After listening to the speakers at this year’s Drug & Alcohol Testing Industry Association (DATIA) Conference, there is little doubt that drug testing is essential for employers of all sizes. Presenter after presenter offered hard evidence that drug use is going up.
During the conference, Dr. Barry Sample unveiled Quest Diagnostics’ annual Drug Testing Index. The results show that the percentage of American workers testing positive for illicit drug use is up for the second consecutive year. According to Patrice Kelly from the U.S. Department of Transportation, the top three drugs they are finding are marijuana, amphetamines (including methamphetamines) and cocaine. She also said PCP - a drug many believed to have peaked and disappeared in the ‘60s and ‘70s - is responsible for more positives than all types of Ecstasy drugs combined. Quest had similar results, and also noted their data shows heroin use has doubled over the last three years.
It’s no wonder that drug testing has become an omnipresent part of so many employers’ hiring process. But what happens when an employee or applicant refuses to take the test? The answer varies depending on the situation.
According to Ms. Kelly and several other presenters at the DATIA conference, if you are in a regulated industry such as transportation, oil and gas, or nuclear energy, there is a lot on the line. A worker who refuses either a drug or alcohol test must be removed immediately from safety sensitive jobs. After that, the employee will be required to see a DOT-qualified Substance Abuse Professional, go through educational and rehabilitation programs and complete a Return-to-Duty Process which includes observed drug tests. Certificates and licenses could be revoked, suspended or restricted if an employee refuses to take the test.
Things are a lot different in non-regulated industries. There is actually no federal law that requires employees to submit to drug testing. There are, however, state laws that could apply. In general, these laws require employers to clearly state that drug and alcohol testing are part of the screening process and make sure their company policy treats everyone the same during the hiring process. Company policies should also spell out what circumstances would prompt a test of a current employee. If you are testing current employees, you need to be able to prove that the testing is necessary to keep the job site safe or there is reasonable suspicion an employee is under the influence.
Employees may refuse to take a workplace drug test - but they can also be fired for that refusal. An employer only needs to demonstrate they had good reason to believe someone was a safety hazard or was unable to perform their job. The employer’s written policy is key in this situation. The employee has little recourse if the employer is following their written policy and the employee was aware of the policy. The former employee might even be denied unemployment benefits if they are terminated for refusing to follow company policy.