Unless you work in a federally regulated industry that requires certain workers to randomly submit to a drug test, employers are generally free to develop their own policies when it comes to drug testing current employees and/or prospective hires. However, there are some rules that employers must adhere to when testing individuals for illegal drug use.

For instance, if an employer wants to drug test prospective job candidates before they are formally hired, they must subject all prospective job candidates to a drug test or else it may be considered a form of discrimination.

An employer also cannot single out certain workers when enforcing drug policies in the workplace. They must assign drug testing randomly and may not force a worker to undergo a drug test that is considered to be physically invasive or otherwise in violation of state law.

In addition, employees have certain rights that will protect them against an employer who tests workers for illegal drug use. For example, employees have a right to be free from discrimination and harassment in the workplace. Employees also have a right to privacy and to be free from defamation in regard to the results of an illegal drug use test.

Finally, workers and prospective job candidates have a right to be notified about an employer’s drug testing policies in advance as well.

What Are the Rules For Testing Current Employees?

In general, there are several rules that most employers must comply with if they require their employees and/or prospective candidates to undergo a drug test to either keep or get hired for a particular job. In regard to the rules that apply for drug testing an employer’s current employees, they must do so in a manner that is fair and neutral.

For example, an employer cannot subject only certain groups of workers to a drug test if it reveals a pattern or motive of employment discrimination against some types of workers. This means that an employee cannot force all workers who practice a specific religion to submit to a drug test based on this reason alone.

An employer may also not force a worker to get a certain kind of drug test if the drug test is physically invasive or constitutes an invasion of privacy under the law. In addition, drug tests must be administered randomly, and employers are typically forbidden from drug testing a worker who was injured on the job if it would impact a claim to collect workers’ compensation.

Although employers must normally refrain from singling out particular job candidates and current employees for drug testing purposes, there is one major exception to this rule and that is when an employer can prove they had reasonable suspicion that a current employee was using drugs at work.

For instance, an employer may be able to argue they had reasonable suspicion that a specific worker was using drugs if they can submit evidence, such as:

  • The worker was behaving in an erratic or overly unprofessional manner;
  • The worker was passed out at their desk and unresponsive; and/or
  • The worker’s job performance has significantly declined from the time when they were initially hired.

Can I Refuse to Take a Drug Test?

There are some situations wherein an employee may refuse to take or decline a drug test. For instance, if a worker is diagnosed with a medical condition that falls under the Americans with Disabilities Act (“ADA”), then they may refuse to take a drug test if their employer is requiring them to take it in a manner that would contravene the reasonable accommodations provision of the ADA. A worker can also refuse to take a drug test when it would violate a state law.

In addition, a worker can refuse to undergo a drug test if they believe and can prove that the reason they have to get one is based on discrimination. For instance, refusing drug tests for religious reasons may be grounds to file an employment discrimination lawsuit against an employer in court if an employee can prove that their employer only forces people who practice a certain religion to submit to a drug test.

What Are the Consequences of Refusing to Take a Drug Test?

The consequences of refusing to take a drug test will depend on a number of factors, such as state laws, company policies, employment contracts, the job field, the facts surrounding a particular case, and a few others.

The most common consequence that a worker can face if they refuse to take a mandatory drug test is that they will be terminated from their job. Alternatively, if they are a prospective candidate for a job, then they will most likely not receive a job offer.

Employees who are fired for refusing to take a mandatory test at the request of an employer will typically lose their employee benefits as well. This means they could potentially forfeit their health insurance benefits if they are provided through their employer. In addition, some states have enacted statutes that may prohibit an employee from claiming unemployment benefits if their employer fires them after refusing to take a mandatory drug test for work.

One other possibly serious consequence that may arise when a worker refuses to take a drug test for their job is that they may be charged with committing a crime if they test positive for a drug that is considered to be illegal under state or federal law.

Are There Any Exceptions?

There are certain circumstances under which an employee may be able to refuse to submit to a mandatory drug test and their employer will not be allowed to terminate them for refusing. Some examples of situations in which an employee can refuse to take a mandatory drug test and not be terminated may include:

  • When an employee can prove that an employer’s request for them to take a mandatory drug test is based on reasons that would amount to employment discrimination. Such scenarios may also be referred to as using a “selective drug testing” policy, which is generally against the law.
  • If an employer subjects its workers to secret drug testing without their consent or knowledge. For instance, if an employer collected hair samples from their employees’ cubicles without permission or notifying them of the procedure.
  • When an employee has a disability that is protected by the ADA and their employer ignores or fails to comply with the reasonable accommodations necessary to administer a drug test on an employee with a disability.
  • If an employer and its workers are based in a state that imposes legal restrictions on specific kinds of drug tests and the employer requests that its employees undergo the type of drug testing that is deemed to be unacceptable or physically invasive under state law.

Do I Need an Attorney If I Refuse to Take a Drug Test?

As previously discussed, an employer may terminate or fail to hire an individual who refuses to take a mandatory drug test for a particular job. Therefore, it is generally recommended that you hire a local discrimination attorney for legal representation in court if you believe that you were fired or denied a position for refusing to take a drug test.

An experienced discrimination attorney will be able to apprise you of your legal rights and can inform you of any exceptions for drug testing in the workplace that may apply to your case under the laws of your state.

Your attorney can also perform further legal research on your matter, which will help them to determine whether you have a viable claim. If your attorney thinks you have a case, they can assist you in gathering essential evidence and can help you build a strong argument for your case.

Finally, should you decide to bring a lawsuit against your employer, your attorney will be able to aid you in recovering legal remedies, such as monetary damages or reinstatement of your job, if you prevail in the case. On the other hand, if you opt to go to trial and lose the lawsuit, your attorney will be able to help you appeal the initial outcome in court.