Dear Littler: We recently offered a position to a candidate at one of our retail locations. He had a reasonable amount of head hair at the time we offered the job. After learning that we require hair testing both for new hires, and for random screenings thereafter, he told us that he doesn’t have hair any more, and he probably won’t once he starts working. He insists that he cannot provide a hair sample for testing purposes. What do we do now?
–Stunned in San Francisco
Dear Stunned,
While it might seem outrageous, your “hairy situation” is not particularly unusual. Your decision will turn on several factors, including whether you still wish to hire him and whether your workplace drug-testing policy addresses such a situation. The Americans with Disabilities Act (ADA) could tangle the dilemma further, depending on the candidate’s reasons for claiming that he cannot undergo hair testing. Finally, state law may also affect your position on drug testing, particularly if this prospective employee would work within California.
Options for Testing
Assuming this candidate has no medical reason for removing his visible hair, you could call out his hare-brained scheme for what it is: a refusal to test. Such a refusal constitutes grounds for you to withdraw the conditional offer of employment. This approach might be particularly appropriate, for example, if your company strictly and consistently enforces the drug-testing policy with all current and prospective employees.
Your company presumably selected hair testing because it provides the most thorough information about a candidate’s recent drug use. Drug molecules, like other chemicals, are incorporated into the hair as it grows and remain in each strand of hair for the life of the strand. Based on the growth rate for head hair, the “look back” period for typical hair testing is approximately 90 days—far longer than a test analyzing urine or oral fluid samples. You may be able to collect hair for a sample from underarm or chest hair, if he is willing. This hair grows more slowly but can be used for drug-testing purposes – consult your testing provider with any questions you may have.
If he asserts, or if you know, that he does not have any useful hair samples to provide right now – let’s say he is a competitive swimmer or a body-builder who commonly removes visible body hair – you could offer to utilize a different test sample. For example, you could agree to accept a pre-hire...
