Federal Appeals Court Upholds Dismissal of Public Employee For Failing Random Drug Test

The Unified Government of Wyandotte County/Kansas City, Kansas did not violate a public employee’s Fourth Amendment rights by requiring the employee to submit to a random drug test or by terminating his employment when he tested positive for cocaine, according to a recent decision by the U.S. Court of Appeals for the Tenth Circuit.  Washington v. Unified Government of Wyandotte County, Kansas, 847 F.3d 1192 (10th Cir. 2017).

Roberick Washington was employed as a lieutenant at the Wyandotte County Juvenile Detention Center.  Because the Unified Government classified the lieutenant position as safety-sensitive, Washington was required to submit to periodic, unannounced drug tests.  While the Unified Government’s drug and alcohol testing policy stated that “failure to pass a drug or alcohol test is just cause for discipline including discharge,” an internal Human Resources guide recommended suspension for those employees testing positive for the first time.

In 2012, Washington was selected for a random drug test and was fired after testing positive for cocaine.  He subsequently sued the Unified Government, alleging that the random drug test violated his Fourth Amendment rights against unreasonable searches; that the Unified Government deprived him of his constitutional interest in continued employment; and, that the Unified Government breached an implied contract by terminating his employment and not suspending him as suggested by the Human Resources guide.  The Unified Government moved for summary judgment, which the District Court for the District of Kansas granted.

The Tenth Circuit upheld the District Court’s grant of summary judgment.  With regard to Washington’s Fourth Amendment claim, the Tenth Circuit held that the Unified Government’s search (i.e., random drug test) was reasonable given the safety-sensitive nature of the lieutenant position, noting that random testing by public employers is defensible where the tested individuals would threaten workplace or public safety.  The Unified Government argued that it administered random drug testing to juvenile lieutenants to “ensure the safety and welfare of the children housed in the Juvenile Detention Center.”  While Washington argued that there existed material issues of fact about whether the position actually was safety-sensitive – according to Washington, his responsibilities largely were administrative – the Court disagreed, noting that Washington was required to report to the detention facility floor in certain emergency situations, and that he filled in for “undeniably safety-sensitive” positions when other employees were late or absent.  That he only “sporadically” filled in for these “undeniably safety-sensitive” positions was irrelevant, as the Court held “the frequency or regularity . . . does not affect our conclusion, since his on-call status made paramount his preparedness.”  The Court did note, however, that its analysis might change if Washington’s job duties “were entirely administrative, or if he were not employed in a juvenile corrective facility.”

With regard to his claim that the Unified Government deprived Washington of his constitutional right to continued employment, the Court held that public employment in Kansas is presumptively at-will, and that the HR guide did not limit this at-will status, as the guide included a disclaimer that it did “not modify the status of employees as employees-at-will or in any way restrict the Unified Government’s right to bypass the disciplinary procedures suggested.”  For those reasons, the Court also upheld dismissal of the breach of implied contract claim.

Employee Suspected of Drug Diversion Could Not Establish “Regarded as Disabled” Claim

An appellate court recently affirmed summary judgment in favor of a hospital that terminated the employment of a nurse for diverting medications, rejecting her claim that she had been perceived to be a drug addict by her employer. Demastus v. University Health System, Inc., No. E2016-00375-COA-R3-CV (Tenn. Ct. of Appeals March 2, 2017).

Laura Lee Demastus worked as a nurse for University Health System, Inc. (the “Hospital”) for three years. The Hospital became suspicious that Demastus was illegally diverting medications, after its computer records revealed that she checked medications out, but failed to record that the medications were administered to any patient or were destroyed.  The Hospital’s Compliance Officer began an investigation and uncovered several examples of missing medications, including oxycodone and benzodiazepines.  Demastus met with the Compliance Officer, and her supervisor, to discuss the allegations, but she was unable to explain or defend any of the suspicious transactions.  She stated that she did not have a drug abuse problem and also agreed to submit to a drug test.  Before the results of the drug test were provided to the Hospital, Demastus was terminated for gross misconduct.

Demastus subsequently filed a lawsuit against the Hospital under the Tennessee Disabilities Act (“TDA”), alleging that she had been discriminated against because the Hospital perceived her to have a drug addiction when she did not, and that she was wrongfully terminated due to that perception. The Hospital denied that it viewed Demastus as disabled or that it perceived her as having a current drug addiction, and instead, the Hospital cited the outcome of the investigation and Demastus’ inability to explain the missing medications as the sole reason for her termination.

The Court rejected Demastus’ claim because the definition of “disability” under applicable Tennessee law specifically excludes “current, illegal use of, or addiction to, a controlled substance.” Demastus therefore could not establish a prima facie case under the TDA whether she was terminated due to an actual drug addiction or the Hospital’s belief that she currently was addicted to drugs.

Even if Demastus had been able to establish a prima facie case of discrimination based on a perceived disability, the Court held that the Hospital’s evidence that Demastus had illegally diverted medications was a legitimate, nondiscriminatory reason for her termination, and Demastus offered no evidence of pretext.  Thus, summary judgment for the Hospital was appropriate.

The takeaway for employers in a situation such as this is to focus on the employee’s misconduct (theft, in this case), rather than on any actual or perceived disability.

U.S. Senators Seek Clarification From Department of Justice Regarding Federal Marijuana Enforcement Priorities

In light of White House Press Secretary Sean Spicer’s recent comments that the Department of Justice may seek “greater enforcement” of the federal laws prohibiting the recreational use of marijuana, eleven U.S. Senators sent a letter to U.S. Attorney General Jeff Sessions seeking clarification of the DOJ’s position. In a letter dated March 2, 2017, Senators Elizabeth Warren (D.-MA.), Lisa Murkowski (R.-AK.), Patty Murray (D.-WA.), Ron Wyden (D-OR.), Jeffrey Merkley (D.-OR.), Maria Cantwell (D-WA.), Edward Markey (D-MA.), Brian Schatz (D.-HI.), Catherine Cortez Masto (D.-NV.), Cory A. Booker (D.-N.J.), and Michael Bennet (D.-CO.) stated that:

“It is essential that states that have implemented any type of practical, effective marijuana policy receive immediate assurance from the DOJ that it will respect the ability of states to enforce thoughtful, sensible drug policies in ways that do not threaten the public’s health and safety. This ensures that state infrastructure, including tax revenue, small businesses, and jobs, can be protected; DOJ resources can be used most effectively; and most importantly, that marijuana can be properly regulated to improve public health and safety.”

More specifically, the U.S. Senators asked the Attorney General to continue to follow the policy set forth in the “Cole Memorandum.” The Cole Memorandum, issued by DOJ in 2013, articulated the federal government’s enforcement priorities with respect to marijuana, noting that while DOJ is committed to the enforcement of the Controlled Substances Act (which makes marijuana illegal), it also is committed to using its limited investigative and prosecutorial resources to address the most significant threats.  DOJ’s enforcement priorities include:  preventing the distribution of marijuana to minors; preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels; preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity; and, preventing violence and the use of firearms in the cultivation and distribution of marijuana; among other things.  Outside of those enforcement priorities, DOJ expressed its willingness to rely on state and local governments who have enacted marijuana laws to implement “strong and effective regulatory and enforcement systems that will address the threat that those state laws could pose to public safety, public health, and other law enforcement interests.”

The Senators requested an opportunity to comment on any shift in policy from that expressed in the Cole Memorandum, to avoid disruption of existing regulation and enforcement efforts.

Currently, eight states (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington) and the District of Columbia have recreational marijuana laws, while twenty-eight states and the District of Columbia have medical marijuana laws.

Court Upholds Dismissal of Employee Based on Refusal to Submit to Reasonable Suspicion Drug Test

The highest court in West Virginia recently affirmed the dismissal of a lawsuit in which an employee challenged the decision to terminate her employment after she refused to submit to a reasonable suspicion drug test. Layne v. Kanawha County Board of Education, No. 16-0407 (W.VA. Feb. 17, 2017).  The case highlights the right way to conduct reasonable suspicion testing, and illustrates the usefulness of such testing to employers.

Petitioner was a middle school sign language interpreter who was observed behaving erratically by five employees. Specifically, the employees observed the interpreter: (1) waiving her arms about as if she was fighting with someone; (2) chasing pieces of paper across the school’s parking lot; (3) staggering about a classroom; and, (4) leaving a bathroom that smelled like something had been lit on fire.  These observations were reported to the school principal, who then met with the interpreter and saw that she: (1) could not sit still; (2) had glassy eyes; (3) had dry mouth and was rambling; (4) was overly talkative and displayed “exaggerated politeness”; (5) displayed “quick moving” actions and “body contortions; could not hold her pen in her hand”; (6) had messy hair; (7) seemed fixated on items in her bag; and, (8) repeatedly asked the principal whether she appeared to be coherent.  The principal recorded these observations at the time on the school’s Reasonable Observation Checklist Form, consistent with the school’s written policy.  Concluding that the interpreter’s behavior was “drastically different” from her usual demeanor, the principal suspected that the interpreter was impaired and asked her to submit to a drug test.  When the interpreter refused, the consequences (i.e., disciplinary action) were explained and after refusing further, the school suspended the interpreter.  She subsequently was advised that failing to cooperate with the drug testing process is grounds for termination (as set forth in the school’s policy), and was notified that the school would not be renewing her employment contract.

During the litigation that followed, the interpreter argued that her behavior was attributable to several medical conditions, including scoliosis, anxiety and carpal tunnel syndrome. These arguments were rejected in the lower courts and the Supreme Court of Appeals found no error. The principal was familiar with the interpreter’s customary behavior (even with her stated medical conditions) and the principal concluded that her behavior on the date in question was “drastically different and unusual”.  That fact was a sufficient basis for reasonable suspicion drug testing.

Reasonable suspicion drug and alcohol testing can be a useful tool in managing employees who appear to be impaired at work. Employers who conduct such testing should:

  • Have a written drug and alcohol testing policy that clearly articulates the types of testing that will be conducted as well as the disciplinary consequences for refusing to test and testing positive;
  • Train managers to understand what constitutes reasonable suspicion. These decisions must be made as soon as possible after the observed behavior so that testing can be conducted in a timely manner. Untrained managers may not know what to do or may wait to take any action;
  • The key issue, as discussed in the case above, is to be able to articulate why the employee’s behavior is “drastically different” today, in comparison to the way the employee typically behaves;
  • Recording the observations at the time the conduct occurs is critical. It is helpful to create reasonable suspicion drug and alcohol test reports and/or checklists to assist with the contemporaneous documentation of the events; and,
  • An employee may provide excuses (such as an underlying medical condition) to avoid testing or disciplinary action. The employer still should proceed with the reasonable suspicion drug and alcohol testing if there is sufficient basis to do so.

Trump Administration May Enforce Federal Laws Prohibiting Non-Medical Use of Marijuana

In one of the Trump Administration’s first public statements on recreational marijuana, White House Press Secretary Sean Spicer stated in a press conference today that the Department of Justice may seek “greater enforcement” of the federal laws prohibiting the recreational use of marijuana.

Mr. Spicer said that there is “a big difference” between medical marijuana and recreational marijuana. He stated that President Trump understands the pain and suffering that people with debilitating illnesses endure and that medical marijuana brings them comfort.  He also noted that in the budget bill passed by Congress in 2014, the Department of Justice was not authorized to use federal funds to prosecute users of medical marijuana in the states where it is regulated.

But recreational marijuana is a different issue, Mr. Spicer said, particularly in light of the opioid crisis in this country. When pressed on how the White House will address recreational marijuana, Mr. Spicer deferred to the Department of Justice, stating that, “I do think you’ll see greater enforcement.”  The Department of Justice will be looking at the issue, and, “I believe they are going to continue to enforce the laws on the books with respect to recreational marijuana.”

Attorney General Jeff Sessions did not reveal how he will approach recreational marijuana during his confirmation hearings last month. In response to a question from Sen. Patrick Leahy, Sessions stated that he “won’t commit to never enforcing federal law.”

Currently, eight states (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington) and the District of Columbia have recreational marijuana laws.

Refusal to Submit to Drug Testing Requires Evidence of Intent, in Kansas Workers’ Compensation Case

An appellate court in Kansas ruled that an insufficient urine specimen, without evidence of intent to thwart the drug test, is not a refusal to submit to a test for purposes of the Workers’ Compensation Act. Byers v. Acme Foundry, 2017 Kan. App. LEXIS 12 (KS. Court of Appeals January 27, 2017).

Mr. Byers was injured at work when a piece of metal struck his left elbow. He was taken to the emergency room for treatment.  After spending the majority of the day in the emergency room, Mr. Byers returned to his employer, Acme Foundry, with the intent of going home.  Upon his return to work, Mr. Byers was informed by Acme’s in-house nurse that, pursuant to Acme’s policy, he must submit to a post-accident drug test before he could leave. Mr. Byer was provided with a specimen cup and provided instructions on how much of a urine sample was needed in order for the test to be completed.  Mr. Byers provided a urine sample, but the amount was inadequate and did not register the temperature gauge on the cup. Acme’s representatives explained to Mr. Byers that they needed to get a temperature reading and that the specimen could not be used without one.  Mr. Byers walked out the door, even though he was advised that he could lose his job if he did so.

Acme’s in-house nurse then threw the urine sample in the trash. Mr. Byers subsequently was terminated for refusing to submit to the post-accident drug test.

The Administrative Law Judge determined that Byers had forfeited his benefits under the Workers’ Compensation Act because, by providing an insufficient urine sample, he had effectively refused to submit to a drug test at the request of his employer. However, the Court of Appeals found that the term “refusal,” as used in the statute, carried with it the elements of willfulness or intent not to comply with the drug test, and that the facts did not support a finding that Mr. Byers willfully or intentionally failed to comply with Acme’s request for a drug test.  Indeed, there was no evidence that Mr. Byers was under the influence of drugs or alcohol at the time of the accident, and no evidence that his actions caused the injury.  Moreover, the Court stated that Mr. Byers did provide a urine sample for testing when requested, but Acme did not even try to test it.  The fact that the sample was insufficient did not excuse the company from attempting to perform the test and did not support a finding that Mr. Byers willfully or intentionally failed to comply with the requirements of Acme’s post-accident testing policy.

Consequently, the Court of Appeals reversed the earlier decision and held that Byers was entitled to workers’ compensation benefits.

DOT To Add Synthetic Opioids To Its Drug Testing Panel

Today the U.S. Department of Transportation published a notice of proposed rulemaking in the Federal Register in which it proposes to amend its drug testing program regulation to add four synthetic opioids (hydrocodone, hydromorphone, oxymorphone and oxycodone) to its drug testing panel. DOT also proposes to add methylenedioxyamphetamine (MDA) as an initial test analyte, and remove methylenedioxyethylamphetamine, (MDEA) as a confirmatory test analyte.

DOT explained that it will maintain the current five-panel test, but will change the name of the opiates category to “opioids” and will include the four new synthetic opioid drugs.

DOT also proposes to:

  • add a new provision indicating that only urine specimens are authorized to be used for drug testing under 49 CFR Part 40;
  • revise an existing provision to describe the procedure for discarding an original urine specimen under certain circumstances;
  • adding three new “fatal flaws” to the existing list of four “fatal flaws” currently found in Part 40;
  • remove Part 40 provisions requiring blind specimen testing;
  • add emphasis to an existing Part 40 provision prohibiting DNA testing of urine specimens;
  • add clarification of the term “prescription” during MRO review;
  • remove, modify and add some definitions to clarify the program and make it consistent with the DHHS Mandatory Guidelines, among other things.

The proposed revision of the drug testing panel is intended to harmonize with the revised Mandatory Guidelines established by the U.S. Department of Health and Human Services for federal drug testing programs for urine testing, issued on January 23, 2017.  DHHS has set an effective date of October 1, 2017 for compliance with its final revision.

DOT will accept comments to the notice of proposed rulemaking until March 24, 2017. Comments may be submitted by e-mail to http://www.regulations.gov.


Case Alleging That Hair Follicle Drug Testing Has Disparate Impact on African-Americans Allowed To Proceed

A municipal employer that conducted hair follicle drug testing on police officers was not entitled to summary judgment on a Title VII disparate impact claim, because a reasonable jury could conclude that an alternative to hair follicle drug testing would have met the employer’s legitimate needs, according to the United States Court of Appeals for the First Circuit. More specifically, the Court held that a reasonable factfinder could conclude that hair testing plus a follow-up series of random urine tests for those officers who tested positive on the hair test would have been as accurate as the hair test alone. Jones v. City of Boston, Case No. 15-2015 (1st Cir. Dec. 28, 2016).

The employer, the City of Boston, conducted hair follicle drug testing on thousands of police officers, cadets and job applicants. Officers who tested positive could admit to drug use, receive an unpaid suspension, undergo rehabilitation, and submit to random urinalysis for a period of three years.  A positive test result otherwise resulted in termination of employment.  The results were negative for over 99% of Caucasian employees tested and over 98% of African American employees tested.

A group of African American police officers claimed that hair follicle drug testing had a disparate impact. They argued that hair testing was not 100% accurate because it could not always distinguish between ingestion of drugs and contamination of the hair by environmental exposure to drugs.  The officers’ experts testified that this could cause disparate impact because black hair, especially if damaged by some cosmetic treatments more commonly used by black individuals, is more likely to absorb and retain contaminants to which the hair might be exposed.

Initially, the United States District Court for the District of Massachusetts granted summary judgment in favor of the City, concluding the one percent difference between pass rates was too small to be of practical significance. In 2014, the First Circuit vacated summary judgment for the City, concluding the employees had established that hair follicle drug testing caused a cognizable disparate impact on African American employees.  The Court remanded the case to the district court to consider: (1) whether the drug testing program was job-related and consistent with business necessity, and, if so, (2) whether the City refused to adopt an alternative that would have met the City’s legitimate needs while having less of a disparate impact.  On remand, the District Court concluded the City met both elements, and again granted summary judgment.

On appeal, the First Circuit affirmed the portion of the lower court’s ruling that held the drug testing program was job-related and consistent with business necessity. It was undisputed that abstaining from drugs was an important aspect of a police officer’s position.  Although a reasonable jury could find the test to be less than 100% reliable, the Court reasoned the City had established hair follicle drug testing was consistent with business necessity based on the “undisputed high degree of accuracy” of the testing.

However, the Court vacated the part of the lower court’s ruling that held there was no compelling evidence that the City refused to adopt an alternative equally valid procedure with a less disparate impact. The officers argued the City could have administered random urinalysis testing for a period of 90 days (the same detection period as hair follicle testing) for those officers who failed the hair follicle test.  The Court held that a reasonable jury could have found this alternative to be reasonable, especially since the City uses urinalysis drug testing in other situations (suggesting that the City agrees urinalysis is an acceptably reliable method of drug testing on a targeted, rather than mass, basis).  In addition, the Court held that a jury also could find that the “hair testing plus urinalysis” alternative would have generated less of a disparate impact, and that there were issues of fact as to whether the City refused to adopt the alternative proposed by the officers.  The Court therefore remanded the case for resolution of these questions by a jury.

FMCSA Finalizes Rule On National Drug and Alcohol Testing Clearinghouse

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration announced a final rule on December 2, 2016 establishing a national drug and alcohol clearinghouse database for commercial motor vehicle drivers. This new database will contain information pertaining to violations of the DOT’s drug and alcohol testing regulations for holders of commercial driver’s licenses.  Although the rule takes effect on January 4, 2017, the implementation date for FMCSA-regulated employers is January 6, 2020.

The Clearinghouse rule requires FMCSA-regulated employers, Medical Review Officers, Substance Abuse Professionals, consortia/third party administrators, and other service agents to report to the Clearinghouse information related to violations of DOT’s drug and alcohol regulations by current and prospective employees.

The Clearinghouse will provide FMCSA and employers the necessary tools to identify drivers who are prohibited from operating a commercial motor vehicle based on violations of DOT drug and alcohol regulations and ensure that such drivers receive the required evaluation and treatment before operating a commercial motor vehicle on public roads. Specifically, information maintained in the Clearinghouse will enable employers to identify drivers who commit a drug or alcohol program violation while working for one employer, but who fail to subsequently inform another employer (as required by current regulations). Records of drug and alcohol program violations will remain in the Clearinghouse for five years, or until the driver has completed the return-to-duty process, whichever is later.

Among other things, the Clearinghouse will require FMCSA-regulated employers to do the following:

  • Employers will be required to query the Clearinghouse for current and prospective employees’ DOT drug and alcohol violations before permitting those employees to operate a commercial motor vehicle on public roads;
  • Employers will be required to annually query the Clearinghouse for each driver they currently employ;
  • Employers will be required to amend their DOT drug and alcohol testing policies to state that certain DOT drug and alcohol violations must be collected and reported to the Clearinghouse;
  • Employers will be required to report certain DOT drug and alcohol program violations to the Clearinghouse within three business days of receipt of the information, including:
    • A verified positive, adulterated or substituted drug test result;
    • An alcohol confirmation test result with an alcohol concentration of 0.04 or greater;
    • A refusal to test;
    • An employer’s report of actual knowledge of the following:
      • On duty alcohol use;
      • Pre-duty alcohol use;
      • Alcohol use following an accident; and
      • Controlled substance use.
    • A substance abuse professional’s report of the successful completion of the return-to-duty process;
    • A negative return-to-duty test; and
    • An employer’s report of completion of follow-up testing.

FMCSA-regulated employers will be required to register with the Clearinghouse before accessing or reporting information in the Clearinghouse.

New York State Announces Expanded App To Locate Substance Abuse Treatment Programs

Governor Andrew M. Cuomo today announced the launch of a newly upgraded web-based search tool to help connect New York State residents struggling with addiction to treatment. The OASAS Treatment Availability Dashboard application allows New Yorkers to access any service in the New York State Office of Alcoholism and Substance Abuse Services continuum of care, including crisis, residential, inpatient, and now — outpatient and opioid treatment programs. By using the online and mobile-friendly platform, any New Yorker, including treatment providers, care coordinators, and health insurance professionals, can easily find a treatment bed or other available services, anywhere in the state and in real time.

Through the newly expanded application available at FindAddictionTreatment.ny.gov, visitors can find up-to-date information on available treatment beds, outpatient services and opioid treatment programs anywhere in the state, 24 hours a day, seven days a week. The application’s search feature includes proximity searches that return reports on available treatment within three, five, 10, 25 and 50 miles of the searcher’s location. Queries are simple and customizable allowing for searches by location, gender of the patient, age, city, county or zip code as specified by the user.  Those searching on the system are also given the telephone number of every program that is returned by a search. Patients are encouraged to call ahead to confirm the availability of a treatment slot. Mobile users can simply click on the treatment provider’s phone number to call the provider.

Additional resources are available by calling the state’s toll-free, 24-hour, 7-day-a-week HOPEline at 1-877-8-HOPENY (1-877-846-7369) or by texting HOPENY (Short Code 467369).