Can Employees Legally Refuse a Drug Test at Work?

Having to take a drug test at work can be a controversial subject. Find out what your rights are and if there is a legal ground for refusal.

As the use of illicit drugs in the workplace continues to rise, being subjected to a drug test at work has become more commonplace

One in 11 job applicants tests positive for illicit drugs. The three drugs most prevalent in the workplace are marijuana, cocaine, and amphetamines.

But what if you don’t use drugs, or if you’re taking a prescription drug? Can you refuse to take a drug test?

Continue reading to learn about your legal right to refuse a drug test and possible consequences.

Industries Requiring a Drug Test at Work

Some industries must comply with regulations that require mandatory drug testing, and others are not regulated. For example, the Department of Transportation requires drivers in the transportation industry to take a drug test at work regularly.

Some other regulated industries include the oil and gas industry, nuclear energy, and military contracting. Refusal to submit to mandatory drug testing in a regulated industry can result in the following consequences:

• Removal from the job
• Mandatory counseling by a qualified Substance Abuse Professional
• Enrollment in educational and rehab programs
• Drug test monitoring if returned to work

It’s also possible that your employer will revoke, suspend, or restrict your license or certificate for refusal to submit to a drug test at work.

Drug Testing in Unregulated Industries

In unregulated industries, no federal law requires submission to testing. But state laws might. Most businesses will write an employment agreement that you must sign before accepting the job.

The agreement is based on the employer’s written policy on drug testing. This policy is the key to your rights on having a drug test at work.

Most companies that drug test will test employees during the hiring process. However, in non-regulated industries, the testing of current employees must focus on individual employees, not blanket testing of all employees.

The employer should select these employees for testing because they raised suspicion or have a high-risk job with potential for causing harm and damage to others.

Reasonable suspicion is based on observable behaviors and actions. These include erratic behavior, slurred speech, observed use of drugs, tampering with drug results, and causing an accident at work.

Employment Agreements for Drug Testing

Some 77% of Americans over 18 who use illicit drugs are employed part-time or full-time. That’s 9.4 million people. Drug use in the workplace is also a costly problem, costing employers $81 billion annually.

For these reasons, employers will continue to use drug testing as part of the hiring process and to monitor work performance. That means you may be subjected to random drug testing even if you don’t have a job that requires mandatory testing.

There is no federal law mandating drug testing. Most employer policies are based on state laws. These vary from state to state.

If you sign an agreement upon employment to submit to testing at the employer’s discretion, refusing to test can have consequences. If you are terminated based on the company policy, you can’t win a suit against your employer.

Know your company’s policy in this area. Here are some things to look for in the policy:

• Is it zero tolerance or does it give you a certain number of strikes
• Does it apply only to work or off work premises as well
• Are you tested randomly, after an accident, or upon reasonable suspicion

Also, the policy should spell out the consequences of failing a test or refusing to take the test.

Protections Under Federal Law

The American Disabilities Act (ADA) classifies substance abuse as a disability. If recovering alcoholics or drug users are in treatment for addiction, it’s illegal for an employer to discriminate against them.

Under the ADA, an employer must offer support like unpaid time off for rehab services. And drug results and medical records are protected by the ADA for confidentiality.

The Civil Rights Act of 1964 protects from discrimination. This law protects racial, ethnic, or gender groups from being singled out for drug testing or disciplinary action.

Also, the Family and Medical Leave Act of 1993 allows employees to take up to 12 weeks of leave for rehab of substance abuse. An employer can’t retaliate against an employee for taking time off by demoting or otherwise punishing the employee.

Your Rights During Testing

Most workplace testing requires a urine specimen. But blood, breath, and hair analyses are also used. Traces of a drug usually stay in your hair longer than in urine or blood.

While privacy laws protect you from having someone watch while you give your urine sample, they can do other things to ensure the sample is tamper-free. Here are some practices allowed by law:

• Listen outside the door when you are urinating
• Check the temperature of the urine
• Require you to wear a hospital gown

Your employer must give advance notice of random testing.

What to Do If You Fail a Drug Test

If you fail a drug test at work, you may be required to do rehabilitation, you could lose your employee benefits, or you could be terminated.

If you think the results of a drug test are inaccurate, you can get help from a union if you are a member, or you can get help from a lawyer to challenge the results.

It is the employer’s responsibility to ensure the labs they use for the samples provide accurate results.

In places where marijuana is legal, there’s some protection for those using it for medical purposes. But those using marijuana for recreational purposes are not protected.

However, even medical use of marijuana could still be punished. Courts look at the circumstances of each situation on a case by case basis.

The ADA protects you if you take pain pills prescribed by a doctor for a health condition. But over time, if the medication is no longer required, you could be punished if the drug shows up in testing.

If your employer violates your rights, you may have a legal case to refuse a drug test at work. Here are some areas, where your rights may be violated:

• Invasion of privacy
• Wrongful termination of employment
• Defamation
• Discrimination.

You would need to consult with a lawyer to see if you have a viable case.

Trends in Workplace Drug Testing

The increase in drug use today requires businesses to work within legal parameters to protect their assets and the welfare of those they employ and serve.

As drugs like marijuana are legalized, workplace drug testing will continue to be a growing area of contention for employer-employee rights.

At RDI Blog, we keep the conversation going to inform you of the latest in the drug testing industry. To learn more, check out our FAQ section, or contact us here.