Last updated: July 13, 2020
Employees who use drugs certainly don’t want their employers to be aware of it! Avoiding the drug test would be an easy out for them. However, employers know that and if you participate in a drug-free workplace program, your drug testing policy stipulates how to handle the situation when an employee refuses a drug test.
If it doesn’t, you need to include it immediately.
Regulations in place
The DOT regulates all industries that involve the transportation of goods or provides transportation for passengers. They also regulate workers on the road en route to provide services such as plumbers, landscapers, or the pool guy.
If employing anyone in the safety-sensitive workforce, 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, there’s a procedure in place that is followed specifically. Ultimately, the DOT views a refusal to test as a positive test result. The employer removes the employee from service immediately.
However, many individuals have a hand in the DOT drug testing process. Who gets the final call depends on how it passes through the proper chain-of-command.
Straight from the lab
The laboratory sends all positive and inconclusive drug test results directly to the assigned Medical Review Officer (MRO). MRO’s 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.
- Refusal to participate at any point in the test.
MROs make the final decision. Neither an employer or their designated representative can alter it.
When things don’t get that far
Some refusal to test situations fall to the employer or their DER (Designated Employer Representative). If a situation arises at the test site, the technician documents the information and should contact the employer immediately.
Refusal to test situations 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. It’s your responsibility to ensure the time documented on the chain-of-custody form reflects that it was allotted.
- Taking too long to report—It’s up to employers to decide a reasonable amount of time to wait if an employee doesn’t show up. Document the determined amount of time in your refusal to test policy. Furthermore, scheduling a set appointment time and using a TPA that documents arrival time makes your job much easier.
- Failure to provide a urine sample
- Declining an additional drug test request—This includes not reporting for an additional 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 cooperate 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, it’s only considered a refusal if the employee stops the test while 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 make the determination 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 deem necessary.
Free rein
If you aren’t federally mandated to drug test your employees, you still need to make sure you’re in compliance with the laws in your state. For instance, Nevada began banning employers from placing marijuana on pre-employment drug tests on January 1st of this year. In addition, some states have laws in place protecting employees who use medical marijuana.
Generally speaking though, if your state allows you to drug test your employees, you can terminate them if they refuse to take a drug test.
Moreover, like the DOT, you can stipulate what warrants a refusal to test.
As previously mentioned, you need to have the refusal to test guidelines specified in your drug testing policies and procedures. It’s also important to make sure that your collector is aware of them.
Lastly, if an employee refuses a drug test after being involved in a workplace accident, workers’ comp probably won’t pay their claim. Notify your workers’ comp representative immediately. They’ll handle things from that point forward.
Employees who use drugs may not believe it themselves, but they’re a safety hazard in the workplace. Drug use affects thinking and motor skills—both extremely important facets to have in your full control 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 continue drug testing in the workplace for safety’s sake.
And, that includes assuming the worst about an employee who refuses to take a company drug test and sending them on their way.
