Generally, employers are allowed to test their employees for illegal drugs. Employers are also free to conduct drug tests on prospective employees if they follow the laws for such tests. These laws generally provide that:
- Applicants should be informed ahead of time, usually during the screening process, that they may be tested.
- All applicants for the same position should be tested if a test is to be administered.
- Tests should be administered by a state-certified laboratory.
Employers can single out and test current employees for illegal drug use if they have a reasonable suspicion of drug use. Reasonable suspicion can include, but is not limited to:
- Erratic behavior
- Sloppy or sickly appearance
- Unresponsiveness when addressed
- Disjointed speech
- Significant decline in work performance.
If an employer cannot show reasonable suspicion for requesting such a test, then the employer may be liable for discrimination.
Employers can terminate employees for refusing to take a drug test. Alternatively, an employer or impose other disciplines such as demotion or suspension. However, note those actions are punishments for not submitting to a drug test, and an employer should never physically force an employee to take such a test. The use of physical force can easily turn into violence or potentially a civil suit against the employer for assault and battery.
There are some exceptions to this rule. For example, if an employee has a disability which prevents them from taking the drug test in the standard manner or time, the Americans with Disabilities Act (ADA) requires the employer to make a "reasonable accommodation" for the employee. This might mean allowing a different type of test to be given, or allowing the test to be given at a different time or place.
Also, if an employee is terminated for refusing to take a drug test and can show that other employees of a different race, religion, or sex also refused but were treated differently, they may have a claim for discrimination.
Refusing to take a drug test is almost always grounds for termination or denial of a position. However, there are specific laws for the procedures of requiring and administering a drug test. If an employer has failed to properly follow drug test laws, you should seek an employment lawyer right away.