The company is not exempt from facing cases in which workers test positive for a psychoactive substance in a drug test and state that their use is occasional, that they are not permanently addicted, and that they do not wish to participate in any rehabilitation or detoxification program. This statement should be put in writing and signed by the worker himself or herself so that, in the event of any dispute, it can be shown that any allegation by the worker that he or she was not given the opportunity to receive medical treatment for the addiction is untrue.
In Costa Rica, there is a clear distinction in case law regarding the treatment that must be given depending on whether the use is habitual or occasional. Habitual use requires the company to offer the worker the possibility of rehabilitation at a specialized center to overcome the addiction. It is important to note that this is a voluntary process in which the worker must make every effort to stop using drugs. When the use is occasional, the company is not required to offer the possibility of rehabilitation, and if the worker repeats the conduct, such repetition may only be classified as just cause for dismissal if it occurs within the following three months, according to the interpretation of the courts, which have limited the period in which repetition is measured to that timeframe.
In the case of occasional drug use, the company may, from the first positive result, issue the worker a written warning for having obtained a positive result in the drug test, and the worker must be warned in writing to refrain from incurring in this misconduct again, since it is a case of occasional drug use.
An example would be if the first positive result was obtained and became known to the company on October 6, in which case the three-month period would end on January 6, or in practice, to avoid any discussion, on January 5. If the result of the new test administered to the worker is obtained on December 20, it would fall within the three-month period, and the misconduct would then be deemed to have occurred, giving the company one month to dismiss. The legal basis for dismissal without employer liability is found in Articles 81 subsection i) and 72 subsection c) of the Labor Code.
In the situation of having a worker who is an occasional drug user, and although it is understood that the company has no responsibility to accompany the worker in a detoxification process at a specialized center, the company could, before deciding to terminate the employment contract, undertake a corporate social responsibility program with clear objectives aimed at supporting the worker in finally quitting drugs and living a life free from them. From the occupational health and safety system, campaigns can also be carried out to raise greater awareness among the workforce about avoiding drug use and thus maintaining an environment free from this scourge.
At Bufete Godínez & Associates, a Labor and Employment Law firm in Costa Rica, we help companies design and implement workplace drug policies, strengthen occupational health and safety compliance, and train personnel on the prevention of drug use in the workplace and its legal implications.
Our team advises employers on labor due diligence, internal policies, hiring, promotions, performance management, terminations, and workplace compliance strategies, with a preventive approach focused on reducing labor risks, avoiding employment disputes, and strengthening legal certainty.
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