Can they do this?

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Hello All: Ok here is my question. I was called into my managers office and due to the fact that I take frequent bathroom breaks and give alot of meds was asked to provide a hair sample drug screen. I was told that no meds were missing, my charting was impecable and my behavior was fine. I was in shock that they asked me to do this. Either way I told my boss I was not comfortable providing a hair sample because my hair does not grow and is very thin and fall out due to a medical condition (my thyroid was removed when I was 7 yrs old and have taken meds for it, for 27yrs) I have not had my hair cut or clipped in 10 yrs by a professional so I know I am not letting some amateur near my head with sicissors. I did do some research and talked with other people who said they take chunks of hair. 120-240 hairs with each chunk. I dont have that much hair to give. Now I did take it upon myself to provide a urine drug screen and offered to give blood and saliva but that was not good enough for them. I was told that refusing the hair test was the same as having a positive test result and I would not be able to come back to work until giving a hair sample. After 1.5 weeks of waiting for them to call me, I finally called my boss and told her I would not be coming back to work there. She stated it was out of her hands when I refused the test. I never said the word refuse to them I only stated I did not feel comfortable taking the hair test due to my thinning hair and it not growing. My boss said she would send me my separation papers, that I would need them. (not sure what that meant) and we ended the phone call. I feel like I was made to quit. I was also told it was not a policy that had been implemented or put into action just a request from them. However I could not come back to work until i give the hair sample. my questions are, 1. Is this legal? 2. can they report me to the BON 3. would they have been able to legally fire me if I didnt take the test since hair sample was not policy? Keep in mind I took a urine drug screen and offered blood and saliva...I am a wreck now cause I have no job and finding it difficult to find one. Please give me some answers!! Thanks!

Now you're out of a job in this economy. I'd rather be bald then not have a job. In fact i work with a bald social worker (female) and she looks great, and my hair is also thinned due to thyroid disease. Just should've given the darn hair sample. My goodness, why split hairs (pardon the pun) about something like this. Your hair would eventually grow back. Wow, it amazes me how many nurses are willing to quibble about stuff like this and then lose a job over it in this retched economy. Good luck finding another job.

Sometimes it pays to be practical about matters.

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Specializes in CRNA, Law, Peer Assistance, EMS.
Well this is the thing...I live in TN. However even though this does not matter to a lot of people I did immediately provide a test that day, a urine test. Not going to get all religious on anyone but it is against my religion to cut my hair and second I have a medical condition that is very traumatizing to me emotionally. Therefore I have been discriminated against and THAT is against the law. This is a free country and noone can be forced into cutting their hair.

OKAY.......

I apologize. I was not paying attention the way I should have and allowed myself to assume that since someone was commenting vehemently on what the state of NC does, then the issue must have arose in NC.

SO....considering the relevant provisions of Tennessee law, return to my ORIGINAL STATEMENT on drug free workplace testing:

Here is the deal. Your employer has a published 'drug free workplace' policy. In exchange for instituting and adhering to that policy they receive a reduced worker's compensation premium...which is a significant chunk of change. If they FAIL to enforce and abide by that policy however they can LOSE their reduced premium and may have to pay back the difference for periods they failed. EVERY state has 'drug free workplace' laws governing employers which are patterned on federal law from the department of labor. Common to EVERY state is the requirement that in order for drug testing to be lawful in the workplace, an EXISTING WRITTEN policy describing the circumstances under which testing can occur, AND THE METHOD OF TESTING TO BE USED must exist. NO changes can be made to such a policy and put in place without first publishing the changes and distributing to employees, and then waiting a reasonable time before implementing so as not to appear to target an individual...say 2 months.

If your employer did not have a written policy which stated they could demand that you submit to a hair follicle drug test, for cause, and what drugs would be tested for, they could not lawfully require one. And they certainly could not lawfully terminate your employment for refusing.

The EEOC is the proper agency to file a complaint with and you should do so. In fact the EEOC is the ONLY avenue you have to challenge a wrongful termination. ONLY once they exhaust their investigative and mediation process can you obtain a 'right to sue' letter from them which is the ONLY condition which allowss you to file a civil lawsuit against the employer for this.

Should any problems arise from the board of nursing, which there is absolutely NO guarantee that they will, you will certainly want to retain an attorney well experienced in defending nurses before the board. There is NO advantage at all in calling the board or assembling a legal team to start being paid when there is no legal issue they can yet address. You need a copy of the drug free workplace policy in effect at the time to know whether you have a viable EEOC argument. If it says they can do a hair test and your refusal means you can be terminated then you are likely out of luck.

Tennessee Law is very specific:

0800-02-12-.04 NOTICE TO JOB APPLICANTS AND EMPLOYEES. (in relevant part)

(1) It is a requirement of the drug-free workplace program that, prior to testing, the employer give

a one-time written policy statement to employees and job applicants which contains:

(a) A general statement of the covered employer’s policy on employee drug and alcohol

abuse, which must identify:

1. The types of drug or alcohol testing an employee or job applicant may be

required to submit to, including reasonable-suspicion drug or alcohol testing or

drug or alcohol testing conducted on any other basis; and

2. The actions the covered employer may take against an employee or job

applicant on the basis of a positive confirmed drug or alcohol test result.

(b) A statement advising the employee or job applicant of the existence of this rule;

(e) The consequences of refusing to submit to a drug or alcohol test;

Read the entire TN drug free workplace laws here; Powered by Google Docs

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Specializes in Impaired Nurse Advocate, CRNA, ER,.

Could you be a little more specific foraneman? ;)

Jack

Actually, thank you for such a thorough and educational post. I always enjoy reading what you have to say and look forward to more posts! (Your check will be in the mail tomorrow...:lol2: :rolleyes:)

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Specializes in CRNA, Law, Peer Assistance, EMS.
this is what the eeoc states...

religious discrimination & reasonable accommodation

the law requires an employer or other covered entity to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. this means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.

examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.

is it against your religion to have a hair drug test??!! this provision is not applicable...relying on it will never be successful.

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Specializes in CRNA, Law, Peer Assistance, EMS.
Could you be a little more specific foraneman? ;)

Jack

Actually, thank you for such a thorough and educational post. I always enjoy reading what you have to say and look forward to more posts! (Your check will be in the mail tomorrow...:lol2: :rolleyes:)

Jack,

:smokin: I will be in Ohio for Thanksgiving and I guess I can swing down and reenact an Indian raid in the dead of night.

G.S. :yeah:

:hrnsmlys::oornt:

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Specializes in Impaired Nurse Advocate, CRNA, ER,.
Jack,

:smokin: I will be in Ohio for Thanksgiving and I guess I can swing down and reenact an Indian raid in the dead of night.

G.S. :yeah:

:hrnsmlys::oornt:

Geez!! Dad would have a heart attack! (Or he might shoot you with the 12 gauge behind his Lazy-Boy. And no, I am NOT his Lazy Boy!)

Hope your Mom (and Dad) are doing well!

Jack

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not trying to be lewd....but the hair on your head is not the only hair on your body......

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Specializes in Psych ICU, addictions.
not trying to be lewd....but the hair on your head is not the only hair on your body......

But I sincerly doubt that other hair would grow long enough for testing purposes. Seriously.

OP: unfortunately, in many facilities (such as my own) refusing any drug test for any reason is equivalent to it being a positive test. Basically, if I refuse they would consider the results positive.

Do I agree with this? Not always.

Am I stuck with it? Well, if I want to keep my job I'm stuck with it. My BON might not take action against my license for refusing a drug test, but my employer could punt me to the curb and I'd be out of a job.

I agree with jackstem from many posts prior: don't try to DIY to fix this--get legal help ASAP. Best of luck.

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Originally Posted by morte viewpost.gif

not trying to be lewd....but the hair on your head is not the only hair on your body......

Honestly, they can have hair from anywhere else on my body, just not my head. For people who dont have any self esteem or self conscious issues it is easy to tell someone what they should do or should have done. I feel very strongly about this and not willing to sacrifice my beliefs or my personal appearance (even if only I notice). I have no restrictions or actions against my license thus far, and have never had a problem finding a job, even in this economy. If a person is truely innocent and has done nothing wrong, then they usually do not have a problem standing up for what they believe in, even if it could possibly cost them. A guilty person does not want to face their peers for fear of the secrets they have buried may come out so usually they take what is given to them and never say a word.

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Specializes in CRNA, Law, Peer Assistance, EMS.
Originally Posted by morte viewpost.gif

not trying to be lewd....but the hair on your head is not the only hair on your body......

Honestly, they can have hair from anywhere else on my body, just not my head. For people who dont have any self esteem or self conscious issues it is easy to tell someone what they should do or should have done. I feel very strongly about this and not willing to sacrifice my beliefs or my personal appearance (even if only I notice). I have no restrictions or actions against my license thus far, and have never had a problem finding a job, even in this economy. If a person is truely innocent and has done nothing wrong, then they usually do not have a problem standing up for what they believe in, even if it could possibly cost them. A guilty person does not want to face their peers for fear of the secrets they have buried may come out so usually they take what is given to them and never say a word.

When it comes to the board of nursing, I hjave to disagree. Experience has taught that guilt and innocence are peripheral matters to them compared to appearance.

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Specializes in LTC, Psych, Med/Surg.
When it comes to the board of nursing, I hjave to disagree. Experience has taught that guilt and innocence are peripheral matters to them compared to appearance.

That is SO true, foraneman!!! The BON's do everything they can to appear zealous in policing the "bad nurses." Determining who is really guilty or innocent is far beyond their capabilities or their desires.

Catmom :paw:

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Specializes in OR, ER, Oncology, CPC.

I have to say, I live in TN and have become feel I have become very familiar with the BON :( They took over a year to get to me but thankfully I had already turned myself in. I understand you say you have not done anything wrong but your employer has every right to report you for refusing the hair sample. They can report you for just plain old unprofessional contact from what I have seen on the website. Go on there and read the board orders and you can get an idea of what they put licences on probation for or even just reprimand. You may want to seek legal representation like Jack said. The board is soooo unpredictable, in my eyes, so why not have the legal backup? Good luck and keep us posted.

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