Employees Returning from Layoffs or Furloughs: When Are Employers Required and/or Allowed to Administer Tests?

Employers are slowly easing back into a new normal. As they reopen their businesses and bring back staff laid off or furloughed during the early stages of the COVID-19 pandemic, employers must make decisions about handling a large reentry of staff members. These decisions instill a sense of stability for employees, ensuring that safety and stability are at the forefront of company policies.
Employee recall can be complicated as some companies may need to recall employees at different times while others companies may be able to recall all furloughed and/or laid off employees. Much of employee recall depends on a company’s work demands and social distancing rules set in place. In any case, employers must evaluate these processes and how they are to be most efficiently handled.
Part of the recalling process is employers deciding whether the employer will have employee’s drug tested or not. When evaluating this issue, employers must consider their obligations under their agreements and policies in place.

Layoff vs. Furlough

First, it is essential that employers understand the difference between what a “layoff” entails versus a “furlough”. A layoff is a complete employment severance, terminating the employer-employee relationship. A furlough is a temporary leave from work; it is unpaid and usually occurs for a specific amount of time.
Furloughed employees generally return to work when the situation that has caused the furlough changes. They do not need to go through the hiring process again as their return is expected and planned for. In most cases, it is unnecessary to update pre-hire drug tests upon an employee’s return from furlough, however, some employers alter their requirements based on the length of the furlough. Dissimilarly, a laid-off employee will go through a rehiring process, much like a new hire, upon their return. Generally, this consists of following specific procedures, protocols, and policies that have been implemented in the workplace.

Compliance

Employers wishing to conduct drug tests on returning workers who were furloughed or laid-off should check with their specific workplace policies and applicable laws.
Employers may have written policies that allow for pre-employment drug testing for workers who have been furloughed for a specific length of time. Other companies may have specific policies regarding laid-off employees and their rehiring in regards to when a drug test may be required as part of the rehire process.
Policies may need to be created or updated to ensure that appropriate procedures are being followed. It is recommended that managers review their company’s current policies on drug testing and rehiring and modify as needed.
If a company falls under the U.S. Department of Transportation (DOT) regulations, there are different— often absolute— rules, regulations, and requirements regarding furloughed or laid-off employees returning to work regarding when drug tests are required.
Drug testing requirements for employees returning from furlough or layoff will differ depending on which agency or agencies a company operates for. Some companies will operate under more than one DOT agency, further complicating whether or not tests shall be administered. Some agencies require that these tests occur within a specific time period. Other companies focus instead on if the employee was furloughed or laid-off.
What is important is that employers have a policy in place that is consistent, compliant, and enforceable. Employers and employees are experiencing an employee recall on account of a pandemic, and exact guidelines will ensure that companies are maintaining stability through a largely uncontrollable, turbulent time.

If you would like discuss your company’s policies, possible updates to your policy, or the creation of a policy, please contact OM Management