The short answer is yes. 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. This denial must apply to all job candidates as a company policy.
Since drug testing laws fall mainly on the shoulders of the state, we may see some changes to testing policies in the upcoming years as the legality of marijuana usage continues to change.
There are exceptions to requiring drug testing. If an applicant suffers from a disability that prevents him/her from taking the test in a standard manner, or by the required time, companies are expected to make a “reasonable accommodation” for the applicant, according to the Americans with Disabilities Act.
Drug Testing for Job Candidates
Companies drug test for a variety of reasons but many have safety concerns, particularly in manufacturing and transportation industries. An employer can require drug testing but the following provisions should be adhered to in order to avoid workplace discrimination:
- The candidate must be informed ahead of time. In Florida, a drug-free workplace must advertise that employees will be tested in its job ad. The test can be administered after the prospective employee receives a conditional offer letter.
- All job candidates (with the exception of someone protected under the Americans with Disabilities Act) must be required to take it.
- The test must be performed at a clinic or lab.
Drug Testing for Employees
Once you’ve been hired, the drug testing laws are slightly different. An employer can test employees for a variety of reasons including: suspicion-based, post-accident, annual, and random.
Suspicion-based testing requires the employer have a reason behind the test. An employee’s suspicious behavior could involve:
- Unexplained changes in behavior
- Decline in work production or quality
- Slurred speech or unresponsiveness
- Sloppy appearance
- Erratic behavior
- Unsafe behavior (including post-on-the-job-accident
- A report of drug use
If any of the above is true, an employee may be singled out for testing. In Florida, employees may also be singled out for testing if it’s part of a regularly-scheduled fitness for the position test or the employee is returning from rehabilitation for a positive drug test.
However, if the employer is unable to prove suspicious behavior (or the other provisions mentioned), and the employee is terminated based on refusing drug testing, the employer may be liable for discrimination and the employee may have grounds for a wrongful termination case.
How an Employment Attorney Can Help
Speaking with an employment attorney can help you understand the laws and exceptions surrounding the legalities of drug testing, including how if you were actively seeking help for a drug problem, you may be protected from termination.
If you feel your employer has violated the law or public policy in drug testing, or you’ve been discriminated against, talk to someone knowledgeable in employment law in Tampa regarding your wrongful termination. Contact Wenzel, Fenton, Cabassa P.A. today to schedule your free consultation.