Absolutely. But you’re probably not going to get the job and employees will be terminated.
An employer can decide not to hire someone based on refusal of a drug test as long as that is the sole reason and not because they are part of a protected class (groups protected by anti-discrimination laws). This decision must apply to all job candidates as company policy.
Drug testing laws fall mainly on the shoulders of the state, with changes to policies taking place annually as the legality of marijuana evolves.
There are exceptions. If an applicant suffers from a disability that prevents them from taking the test in a standard manner, companies are expected to make a “reasonable accommodation” for the applicant, according to the Americans with Disabilities Act.
Companies drug test for several reasons but many have safety concerns, particularly in manufacturing and transportation. An employer can require drug testing under the following provisions:
- Candidate must be informed ahead of time. In some states, the workplace must advertise employees will be tested in the job ad. The test can be administered after the prospective employee receives a conditional offer letter;
- All job candidates must be required to take it;
- The test must be performed at a clinic or lab.
Once hired, drug testing laws change slightly. An employer can test employees for several reasons including: suspicion, post-accident, annual and random.
Suspicion-based testing requires the employer to have a reason behind the test. Suspicious behavior could include:
- Unexplained behavior changes;
- Decline in work production;
- Slurred speech;
- Sloppy appearance;
- Unsafe behavior;
- Report of drug use.
If any of the above is true, an employee may be singled out for testing. Tread softly here. If the employer is unable to prove suspicious behavior and the employee is terminated based on drug test refusal, the employer may be liable for discrimination.
As always, speaking with an attorney can help you understand the laws and exceptions surrounding drug testing, including how if an employee was actively seeking help for a drug problem, they may be protected from termination.
The information and opinions expressed are for educational purposes only and are based on current practice, industry-related knowledge and business expertise. The information provided shall not be construed as legal advice, express or implied.