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.
The MRO Process: What Happens Between the Lab and the Employer
For DOT-regulated tests and most non-DOT programs that use a Medical Review Officer, the employer does not receive a positive result directly from the lab. The lab reports to the MRO — a licensed physician trained in drug testing — who reviews the result before it becomes official. The MRO contacts the employee directly to ask if there is a legitimate medical explanation for the result: a valid prescription for an opioid, a prescribed amphetamine like Adderall, or a documented medical condition affecting the specimen.
If the employee provides documentation of a valid prescription and the reported level is consistent with therapeutic use, the MRO may verify the result as negative. If no valid medical explanation exists, the MRO verifies the result as positive and reports it to the Designated Employer Representative. This MRO step is a critical safeguard — it's why a prescription for Adderall doesn't automatically mean an employee fails a drug test. The MRO sorts it out before the employer ever hears the word "positive."
California-Specific Considerations After a Positive
California employers must navigate a patchwork of state laws when deciding how to respond to a confirmed positive. AB 2188 limits adverse action for off-duty cannabis use for most employees — a cannabis positive alone is generally not a lawful basis for termination in California unless the role is safety-sensitive or federally regulated. The California Fair Employment and Housing Act (FEHA) also requires employers to consider reasonable accommodation for employees with documented substance use disorders who are not currently using.
This does not mean a positive test has no consequences. It means the employer's response must be based on job-related factors: current impairment, safety risk, policy violation, or federal regulatory requirement. Blanket zero-tolerance policies that terminate for any positive regardless of substance or circumstances create significant legal exposure in California post-AB 2188. Have your policy reviewed by California employment counsel at least annually.
The Return-to-Duty Process for DOT Employees
A DOT-regulated employee who tests positive cannot return to safety-sensitive duties until they complete a specific regulatory pathway: evaluation by a DOT-qualified Substance Abuse Professional, compliance with the SAP's recommended education or treatment plan, a return-to-duty drug test with a verified negative result, and a follow-up testing program set by the SAP (minimum 6 tests in the first 12 months). This entire process must be completed before the employee operates a CMV, flies a commercial aircraft, or performs any other DOT safety-sensitive function.
This pathway can take anywhere from a few weeks to several months, depending on the SAP's recommendation. During this period, the violation is recorded in the FMCSA Clearinghouse (for trucking), where it remains visible to all querying employers for 3 years after successful completion of the return-to-duty process. There is no backdoor and no workaround — the Clearinghouse has closed the gap that previously allowed violating drivers to move to a new carrier and start clean.
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.