The NLRB says sending a worker for a drug test is the same as disciplinary action and the worker gets to be accompanied by a Union representative. Manhattan Beer Distribs. LLC, 362 N.L.R.B. No. 192 (August 27, 2015). In this case, a delivery worker had an workplace accident and, the next day, came to work with glassy, bloodshot eye and “reek[ing] of the smell of marijuana.” Not surprisingly, the boss demanded that he take a drug test. The worker refused because he could not locate a union steward to accompany him. The company fired him for refusing to take the test.

The NLRB ruled that the worker had the right to union representation during the test, and that firing him for refusing to take the test in those circumstances violated his rights to union representation. In doing so, the NLRB ruled that the drug test should be considered the equivalent of a disciplinary investigation, creating the right to representation. And while the worker could not demand an indefinite delay to the test, insisting on an immediate test violated his rights. Therefore, his termination for refusing to take the test also violated his rights under the NLRA.

Employers will have to update their drug testing procedures and account for this additional delaying tactic.