Quest Diagnostics Annual Survey Shows Drug Test Positivity Rates Continue to Climb

According to the annual Quest Diagnostics Drug Testing Index published yesterday, illicit drug use among U.S. employees continues to rise, resulting in the highest drug test positivity rates in the last 12 years.  This nationwide survey of more than 10 million workforce drug test results revealed:

  • Positive cocaine drug test results increased for a 4th straight year, resulting in a 12% increase in the general U.S. workforce in 2016.
  • Positive marijuana drug test results also increased among all three testing specimens (oral fluid, hair and urine). In Colorado and Washington (the first states to legalize recreational marijuana), positive marijuana test results increased 11% and 9% respectively, while the overall nationwide marijuana positivity rate increased 4%.
  • Similarly, since 2015, positive test results for amphetamines (including methamphetamines) increased by more than 8%. Positive test results for methamphetamines, in particular, increased 64% since 2012.
  • Heroin detection remained steady after four years of increases, while prescription opiate positivity declined slightly.

This increase in positive illicit drug test results occurred among both the general U.S. workforce and in safety-sensitive positions, such as pilots and truck drivers, for whom routine drug testing is mandatory under federal regulations.

Employers should consider whether they are equipped to respond to the upward trend in illicit drug use:

  • Consider whether your current drug testing practices adequately address the potential safety risks in your workplace. Review written drug testing policies and practices to ensure that they are up-to-date and compliant with all applicable federal, state and local testing requirements.
  • Merely conducting pre-employment drug testing may be insufficient. The Quest survey revealed that the positivity rate for cocaine in post–accident urine tests was more than twice that of pre-employment tests, indicating that employees may pass pre-employment tests, only to use illicit drugs during employment. Without adequate measures to detect illicit drug use during employment, employers (and employees) may be left vulnerable to workplace safety issues, and other negative impacts, arising out of workplace substance abuse.
  • The trend to legalize recreational marijuana continues in numerous states and will lead to more positive marijuana drug test results, as demonstrated by the increases in Colorado and Washington.
  • Training managers to identify potential illicit drug use at work and to enforce the Company’s drug testing policy is one of the greatest tools in addressing the myriad workplace issues posed by the use of illicit drugs.

West Virginia Enacts Law Permitting Broad Employment-Related Drug And Alcohol Testing

Workplace drug and alcohol testing in West Virginia traditionally has been scrutinized by the courts and has been available to employers in limited circumstances.  That will change dramatically this summer when the state’s new drug and alcohol testing law, the West Virginia Safer Workplace Act, takes effect.  Passed by the state legislature on April 8, 2017 and signed by the Governor on April 26, 2017, the Safer Workplace Act will significantly broaden the circumstances under which employers may conduct workplace drug and alcohol testing.  The law takes effect on July 7, 2017.

There are many key provisions that are beneficial to employers; however, employers must comply with all of the requirements of the statute in order to take advantage of its benefits.

First and foremost, employers who plan to test employees for drugs or alcohol are obligated to have a written policy that must be distributed to every employee subject to testing.  With a compliant written policy, employers are permitted to conduct drug and alcohol testing for a wide variety of legitimate employment-related reasons including: deterrence and/or detection of possible illegal drug use, on or off the job, or the abuse of alcohol or prescription drugs; investigation of possible impairment; investigation of accidents or employee misconduct; maintenance of safety; and, maintenance of productivity.

The Act mandates that any testing of employees must occur during, or immediately before or after, a regular work period.  Under the new law, drug and alcohol testing “is worked time for the purposes of compensation and benefits for current employees.”  Additionally, employers are required to “pay all actual costs for drug and/or alcohol testing” of both current and prospective employees.  If the required tests are conducted at a location away from the employee’s normal work site, the employer must also “provide transportation or . . . pay reasonable transportation costs to current employees.”

The Act also provides West Virginia employers with specific guidelines to be used during the testing process (including, for example, the use of a certified or approved laboratory; confirmatory testing by gas chromatography/mass spectrometry or another comparably reliable technique; allowing the tested individual to provide information that may be relevant to a positive test result; offering the tested individual the right to have a split specimen test at a different laboratory at his/her expense; among other things).

If a tested individual receives a confirmed positive drug or alcohol test result, or if a tested individual refuses to provide a specimen, the Act permits employers to take disciplinary and/or rehabilitative actions, such as: (1) a requirement that the employee enroll in an employer-provided or approved rehabilitation, treatment and/or counseling program; (2) suspension of the employee, with or without pay, for a designated period of time; (3) termination of employment; (4) refusal to hire a prospective employee; and/or, (5) other adverse employment action in conformance with the employer’s written policy and procedures, including any relevant collective bargaining agreement provisions.

Significantly, the Act permits employers to take action against “sensitive” employees who test positive.  A “sensitive” position is one in which an accident could cause loss of human life, serious bodily injury, or significant property or environmental damage.  If such an employee tests positive for drugs or alcohol, an employer is permitted to permanently remove the employee from the sensitive position and transfer or reassign the employee to an available non-sensitive position with comparable pay and benefits, or may take any other action, including termination or other adverse employment action, consistent with the employer’s policy (provided there are no applicable contractual provisions that would prohibit such actions).

If a West Virginia employer establishes a policy and program in accordance with the requirements of the statute, there are additional benefits, including:

  • no cause of action by an applicant or employee who has been subjected to an adverse employment action as a result of a positive test result or a refusal to test (unless he/she can show the employer’s action was based on a false positive test result and the employer had knowledge that the result was in error but disregarded the truth);
  • an employee who tests positive may be terminated and forfeits his or her eligibility for unemployment compensation benefits and, if injured at the time of the intoxication, indemnity benefits under the Worker Compensation Laws. The employer’s policy must expressly notify employees of these provisions in order for an employer to utilize them.

It is imperative for West Virginia employers to have a written policy that complies with the requirements of the Safer Workplace Act in order to take advantage of the law’s many benefits.  Employers with operations in West Virginia should review their drug and alcohol policies and consult with counsel to make their policies compliant.

Applicant’s Claim That Racially Biased Safety Officer Cancelled His Split Specimen Drug Test Was Insufficient to Establish Race Discrimination Under Cat’s Paw Theory

An employer that refused to hire an applicant based on a positive pre-employment drug test was entitled to summary judgment on the applicant’s race discrimination and civil conspiracy claims despite the applicant’s argument that the company safety officer cancelled his split specimen drug test due to discriminatory animus, according to the U.S. Court of Appeals for the Seventh Circuit. Turner v. Hirschbach Motor Lines, Case No. 15-3263 (7th Cir. Apr. 24, 2017).

The employer, a commercial trucking company, offered an African American applicant a commercial motor vehicle driver position that was contingent on a negative drug test. The applicant tested positive for marijuana. Pursuant to Department of Transportation requirements, the laboratory split the applicant’s urine specimen in two for purposes of retesting the specimen, if requested by the applicant. The company’s safety officer informed the applicant of his right to request a retest of the split specimen. The applicant claimed, however, that the safety officer falsely reported to the medical review officer that the applicant changed his mind about the retest and cancelled it. The applicant was not hired.

The applicant alleged race discrimination under a “cat’s paw” theory, which allows the applicant to impute the racial animus of a non-decision-maker (the safety officer) to the employer. To do so, the employee must prove that the non-decision-maker was a proximate cause of the adverse decision. In this case, it was undisputed that the employer did not hire applicants who failed a drug test, and the applicant here failed to argue that similarly-situated applicants of different races were treated differently. Thus, the Court held that without evidence that the drug test was a false positive or that the retest would have come back negative, a jury could not reasonably infer that the failure to hire was proximately caused by the safety officer’s alleged racial animus. The Court also affirmed summary judgment with respect to the civil conspiracy theory because there was no evidence of an unlawful agreement to cancel the applicant’s split specimen test.

West Virginia Enacts Medical Marijuana Law

West Virginia Governor Jim Justice signed legislation that legalizes the use of marijuana for medicinal uses on April 19, 2017. The new law, Senate Bill 386, known as “The West Virginia Medical Cannabis Act,” permits patients suffering from serious medical conditions including cancer, ALS, HIV/AIDS, multiple sclerosis, Parkinson’s disease, epilepsy, neuropathies, Huntington’s disease, Crohn’s disease, post-traumatic stress disorder, intractable seizures, sickle cell anemia, severe chronic or intractable pain, or certain spinal cord damage to use marijuana for medicinal use.  Medical marijuana only may be dispensed in the following forms:  pill, oil, topical forms (including gel, creams or ointments), vaporization or nebulization, tincture, liquid or dermal patch. Smoking marijuana is not permitted under the law.

Although most provisions of the law took effect immediately upon passage, no identification cards will be issued to patients until July 1, 2019.

There are several provisions in West Virginia Medical Cannabis Act that impact employers. First, there is a broad anti-discrimination provision:

No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical cannabis.

However, employers need not accommodate the use of marijuana at work, and may discipline employees who are “under the influence” of marijuana at work:

Nothing in this Act shall require an employer to make an accommodation of the use of medical cannabis on the property or premises of any place of employment. This Act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical cannabis in the workplace or for working while under the influence of medical cannabis when the employee’s conduct falls below the standard of care normally accepted for that position.

Nothing in this Act shall require an employer to commit an act that would put the employer or any person acting on its behalf in violation of federal law.

The law also does not permit any person to engage in and does not prevent the imposition of any civil, criminal or other penalty for the following:

Undertaking any task under the influence of medical cannabis when doing so would constitute negligence, professional malpractice or professional misconduct.

Additionally, the law prohibits the following in certain safety-sensitive jobs:

A patient may not operate or be in physical control of any of the following while under the influence of marijuana with a blood content of more than 3 ng/ml: (1) chemicals which require a permit issued by the federal government, state government, federal agency or state agency; (2) high-voltage electricity or any other public utility; (3) vehicle, aircraft, train, boat or heavy machinery;

A patient may not perform any employment duties at heights or in confined spaces, including, but not limited to, mining while under the influence of medical cannabis.

A patient may be prohibited by an employer from performing any task which the employer deems life-threatening, to either the employee or any of the employees of the employer, while under the influence of medical cannabis. The prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.

A patient may be prohibited by an employer from performing any duty which could result in a public health or safety risk while under the influence of medical cannabis. The prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.

While these provisions appear to benefit employers who operate safety-sensitive workplaces, they also raise a number of questions which are not answered by the statute, including, what is the definition of “under the influence of marijuana”? While most employers rely on urine testing for drugs, the active ingredient in marijuana still can show on a urine drug test days or even weeks after use (depending on the frequency of use).

Employers with operations in West Virginia should review their drug and alcohol policies and consult with counsel to determine how they will address these issues.

Unreliable Anonymous Tip Could Not Form Basis Of Reasonable Suspicion Drug Test By Public Employer

A public employee established a Fourth Amendment violation by several individual supervisors of his former employer when they selected him for reasonable suspicion drug testing – and later discharged him — based on an unreliable anonymous tip. Greer v. McCormick, 2:14-cv-13596 (E.D. Mich. April 10, 2017).

The Plaintiff, Ralph Greer, was a former employee of the Detroit Department of Water and Sewage (“DWSD”). He worked as a Construction Inspector and drove a DWSD truck to various sites to oversee construction and repair work that private contractors performed for DWSD.  DWSD had a policy requiring drug testing when employees were involved in accidents or when they returned from absences beyond a specified length.

One morning Greer was told to report for a drug test but was not given a reason for the test, so he refused. He subsequently was suspended and discharged for “possession, consumption, use of or being under the influence of” alcohol or drugs and for refusing the drug test.  Greer denied ever using drugs or alcohol while at work and sued five DWSD supervisors for their role in his selection for drug testing and subsequent discharge, arguing that the drug test was an unreasonable search and seizure in violation of the Fourth Amendment.

Defendants claimed that they had reasonable suspicion to test Greer, based on a call to their public relations department from a news reporter who passed along an anonymous tip from someone who claimed to have seen and photographed a black male rolling a marijuana cigarette while sitting in a DWSD-owned vehicle in a certain neighborhood in Detroit. The photographs, however, never were produced.  The reporter also passed along a vehicle number that allegedly appeared on the vehicle in the photographs that he never saw.  Based on that vehicle number, DWSD supervisors linked the vehicle as being assigned to Greer on the date in question.  No one, however, questioned Greer or attempted to verify whether he was even in that neighborhood on that date.  Greer denied being in that neighborhood on the date in question.

The Court held that uncorroborated anonymous tips, standing alone, cannot form the basis of a reasonable suspicion test against a public employee, and that the public officials had an obligation to establish the reliability of the anonymous tip before conducting a drug test. It was undisputed that no one at DWSD made any effort to corroborate or establish the reliability of the reporter’s tip.  No one saw the photos and no one made any effort to find out who took the photos.  The fact that Greer’s job was “safety-sensitive” also did not sway the Court because DWSD did not have a uniformly-applied safety-sensitive drug testing program, and, Defendants claimed that the test was based on “reasonable suspicion.”  The Court held that Plaintiff established a Fourth Amendment violation and that he was entitled to summary judgment on the issue of liability.

Licensed Medical Marijuana Caregiver’s Termination For Selling Drugs At Work Was Not Age Discrimination

A federal court in Michigan dismissed the age discrimination claim of a licensed medical marijuana caregiver who was terminated in connection with an investigation into drug activity at work. Henry v. Outback Steakhouse of Fla., LLC, No. 15-cv-10755 (E.D. Mich. April 18, 2017).

Medical marijuana is legal in Michigan, but the drug still is illegal under federal law and employers may implement drug policies which prohibit the use or possession of drugs on their premises. Outback Steakhouse has such a policy.  Specifically, Outback’s Employee Handbook states, “the illegal use, sale, or possession of narcotics, drugs or controlled substances while on the job or on Company property is strictly prohibited and is a dischargeable offense.”

After witnessing suspicious activity by four Outback employees, management began an investigation into whether drugs were being sold on company property. The Company decided to terminate four employees.  Those employees were given the opportunity to meet with management and explain themselves.  During those interviews, the employees stated that Bobbie Henry was selling drugs on company property to the staff and customers.  Management then conducted interviews of fifteen additional employees, and two of them indicated that Henry was selling marijuana on company premises. Management took the investigation findings to Outback’s Employee Relations Manager who made the decision to terminate Henry’s employment.

At the time of her termination, Henry was 48 years old and had worked as a bartender and server for Outback for seventeen years. She also held a license, under Michigan’s medical marijuana act, to act as a medical marijuana caregiver and sell the drug to patients. When confronted with the allegations, Henry admitted that she had sold marijuana to another Outback employee who was her “patient,” but denied that she had ever sold him marijuana on company property.

Henry subsequently brought an age discrimination claim against Outback. While it was questionable that Henry had established a prima facie case of age discrimination given that the four other employees who were terminated for the same conduct were younger than Henry, the court ultimately held that Henry could not show that Outback’s stated reason for her termination was a pretext for age discrimination.  Applying the business judgment rule, the court determined that Outback had established that it had an honest belief that Henry was violating company policy by selling marijuana on company property, and therefore, had established a legitimate, non-discriminatory reason for her termination.

The takeaway for employers is that although medical marijuana may be legal in the state in which they conduct business, employers still have the right to implement and enforce drug policies which prevent the use, possession or sale of drugs on employer premises.

Reporting Reasonable Suspicion Tests To Third Parties When No Suspicion Existed May Give Rise to Defamation and Invasion of Privacy Claims in Louisiana

Requiring employees to submit to directly observed reasonable suspicion testing and falsely reporting to third parties that the employees were tested because of reasonable suspicion may give rise to claims for invasion of privacy and defamation, according to two recent decisions by the U.S. District Court for the Western District of Louisiana.  Cook v. Warrior Energy Servs. Corp., 2017 U.S. Dist. LEXIS 55310 (W.D. La. Apr. 11, 2017) and Ron Bros. v. Warrior Energy Servs. Corp., 2017 U.S. Dist. LEXIS 55312 (W.D. La. Apr. 11, 2017).

Plaintiffs in both cases are current and former employees of Warrior Energy Services Corporation, a company that provides labor and related services for oil and gas drilling projects.  Plaintiffs alleged that, in July 2015, Warrior Energy Services required that they submit to hair, urine and breath testing under direct observation as part of an “unannounced en masse” drug testing event which was not based on any individualized suspicion.  After receiving the results – which plaintiffs claim were negative – the Company reported both the test results (including an initial unconfirmed positive result, which subsequently was confirmed as negative) that plaintiffs were tested for “reasonable suspicion” to a number of external drug-testing databases that were accessible to defendant’s customers.  Plaintiffs, who dispute that Warrior Energy Services had reasonable suspicion to test, subsequently sued the Company, alleging, among other things, claims for invasion of privacy and defamation under Louisiana statute.  The Company moved to dismiss. 

The Court denied Warrior Energy Services’ motion to dismiss the defamation claim, finding that the “reasonable suspicion” reports were sufficiently defamatory to state a claim for defamation under Louisiana law.  The Company argued that reasonable suspicion determinations are “opinions” and thus cannot be defamatory, as Louisiana law requires that a defamatory statement be a false statement of fact.  The Court disagreed, holding that a reasonable suspicion determination “implies” that certain facts exist, and that such “implied factual assertions” – even when couched as opinions – can give rise to a defamation claim.  It should be noted that while Louisiana’s drug testing statute limits the circumstances in which a defamation claim can be asserted against an employer, these limitations did not apply to Warrior Energy Services, as the State’s drug testing statute exempts employers in the oil and gas industry. 

The Court also denied the Company’s motion to dismiss the invasion of privacy claim.  The Court held that Louisiana law recognizes a tort for invasion of privacy when a defendant “unreasonably intrudes upon the plaintiff’s physical solitude or seclusion,” and that plaintiffs’ allegation that some of them were tested under direct observation of their genitals and in a manner that could be viewed by other employees was sufficient to establish such unreasonable intrusion at the pleading stage.  In addition, the Court held that plaintiffs stated a claim for “false light” invasion of privacy under Louisiana law, which occurs when a defendant exposes a plaintiff to “publicity” which “unreasonably places the plaintiff in a false light before the public,” provided such publicity is false and “objectionable to a reasonable person under the circumstances.”  Here, the Court stated that plaintiffs adequately pleaded a “false light” invasion of privacy claim by alleging that Warrior Energy Services reported unconfirmed positive tests results and reported that the tests were conducted under reasonable suspicion when no such reasonable suspicion existed.

The Court’s decisions underscore the risks of unsupported reasonable suspicion determinations and reporting those determinations to third parties. 

 

Maine Delays Implementation of Certain Provisions of Recreational Marijuana Law

Last November, Maine was one of four states in which voters approved a new recreational marijuana law. Maine’s law took effect on January 30, 2017; however, emergency legislation passed on January 27, 2017 delayed the implementation of certain provisions of the law.  Specifically, the emergency legislation:

  • Delayed the effective date of most of the provisions of the law (including the anti-discrimination provisions, discussed below) until February 1, 2018, so that the state licensing authority can establish and implement regulations concerning retail sales of marijuana;
  • Clarified that possession of a usable amount of marijuana by a juvenile is a crime, unless the juvenile is authorized to possess medical marijuana; and,
  • Prohibits possession of any edible retail marijuana products until February 1, 2018.

Maine’s recreational marijuana law provides that employers are not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale, or growing or marijuana in the workplace, and also are permitted to enact and enforce workplace policies restricting the use of marijuana by employees and discipline employees who are under the influence of marijuana in the workplace.  But the law prohibits employers from “refusing to employ a person solely because that person consumed marijuana outside the employer’s property.”  This language is problematic for employers who conduct drug testing because a drug test does not reveal when or where someone used marijuana.  It is impossible to learn from a drug test result whether marijuana was “consumed outside the employer’s property” because marijuana can stay in the human body for days or even weeks.  This language will make it difficult for Maine employers to conduct drug testing for marijuana, particularly in the pre-employment context.  Even if a Maine employer suspects that an employee is “under the influence of marijuana in the workplace,” the drug test result will not provide conclusive proof that the marijuana was consumed at work.

The Maine legislature has formed a committee to consider implementation of the recreational marijuana law and it is hoped that the anti-discrimination language will be revised.

Applicant Who Failed Pre-Employment Drug Test Could Not Show That Public Employer Violated Her Due Process Rights or Title VII

A federal district court recently dismissed a lawsuit in which a job applicant challenged a public employer’s decision to withdraw an offer of employment after the individual tested positive for cocaine on a pre-employment drug test.  Turner v. Richmond Public Schools, et al., No. 3:16-cv-256 (E.D.VA., March 28, 2017).  The federal action sought to recover damages for (1) the violation of Plaintiff’s Due Process rights under the Fourteenth Amendment to the United States Constitution; and (2) disparate treatment based on race and gender in violations of Title VII.

Plaintiff, an African American female, applied for a position as an Instructional Data Specialist with Defendant Richmond Public Schools.  After receiving a conditional offer of employment, Plaintiff submitted a urine sample for drug and alcohol screening; the test returned positive for cocaine.  Based on the test results, Richmond Public Schools rescinded Plaintiff’s offer of employment. Plaintiff requested reconsideration of the decision based on her concerns with the drug test procedures, disparate treatment between Plaintiff and other employees who had tested positive for drugs, and the lack of due process afforded to Plaintiff.

To state a viable due process claim, Plaintiff was required to show that she had a constitutionally protected liberty or property interest.  Plaintiff ultimately failed to state sufficient facts reasonably to claim that she held any liberty or property interest at issue in the action. The District Court determined that the conditional offer of employment could not support Plaintiff’s claim of entitlement to employment because Plaintiff had no reasonable expectation of entitlement to the job at the time Richmond Public Schools rescinded the employment offer.  Additionally, the District Court found that Plaintiff failed to state a claim under the “stigma-plus” standard, set forth by the U.S. Supreme Court in Paul v. Davis, 424 U.S. 693 (1976), necessary to establish a deprivation of liberty within the meaning of the Due Process Clause. The District Court explained that Plaintiff failed to identify any false statements made by Richmond Public Schools that placed a stigma on Plaintiff’s reputation and that were made in conjunction with Richmond Public Schools’ determination to rescind the employment offer.

Similarly, the District Court determined that Plaintiff’s complaint lacked specific factual allegations sufficient to state a claim for race or gender discrimination under Title VII.  Plaintiff alleged that there were instances in which white male employees tested positive for drugs but were not terminated.  The District Court distinguished Plaintiff’s situation, however, from white male employees because Plaintiff was not yet an employee at the time of her drug test and, thus, could not compare herself to employees of Richmond Public Schools who may have tested positive for drugs. The District Court also found that Plaintiff failed to identify any facts indicating that she and her comparators dealt with the same supervisors, were subject to the same standards or performed the same functions for the employer.

For the reasons stated, the District Court dismissed Plaintiff’s action in its entirety. Notably, Plaintiff did not assert a claim that the drug test constituted an unlawful search and seizure in violation of the Fourth Amendment, which is the most common claim asserted against public employers in the drug testing context.

President Trump Signs Measure That Will Allow Broader Drug Testing of Applicants For Unemployment Benefits

President Trump signed a Congressional Joint Resolution March 31 that will permit states to pass measures allowing for broader drug testing of applicants for unemployment benefits. The resolution nullified a U.S. Department of Labor final rule issued in August 2016 that permitted states to enact legislation to conduct drug testing of applicants for unemployment benefits “for whom suitable work is available only in an occupation that regularly conducts drug testing.”  In effect, the final rule limited such drug testing to applicants in occupations where drug testing was required, such as U.S. Department of Transportation-regulated jobs, and other jobs where drug testing was required under state or federal law.  Now, with the President’s approval of the Joint Resolution, there is no such limitation.

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