Common questions for individuals who have to take a drug test are, “What happens if I fail the test? How will I know if I fail? Will I get in legal trouble?” The answer to these questions is: it depends on several factors such as why you’re getting tested, the leniency of those involved, and even the specific laws you’re governed under to name a few. This article is going to dive into more specifics on the consequences of failing 3 common drug tests: 1) Pre-employment 2) at work and 3) for probation.
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Unfortunately, just because you live in a state with legal marijuana doesn’t mean the company will recognize your right to consume it.
There are some companies who require drug tests but ignore cannabis. These companies are few and far between, and they’ll let you know ahead of time if this is the case.
The same is true for probation. Just because you live in a legal state does not mean you are allowed to smoke weed. There are some instances where courts have allowed medical patients to continue use, but this is on a case by case basis and something you would absolutely have to discuss with your probation officer ahead of time.
Pre-employment is perhaps the most common reason people are subjected to drug tests. Since it’s such a common practice there are so many questions I get asked regarding different aspects of the screening process. Below are the answers to the most common questions I hear regarding this matter.
Can you still get hired if you fail a drug test?
I’m going to be blunt with you – you’re chances of getting a job after failing the pre-employment drug test are slim to none. Truth is, if a company is spending the money and time to have you tested then it’s likely they actually care about the results.
This doesn’t mean that nobody has ever got a job after failing a test. If you are in a specialized field with positions that are difficult to fill then you may have a better chance.
If you fail a drug test it doesn’t hurt to talk to the company and ask if you can retake the test at a later date or apply again later. Honestly, it’s a long shot, but the worst that can happen is you still don’t get the job.
Do they call you if you fail a pre-employment drug test?
If you pass your drug test then you likely won’t hear about it. On the other hand, if you fail the test you will like be hearing from an MRO (Medical Review Officer). The MRO may contact you directly or they may communicate through the company who paid for the test.
At this point, the job of the MRO is to find out if you have any legitimate medical reason why you may have failed the test.
What happens if you just ignore the MRO? You fail the test and you waste people’s time. Lying won’t really help you with the MRO either. They have your screening information at their disposal so they know what was in your system.
If you fail a drug test for a job does it stay on your record?
In short, no. Drugs screenings do not go into any sort of public record that could be seen by future employers, or anyone for that matter. The company who tested you may keep a record in the event you try to apply again. They could also say something if you use them as a reference for another job.
There are two major exceptions to this:
- Jobs with the DOT (Department of Transportation) are allowed to ask the applicant’s previous DOT employers for drug and alcohol test results. It’s also important to note that the DOT requires applicants to disclose any previously failed tests when applying.
- Drug tests from a pain clinic, doctor’s office, or insurance investigation will likely go on your medical record where they usually stay for a long time. In fact, it might never come off. Medical records are not public so typical employers do not have access to them, but they are visible to anyone with clearance to medical databases.
Failed tests that cause probation/parole violations or a criminal conviction may become public record. I’ll talk more about this in a later section.
Can you get in legal trouble for failing a pre-employment drug test?
No. Your prospective employer’s drug test does not have any legal standing. You test will not be sent to authorities, and even if it was there really isn’t anything they could do about it.
Again, this is only for pre-employment drug tests. If you’re taking a test for probation then, of course, a failed test can lead to legal trouble.
Is it better to fail a drug test or refuse?
If you fail the test you are most likely not going to get the job. If you refuse a drug test then you’re also likely not going to get the job.
If you know beyond the shadow of a doubt that you are going to fail the test then refusing may at least save you and the employer a bit of time. Maybe they’ll be so impressed with your honest refusal that they’ll hire you, but I wouldn’t hold my breath if I was you.
In the end, refusing to take a drug test makes you look just as guilty as failing a drug test in the eyes of most employers.
So, you passed your pre-employment drug test a now you’ve got yourself a job. This may be the end of you worrying about drug tests, or it may be just the beginning as many companies issue periodical or random screenings to their employees.
The process varies greatly between companies. Sometimes you’re tested in-house, while other times you may be sent to a lab. Sometime they may even send a supervisor with you to the lab to make sure you don’t try to cheat.
Will you get fired for failing a drug test?
Yep, you are most likely going to lose your job. Again, if a company takes the time and money to have you tested then the results probably matter. Is there hope? Sure, there is always hope, but I don’t want to give you false expectations – your chances are looking pretty slim.
If you’re a particularly reliable employee then you may have better bargaining chips. Here are a few things you could do to try and salvage your job after failing a drug test:
- Explain you’re not a regular user and ask if you can retake the test a later date. Of course, this means you need to get yourself clean before the retest.
- Offer to get treatment in the form of substance abuse counseling.
- Remember supervisors and HR personnel are people too. Try having a one on one discussion and find out if there is anything you can do to keep your job.
Lastly, I want to mention there is growing support for second chance drug screenings. That is, companies are deciding to give employees another chance to pass instead of instant termination.
Excuses for failing a drug test
People have tried every excuse in the book, which means HR has already heard every excuse in the book. Unfortunately, there really aren’t any good excuses to explain why THC was found in your body.
You can always say you were at a party or friends house and blame it on second-hand smoke, or claim you ate some edibles by accident when you thought they were regular brownies. Again, the employers have likely already heard it all and it’s unlikely they’re going to buy into your excuses.
If you fail a drug test at work does it go on your record?
No. Failed test at work fall under the same policies as pre-employment tests in this regard. Your test results will only be given to the company that paid for it -unless DOT is involved.
If I get fired for failing a drug test can I get unemployment?
Unemployment regulations vary from state to state so you are going to have to do some research to find out for sure. With that said, most states will deny your unemployment on the basis that you were fired for cause. Again, each state is different so do your due diligence and speak to an attorney.
Failing a drug test on probation is a whole different ballgame than failing a work-related test. The stakes are much higher.
Each person could experience drastically different consequences for several reasons including, but not limited to: what offense put them on probation, the laws in their region, and the leniency of their probation officer.
The information below is general and should not be taken as legal advice. For the most accurate information contact a lawyer in your specific jurisdiction.
Can you go to jail for failing a drug test on probation?
Yes. In almost every case there is potential for you to be sent to jail. This is why the stakes are so high – your freedom is in jeopardy. This certainly doesn’t mean that you are automatically going to go to jail, but the potential is there.
It is possible you could only receive a strike/warning if the judge is being lenient. BUT, in addition to the warning, the judge could order you to additional probation time, community service, rehabilitation/counseling, or fines.
If the judge does not show you favor not only could you do a brief stint in jail, but you could also have your entire probation revoked which would mean you have to serve out your entire sentence. They could also charge you with an additional crime.
The failed drug test will go on your record. This means if you fail a probation drug test twice the judge is going to know about it.
If you fail a drug test on probation will they call you?
Each jurisdiction handles their test differently. Often, the test is done at the probation office and you will know almost immediately if you failed. This news may be delivered in the form of being put in handcuffs.
Sometimes you or your specimen is sent to a lab instead of analyzing on site. In this case, you will likely get a call from your probation officer instead of an MRO like with employment test. At this time, it is also possible that a warrant has been issued for your arrest, but then again maybe not.
Most often you will not hear back if you passed your test. No news is good news.
Drug testing probation felony charge vs. misdemeanor
Both felony and misdemeanor probation are subject to the same possible consequences outlined earlier. The only possible difference is your probation officer may be less lenient if you’re on felony probation.
What happens if you fail a drug test while on probation for DUI?
Again, any time you fail a drug test on probation (no matter what your crime was) you run a very high risk of legal consequences. If your probation is for DUI or any other substance abuse related charge then the probation officer may be stricter, and you may also encounter drug testing more often so be prepared.
In the end, failing a drug test is never a good time, but it’s also not the end of the world. Anytime you know you may be subject to a drug test you need to prepare in advance as much as possible. The best way to pass a drug test is simply to not do drugs, but that’s not saying anything you don’t already know.
If you don’t have time to let your body detox naturally (this can take up to several months for heavy users) then I highly recommend checking out this article about how to pass a drug test for weed from greengonedetox.com.