In short, yes. Under both Texas and federal laws, there is almost no limitation on a private employer’s right to adopt drug and alcohol testing policies for their employees. This means that employee drug testing laws in Texas generally allow employers to ask or require their employees to take a drug test, so long as the test itself doesn’t conflict with state or federal laws.
However, employers cannot violate federal or state protections when drafting their alcohol and drug testing policies and enacting random drug testing of their employees. The most important federal and state protection is that there must be no employment discrimination associated with the drug testing that is required by the employer.
In other words, an employer’s drug testing policies must be non-discriminatory and must not adversely interfere with an employee’s privacy rights. For example, it is common policy for an employer to drug test prospective employees, and they are required to pass the drug test before beginning their position with the employer.
In fact, drug testing may be mandated for specific types of employees, such as government employee drug testing for employees that are subject to the United States Department of Transportation mandatory testing guidelines.
Government jobs that affect the public at large generally require that employers adopt drug-free workplace policies and conduct drug testing. Additionally, individuals whose position may affect public safety, such as a bus driver, train operator, or airplane pilot, must also generally undergo random drug testing.
Importantly, employees and employers may also choose to execute an employment contract that includes drug testing provisions within the contract. Then, the employer would also be subject to the procedures laid out in their employment contract. Companies may also freely enact drug testing policies and procedures.
In general, a company-wide drug testing policy and procedure manual should address questions such as:
- What is considered to be a violation of the drug and alcohol policy?
- What employees are covered by the drug and alcohol policy?
- What disciplinary measures may result from violations of the policy?
- Will the company allow for employee rehabilitation in case of a violation?
This policy should then be provided in writing to all employees, and the employees must be given an opportunity to sign the policy acknowledging that they have received a copy of the policy. Generally, the policy will be included in an employee manual.
It is important to note that, in Texas, if an employee chooses to not sign the drug testing policy, it would be legal to terminate their employment. This is because Texas is an at-will employment state. This means that employment that is not secured with an employment contract may be terminated by either the employer or the employee at any point in time, for any reason or for no reason at all, so long as the reason is not illegal.
What Are the Rules for Testing Current Employees?
As mentioned above, under Texas employee drug testing laws, Texas employers are generally permitted to require that both prospective and current employees undergo drug tests. However, for an employer drug testing policy to be considered valid, an employer must be fair in their policies of testing all applicants and employees in similar positions.
Further, an employee drug testing policy can not violate state or federal law, such as singling out a single employee or applicant based on their:
- Race;
- Gender;
- Nationality;
- Origin;
- Sexual orientation; or
- Disability.
In other words, an employer may not drug test a single person based on a discriminatory reason. Further, if an employee works in a position that affects public safety, such as a bus driver or police officer, then random drug testing is often necessary and commonplace.
However, if there is a compelling reason for an employee to drug test an employee, the courts may consider those matters on a case-by-case basis. Current employees might be randomly drug tested but may not work in the public safety sector. In that case, the employer must be able to prove reasonable suspicion that the employee was using or abusing illegal drugs.
If the employee appeals the employer’s decision to conduct a drug test, and the court finds that the employer did, in fact, possess a discriminatory motive for administering the drug test, then the employee may be able to recover civil damages against their employer.
Can I Refuse a Drug Test at Work?
In short, you can refuse a drug test at work, however, your employer may then terminate you for doing so. However, there are situations in which you may legally refuse a drug test or decline to take a drug test.
For example, if you have been diagnosed with a medical condition that falls under the Americans with Disabilities Act (“ADA”), then you may refuse to take a drug test if the drug test would go against the reasonable accommodations provision under the ADA.
Additionally, you may refuse to take a drug test if it would violate a state law. For example, if you believe and can prove that the reason for the drug test is discriminatory, then you may refuse to take the drug test. Then, if your employer terminates you based on your refusal, you can seek damages for that termination.
Further, refusing drug tests based on religious reasons may also be grounds to file an employment discrimination lawsuit against your employer. However, in cases of religious discrimination, you must be able to prove that your employer only forces people who practice a certain religion to submit to random drug testing.
In other words, your refusal to take the drug test must usually be based on the refusal to submit to a discriminatory policy or based on state law in order for you to be protected against negative employer actions, such as termination.
What Are the Consequences of Refusing to Take a Drug Test?
As mentioned above, the most obvious consequence of refusing to take a drug test is that you may be terminated for your refusal. This is definitely the case if your employment contract or the company policies you agreed to have clear stipulations regarding drug use.
Further, in the absence of company policies or an employment contract that contains drug testing policies, employers in Texas are still allowed to terminate you from your position for any reason or no reason at all since Texas is an at-will employment state.
Importantly, failing a drug test can have almost identical consequences to refusing to take a drug test. A prospective employee will not likely be offered employment, and a current employee may be terminated for violating the terms of their employment contract, violating company policies, or for failing to meet their job duties.
As far as how the company will choose to act if an employee fails or refuses to take a drug test, the nature of the employee’s job, the employee’s role within the company, and the specific drug that was detected by the test all will likely play a factor in the company’s decision.
Additionally, employees who are terminated for failing or for refusing to take a mandatory drug test will typically also lose their employment benefits as well. This means the employee could potentially forfeit the health insurance benefits provided through their employer. Further, the employee may not be eligible for unemployment benefits.
Are There Any Exceptions?
In short, yes, there are exceptions for you having to take a mandatory drug test. Examples of common situations in which you can refuse to take a mandatory drug test and not be terminated or punished by your employer for doing so include:
- When you can prove that your employer’s request for you to take a mandatory drug test is based on discriminatory reasons that would amount to workplace discrimination or be considered a “selective drug testing” policy;
- When you are able to demonstrate that you did not actually submit to the drug testing, but your employer performed drug testing without your approval or knowledge.
- For instance, if your employee collects a sample of your hair without your knowledge or approval and then submits that for hair follicle drug testing, that will be considered a complete invasion of your privacy and illegal;
- When you can prove that you have a disability that is protected by the ADA, and your employer has failed to comply with the reasonable accommodations necessary to administer a drug test to you per the ADA.
Importantly, a local attorney in Texas will be familiar with the most up-to-date state and federal laws regarding drug testing, as the laws regarding medicinal and recreational drug use have been changing quickly on the state and federal levels.
Do I Need an Attorney if I Refuse to Take a Drug Test?
You might have been selected to take a drug test for prospective employment or are being asked to submit to a drug test as a current employee, and you suspect that the drug test is for a discriminatory or illegal reason. In that case, it is in your best interests to consult a Texas discrimination lawyer as soon as possible.
LegalMatch can help you locate an experienced Texas discrimination attorney near you and set up a consultation with them. At your initial consultation, the attorney can analyze your case and help you determine if you have a solid legal foundation for refusing the drug test.
An attorney will then also be able to provide you with your best course of legal action and answer any questions you may have. Finally, if you have been terminated as a result of a refusal to take an illegal test, then an attorney will be familiar with all of the laws necessary to bring a civil lawsuit against your employer for damages or reinstatement of your job on your behalf.
