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).

Federal Court Upholds NLRB Decision Finding That Employee Had Right To Physical Presence of Union Representative Before Consenting To Drug Test

A federal appeals court upheld November 16, 2016 the decision of the National Labor Relations Board (NLRB) that an employer violated Section 8(a)(1) of the National Labor Relations Act by denying an employee the right to the physical presence of a union representative before consenting to take a drug test, and by discharging him for refusing to take the test without a union representative present.  Manhattan Beer Distributors LLC v. National Labor Relations Board, Nos. 15-2845, 15-3099 (2d Cir. Nov. 16, 2016).

The Court stated that the NLRB’s decision was supported by substantial evidence and that it reasonably construed the NLRA in light of relevant judicial and administrative precedent. The NLRB’s award of reinstatement and back pay also was upheld.

We previously blogged about the facts of this case here.  In short, the employer wanted to send its employee for “reasonable suspicion” drug testing because he “reeked of the smell of marijuana.” The employee requested the presence of his union steward, but it was the union steward’s day off.  The employee spoke with the union steward on the telephone and then stated that he would not consent to the drug test without union representation.  The employer discharged him for refusing to take the drug test.  In Ralph’s Grocery Co., 361 NLRB No. 9 (2014), discussed here, the NLRB held that “an employee has the right to the assistance of an authorized union representative even if that might cause some delay in the administration of the drug or alcohol test.”  The NLRB, and the Second Circuit, followed that precedent here.

When employers have “reasonable suspicion” to drug or alcohol test an employee, timing is critical. The more time that passes, the more likely the employee will test negative.  This case highlights the tension between an employer’s need to enforce its drug testing policy by conducting timely drug and alcohol tests, and the represented employee’s right to the physical presence of a union representative prior to consenting to test (and thereby potentially delaying the testing).  Employers of represented employees should review their policies and procedures to address these issues.

$1.6 Million EEOC Settlement Highlights Dangers of Making Assumptions About Employees’ Use of Medications

The EEOC entered into a Consent Decree on November 15, 2016, settling a case alleging violations of the Americans with Disabilities Act for $1.6 million. The EEOC claimed that the employer took adverse actions against applicants and employees with actual or perceived disabilities on the basis that the employer believed the individuals posed safety threats.  However, according to EEOC, those actions were taken without actually assessing the individual’s ability to perform the required tasks.  One of the plaintiffs, for example, was not hired after the employer learned that she took medication for a traumatic brain injury.  Click here to read the full article.

This settlement highlights the dangers of making assumptions about applicants’ or employees’ use of medications without conducting the “direct threat” analysis required by the Americans With Disabilities Act and comparable state laws.  An individualized assessment must be conducted before an employer can conclude that the applicant’s or employee’s use of medication poses a direct threat of harm in the workplace.

Seven States Pass New Marijuana Laws On Election Day

Election Day 2016 saw voters approve new marijuana laws in seven states. There are now a total of 28 states (plus the District of Columbia) with medical marijuana laws and 8 states (plus the District of Columbia) with recreational marijuana laws. Arizona’s proposed recreational marijuana law did not pass.  Read the full article on Jackson Lewis’ website.

 

 

Employer’s Honest Belief That Employee Violated Drug Testing Policy Defeated ADA Claims

An employer that terminated an employee based on its honest belief the employee violated its drug policy was entitled to summary judgment on the employee’s Americans with Disabilities Act claim, according to a Kentucky federal court. The court also granted summary judgment to the employer on the employee’s failure to accommodate and wrongful discharge claims. Adkins v. Excel Mining, LLC, 7:15-cv-00133-ART-EBA (E.D. Ky. Oct. 4, 2016).

Defendant maintained a zero-tolerance drug policy, which prohibited employees from using prescription drugs without a prescription. The policy had one exception: if the employee disclosed prescription drug use to Defendant, the employee could continue working if the employee’s doctor said it was safe to do so.

Plaintiff failed a random drug test, testing positive for both prescription drugs and alcohol. Defendant allowed Plaintiff to undergo treatment for alcohol dependency.  During his six-day in-patient treatment stay, Plaintiff’s doctors prescribed oxazepam, a prescription drug that treats alcohol-withdrawal symptoms.

Plaintiff subsequently returned to work and provided Defendant with his discharge papers. Plaintiff also named the prescriptions he was prescribed during treatment.  However, neither the discharge papers nor Plaintiff mentioned oxazepam.  Plaintiff took another drug test and tested positive for oxazepam.  Defendant called the drug testing lab, and learned that oxazepam should clear a user’s system within three days.  Defendant concluded that the drug should have cleared his system by the time he failed the drug test.  Defendant terminated Plaintiff’s employment for violating its drug testing policy.

Plaintiff claimed Defendant violated the ADA and the Kentucky Human Rights Act, and that it terminated him in violation of public policy. Plaintiff specifically claimed he was terminated because he is an alcoholic.  The Court hinted that Plaintiff may not be “an individual with a disability” because the ADA excludes current users of illegal drugs.  However, it decided that Plaintiff’s claim failed on other grounds.

The Court first rejected Plaintiff’s argument that the timing alone between his treatment and his termination could carry the day. The Court then focused on the honest belief doctrine.  The Court held Defendant was only required to “make an informed and considered decision based on the facts before it,” even if the belief is ultimately “mistaken, foolish, trivial, or baseless.”  The Court concluded the Defendant’s reliance on the drug testing laboratory’s advice and the discharge papers (which did not list oxazepam) supported its honest belief Plaintiff violated its drug policy.  Thus, summary judgment was appropriate and the case was dismissed.

OSHA Publishes Guidance For Conducting Post-Accident Drug And Alcohol Testing Without Violating The Electronic Recordkeeping Rule’s Retaliation Provision

The Occupational Safety and Health Administration published a memorandum on October 19, 2016 that explains statements made about post-accident drug and alcohol testing in its commentary to the Electronic Recordkeeping Rule, i.e.,Improve Tracking of Workplace Injuries and Illnesses,” which was published in May.  Among other things, the rule prohibits retaliation against employees who report workplace injuries and illnesses.

As we discussed in a previous blog post, “What OSHA’s Electronic Recordkeeping Rule Means for Workplace Post-Accident Drug and Alcohol Testing,” OSHA stated in the commentary to its new rule that: “the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.”  Since the commentary was published in May, there has been much debate about whether any form of post-accident or post-injury drug and alcohol testing is permitted by employers. 

In the October 19, 2016 memorandum, OSHA stated that it will not issue citations for drug testing conducted under federal or state laws, or under state workers’ compensation laws.  This is good news for employers who conduct drug and alcohol testing required by federal law, or in accordance with state laws, including state workers’ compensation premium reduction laws.

Importantly, OSHA stated that “[t]he general principle here is that drug testing may not be used by the employer as a form of discipline against employees who report an injury or illness, but may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances.”  The Electronic Recordkeeping rule does not prohibit employers from drug testing employees “who report work-related injuries or illnesses so long as they have an objectively reasonable basis for testing, and the rule does not apply to drug testing employees for reasons other than injury-reporting.” The rule only prohibits drug testing employees for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so. When evaluating whether an employer had a reasonable basis for drug testing an employee who reported a work-related injury or illness, OSHA’s central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness. If so, it would be objectively reasonable to subject the employee to a drug test. When OSHA evaluates the reasonableness of drug testing a particular employee who has reported a work-related injury or illness, it will consider factors including whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore the result of the drug test could provide insight into why the injury or illness occurred), whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness, and whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due the hazardousness of the work being performed when the injury or illness occurred.

OSHA offered this example: A crane accident injures several employees working nearby but not the operator. The employer does not know the cause of the accident, but there is a reasonable possibility that it could have been caused by operator error or by mistakes made by other employees responsible for ensuring that the crane was in safe working condition. In this scenario, it would be reasonable to require all employees whose conduct could have contributed to the accident to take a drug test, whether or not they reported an injury or illness. Testing would be appropriate in these circumstances because there is a reasonable possibility that the results of drug testing could provide the employer insight on the root causes of the incident. However, if the employer only tested the injured employees but did not test the operator and other employees whose conduct could have contributed to the incident, such disproportionate testing of reporting employees would likely violate the retaliation provision.

Conversely, OSHA stated that drug testing an employee whose injury could not possibly have been caused by drug use would likely violate the retaliation provision of the rule. For example, drug testing an employee for reporting a repetitive strain injury would likely not be objectively reasonable because drug use could not have contributed to the injury.

Finally, OSHA stated that it will only consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available. Therefore, OSHA will only consider this factor for alcohol tests but not drug tests.

Employers should review their drug and alcohol testing policies to ensure that their post-accident drug and alcohol testing provisions comply with all applicable laws as well as OSHA’s new guidance.

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