Last updated : January 20, 2025
It would seem extremely unusual for an employee to refuse a drug test, but it has happened. That’s because employees who use drugs don’t want their employers to be aware of it and avoiding the drug test would be an easy out for them.
If you participate in a drug-free workplace program, your drug testing policy undoubtedly stipulates how to handle the situation when an employee refuses a drug test. If not, you should rewrite your policies and procedures and include the information immediately.
Regulations are followed to the letter
Many employers of the general workforce emulate the Department of Transportation’s (DOT) drug-free protocol. The DOT regulates all industries that involve the transportation of goods or provide transportation for passengers. They also regulate workers who provide a service while they travel en route to provide services such as carpenters, landscapers, or the pool guy.
The DOT mandates that safety-sensitive employers drug test for the following:
- Pre-employment
- Post-accident
- Random
- Reasonable suspicion
- Return to duty
- Probationary
If an employee fails to complete a scheduled drug test, the employer must follow the DOT’s procedure to the “t.” There’s no chance that the employee can show up late or give a plausible excuse to reschedule and get away with it. Ultimately, the DOT views a refusal to test as a positive test result. The employee is removed from service immediately.
However, many individuals are involved with the DOT drug testing process. Who has the final call? The person at the end of the proper chain of command.
When the DOT process flows as intended
The laboratory sends all of the company’s drug test results back to the assigned Medical Review Officer (MRO). So the MROs are also notified of all incomplete tests and notify the DOT of the following:
- The donor fails to submit a sufficient amount of urine.
- They verify the drug test as being adulterated or substituted.
- The donor admits that they adulterated or substituted the test sample.
- The employee refuses to participate at any point in the test.
MROs make the final decision. Neither an employer nor their designated employee representative (DER) can alter it.
A refusal from the get-go
Some refusal to test situations fall to the employer or their DER (Designated Employer Representative) though. If a circumstance arises at the test site, the technician documents the information and contacts the employer immediately.
Refusal to test situations can include:
- Failure to appear or remain at the collection site—If an employee can’t provide a specimen, they’re asked to remain on-site for three hours. The employee is given a beverage to consume while waiting. It’s the employer’s responsibility to ensure the time documented on the chain-of-custody form reflects that this amount of time was allotted.
- Taking too long to report—Employers decide a reasonable amount of time to wait if an employee doesn’t show up. The wait time must be documented in the company’s refusal to test policy. Furthermore, scheduling a set appointment time and using a third-party administrator (TPA) that documents arrival time makes your job much easier.
- Failure to provide a urine sample is documented as a refusal.
- Declining an additional drug test request—including not reporting for a follow-up test as scheduled.
- Failure to cooperate—From refusing to empty their pockets to exhibiting confrontational behavior or simply refusing to wash their hands, employees who don’t follow instructions are refusing the test. The only exceptions to the rule are refusing to provide their signature or initials when requested or not confirming their social security number. The collector notes these incidents, however, they don’t warrant a refusal.
- Possession of or wearing a prosthetic device designed to carry a clean or synthetic urine sample
- Admission from the test subject to the collector that they have adulterated or substituted the sample
In the case of a pre-employment drug test, technicians only consider it a refusal if the job applicant stops cooperating in the midst of the actual test. It’s completely plausible that they changed their mind in the waiting room and decided not to take the job after all.
What’s next?
If you’re notified of a refusal to test by the collection site, you must remove that employee from any safety-sensitive duties immediately. Then, it’s up to you or your DER to make the final decision regarding the test refusal based on the documentation that you receive and to remain in compliance with the DOT.
When determining a refusal did occur, provide the employee with a list of Substance Abuse Professionals (SAP) nearby. The employee is responsible for contacting the SAP and beginning the return to duty process.
In the rare instance that you determine that a refusal to test didn’t occur, carefully document your decision. Be sure to include detailed reasoning and have it available to provide to the DOT upon request.
We’ll note that they can overturn your decision if they disagree.
The general workforce
If you aren’t federally mandated to drug test your employees, you still need to ascertain that you comply with the laws in your state. For instance, Nevada began banning employers from placing marijuana on pre-employment drug tests on January 1, 2020. In addition, some states have instituted laws that protect employees who use medical marijuana.
Generally speaking though, if your state allows you to drug test your employees, you can terminate an employee if they refuse to take a drug test. Moreover, like the DOT, you can stipulate what warrants a refusal to test.
As previously mentioned, the refusal to test guidelines must be clearly documented in your drug testing policies and procedures. It’s also important to ensure your specimen collector is aware of them.
Lastly, if an employee refuses a drug test after being involved in a workplace accident, workers’ comp isn’t likely to pay their claim. Notify your workers’ comp representative immediately. They’ll handle things from that point forward.
Employees who use drugs usually believe they are capable of acting and performing normally when under the influence. They aren’t. They are, undoubtedly, a safety hazard in the workplace. Drug use affects thinking and motor skills—both are necessary to have full control of all faculties while at work.
Just because someone believes they’re capable of functioning normally on the job even if they’ve used drugs doesn’t make it true. Employers have every right to drug test in the workplace for the sake of their entire workforce—and anyone else who comes into contact with them during the course of the workday. That includes assuming the worst about an employee who refuses to take a company drug test and sending them on their way.
