Drug testing is a fait accomopli in existing employment law. It is permitted and employers who have legitimate concerns regarding drug use are becoming increasingly interested in conducting drug testing. This is particularly true in the case of a new applicant for employment.
So, you have an applicant for the job. You want to drug test by way of a urine sample. It turns out that the applicant has limited kidney function and cannot produce appropriate quantities of testable urine. You can just ignore this application and deny the job based upon a refusal to test–Right?
Not so fast! The EEOC recently settled a case on these facts and the employer paid $50,000 for not finding another way to accommodate the testing requirement to give the applicant an equal chance for employment. EEOC points out that testing of hair samples, blood testing, etc. are all suitable alternatives.
THE TAKEAWAY? If you are going to require drug testing and the applicant or employee has a legitimate reason for not testing in the way you as an employer prefer, you better look for other ways to permit that person to test or run the risk of a lawsuit which likely will not turn out well.