Florida Governor Signs Medical Marijuana Law

Last November, Florida voters overwhelmingly voted to amend the Florida Constitution to permit the use of medical marijuana. The constitutional amendment went into effect on January 3, 2017, and required regulations to be implemented no later than July 3, 2017. On June 9, 2017, the Florida Senate passed a bill relating to medical use of marijuana, and Governor Rick Scott signed it on June 23, 2017, rendering it effective.

“Qualifying Conditions” under the medical marijuana law include cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, post-traumatic stress disorder, amyotrophic lateral sclerosis, Crohn’s disease, Parkinson’s disease, multiple sclerosis, chronic nonmalignant pain, and comparable medical conditions. The law provides that “medical use” does not include possession, use, or administration of marijuana that was not purchased or acquired from a medical marijuana treatment center.  The law also also does not permit smoking of medical marijuana; instead, medical marijuana products can be consumed as edibles, vaping, oils, sprays or tinctures.  Florida and national news outlets have already reported that legal challenges to the law are likely, specifically with respect to the prohibition against smoking marijuana.

Significantly, the law includes several employer-friendly provisions:

  • The term “medical use” does not include use at a qualified patient’s place of employment, except when permitted by his or her employer.
  • The law does not limit the ability of an employer “to establish, continue, or enforce a drug-free workplace program or policy.”
  • Employers are not required to “accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana.”
  • Medical marijuana is not reimbursable under the Florida Workers’ Compensation Law.
  • Most significantly, the law “does not create a cause of action against an employer for wrongful discharge or discrimination.”

Florida employers should review their drug and alcohol policies to determine whether any revisions are needed to comply with the new law.

Casino Employee’s ADA Claims Dismissed Due to Current Drug Use

A federal court in Nevada dismissed a casino employee’s American with Disabilities Act (“ADA”) claims — even though he had been treated for substance abuse in the past — because he admitted to current drug use which is not protected under the ADA. Scott v. Harrah’s LLC, No. 2:17-cv-01066-APG-VCF (D. Nev. May 9, 2017).

Donald A. Scott Jr. (“Scott”) worked at Harrah’s Hotel & Casino (“Harrah’s”) from 2006 to 2015. In 2014, Scott informed Harrah’s that he suffered from drug addiction.  In response to Scott’s admission, Harrah’s adjusted his work schedule so that he could seek treatment.  Scott voluntarily sought treatment and rehabilitation services in 2014 and again in November 2015.  In December 2015, Harrah’s randomly drug tested Scott and suspended him without pay pending the results.  The results came back positive and Scott admitted to using marijuana approximately 2 to 3 weeks before the test.  Consequently, Scott’s employment was terminated.  He filed suit against Harrah’s for disability discrimination, wrongful termination and retaliation under the ADA.

The Court stated that drug addiction that “substantially limits” one or more major life activities of an individual is a recognized disability under the ADA. Individuals who have successfully completed or are participating in a drug rehabilitation program are protected. However, the phrase “individual with a disability” specifically excludes an “individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.” 42 U.S.C. §12210(a).    Furthermore, the phrase “currently engaging” is not limited to the use of drugs on the day of the test.  Indeed, the Court noted that the Ninth Circuit has interpreted the “currently engaging” language to mean “employees who have not refrained from using drugs for a significant period of time.”

Because Scott had admitted to using drugs within a few weeks of the drug test, the Court found that he was actively engaging in prohibited conduct at the time of his termination.  Therefore, Scott was not a qualified individual under the ADA and the Court dismissed his complaint with prejudice.

Employer’s Refusal to Hire Medical Marijuana User Violates State Law, Rhode Island State Court Holds

Employers cannot refuse to hire a medical marijuana cardholder, even if the individual admittedly would not pass the employer’s pre-employment drug test required of all applicants, a Rhode Island state court has held under the state medical marijuana law. Callaghan v. Darlington Fabrics Corp., et al., No. PC-2014-5680 (R.I. Super. Ct., May 23, 2017). The court granted summary judgment to the plaintiff-applicant.

The plaintiff had applied for a paid internship with the employer and disclosed that she had a medical marijuana card and would not pass the employer’s required pre-employment drug test. The employer’s policy prohibited only the use of drugs on company property. It did not state that a positive drug test result would lead to withdrawal of a job offer.  When she was not hired, the plaintiff sued the employer under the Rhode Island medical marijuana law, the Hawkins-Slater Act, as well as the state’s disability discrimination statute, for refusing to hire her.

The Hawkins-Slater Act provides, “No school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.”  The Act, however, also provides, “Nothing in this chapter shall be construed to require … [a]n employer to accommodate the medical use of marijuana in any workplace.”

In a 32-page opinion that opened with a Beatles quote on getting high, the Rhode Island Superior Court granted summary judgment to the plaintiff.  The court held the Act created an implied private right of action in large part because, without such an implied private right, the law’s prohibition on refusing to employ an individual solely because of his or her status as a medical marijuana cardholder would be rendered meaningless.  The court rejected the employer’s argument that the law permitted a distinction between refusing to hire because of cardholder status (admittedly unlawful under the Act’s plain language) and refusing to hire because of an inability to pass a mandatory pre-employment drug screen, urging the court to interpret the Act to prohibit employers from refusing to hire under both scenarios.

Referencing the employer’s own policy language, the court also rejected the argument that employers had no obligation to accommodate medical marijuana use under the Act on the premise that the Act distinguishes between the medical and nonmedical use of marijuana. While the court agreed that employers are not required to tolerate employees who report for work under the influence of marijuana, it held the Act expressly states that an employer may not refuse to employ a person due to his or her status as a medical marijuana cardholder. Therefore, the court ruled the employer violated the Act in refusing to hire the plaintiff even though she admittedly could not pass the pre-employment drug test.

As to the applicant’s disability discrimination claim under state law, the court rejected the employer’s argument that, having no knowledge of the plaintiff’s disability, it could not have discriminated against her. The court ruled that discrimination could be shown “against a class of disabled people — namely, those people with disabilities best treated by medical marijuana.” It also concluded medical marijuana users are not precluded from bringing a state law disability discrimination claim, despite that: (1) the law disclaims protections to those who seek remedies based on his or her illegal drug use; and (2) marijuana remains illegal under federal law.

Further, despite relevant case law from other states and the U.S. Supreme Court, the court also rejected the defendants’ argument that federal law (i.e., the Controlled Substances Act) preempted state law. Unpersuaded by the fact that marijuana remains illegal under federal law at all times and for all purposes, the court held it was not “physically impossible” to comply with both federal and state laws. It stated that Rhode Island’s law governs only marijuana use in the workplace and that “what an employee does on his or her off time does not impose any responsibility on the employer.” The court also emphasized the fact that Congress has passed spending bills in the past few years prohibiting the Department of Justice from using federal funds to prevent states from implementing their own laws with regard to medical marijuana.

The complicated landscape for employers who conduct drug testing for marijuana is further complicated by Callaghan. An employee’s off-duty use of marijuana may cause the employee to test positive on a workplace drug test because marijuana may stay in the fatty tissues of the body for weeks. While Callaghan certainly will be appealed, the ever-swirling debate surrounding marijuana and a growing sense, in some quarters, that marijuana use is acceptable (both recreationally and medically) highlight the need for employers — in Rhode Island and elsewhere — to consider the marijuana laws affecting their workplaces and how they will handle the question before an actual issue arises.

New York’s Highest Court Asked to Decide Whether New York City Human Rights Law Protects Mistaken Perception of Alcoholism

New York’s highest court, the New York Court of Appeals, has been asked to decide the question of whether the New York City Human Rights Law permits a claim of disability discrimination based solely on a perception of untreated alcoholism. Makinen v. City of New York, et. al., Docket Nos. 16-973-cv(L), 16-1080-cv (XAP) (2d Cir., May 22, 2017).

The case concerned two former New York City police officers who were referred by family members for counseling related to alcohol abuse. In fact, the two police officers were not alcoholics.  The police officers sued the City of New York and others for disability discrimination under the New York City Human Rights Law (“NYCHRL”), arguing that the New York City Police Department regarded them as alcoholics, although they were not.  Defendants sought dismissal because the plain text of the law limited protection to recovered or recovering alcoholics.  Since the plaintiffs were neither, the defendants sought judgment in their favor both at summary judgment and post-trial.

The lower court, the Southern District of New York, held that individuals regarded as untreated alcoholics could bring a claim under NYCHRL, despite the law’s language limiting protections only to those alcoholics who had sought treatment. The lower Court reached this conclusion because analogous state and federal disability laws (the New York State Human Rights Law and the Americans with Disabilities Act) permit disability discrimination claims based on alcoholism, whether recovering or not, and specifically permit claims of “erroneously regarding” an individual to be a substance abuser (alcoholic) when he is not.  The Second Circuit struggled to balance the facts that:  (1) unlike state and federal law counterparts, the NYCHRL contains limiting language suggesting untreated alcoholics are not covered by the law; (2) the NYCHRL was created with the broad remedial purpose to provide plaintiffs comparable protections afforded under state and federal law; and, (3) the NYCHRL generally is construed “more liberally” than its state and federal counterparts.  Because the Second Circuit could not “predict with confidence” how the New York Court of Appeals would reconcile these issues, it deferred decision on the appeal and cross-appeal and certified this question to the New York Court of Appeals:  “Do sections 8-102(16)(c) and 8-107(1)(a) of the New York City Administrative Code preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?”

Employers, especially those in New York City, will await the New York Court of Appeals’ determination of this issue. However, employers in all locations should be attuned to the unique legal issues associated with employees struggling with alcohol or drug addiction, regardless of whether the employee is in treatment or not, or whether the addiction is real or perceived.   Employers should review policies and protocols so that they are equipped to deal with addiction (or perceived addiction) before these situations actually arise.

New Federal Railway Administration Requirements For Maintenance-Of-Way Workers Take Effect June 12, 2017

The U.S. Department of Transportation’s Federal Railroad Administration’s (“FRA”) final rule expanding drug and alcohol testing to maintenance-of-way (“MOW”) employees takes effect on June 12, 2017. MOW employees are “employees of a railroad, or of a contractor to a railroad, whose duties include inspection, construction, maintenance or repair of railroad track, bridges, roadway, signal and communication systems, electric traction systems, roadway facilities or roadway maintenance machinery on or near track or with the potential of fouling a track, and flagmen and watchmen/lookouts.” FRA has amended its regulations (set forth at 49 CFR Part 219) to expand the definition of “employees” to include employees, volunteers and probationary employees performing activities for a railroad or a contractor (including subcontractors) to a railroad.  Additionally FRA has adopted the term “regulated service” to encompass both “covered service” and MOW activities.  Performance of a “regulated service” makes an individual a “regulated employee” subject to Part 219, regardless of whether the individual is employed by a railroad or a contractor (including subcontractors) to a railroad.

The new rule subjects MOW employees to a broader spectrum of drug and alcohol testing, including random testing, pre-employment testing, post-accident testing, return-to-duty testing, reasonable cause testing and reasonable suspicion testing.  While expansive testing has long been in place for other railroad workers, such as engineers and dispatchers, MOW employees previously were required to be tested only if they died after an accident.  The regulations contain certain exceptions for small railroads and their contractors.

Only MOW employees hired on or after June 12, 2017 are subject to pre-employment drug testing. (If a MOW employee is subject to both FRA and FMCSA regulations, only one pre-employment drug test is necessary).  Starting on the effective date, current MOW employees are subject to FRA’s initial minimum random drug testing rate of 50% and initial minimum alcohol testing rate of 25% (even though current FRA random test rates for other covered employees are 25% for drugs and 10% for alcohol).  This will require employers to create a separate random testing pool for MOW employees, both to allow those employees to be tested at the appropriate testing rates and to establish a separate database for MIS reporting.

FRA also has created a separate subpart for reasonable cause testing, to distinguish it from reasonable suspicion testing. Reasonable cause testing is triggered by certain types of incidents or rules violations.  It is not mandatory but may be elected by the railroad and if elected, all regulated employees must be notified that such testing will be conducted.  Reasonable suspicion testing, however, is mandatory and must be conducted when the railroad has reasonable suspicion to believe that the regulated employee has violated a drug or alcohol prohibition set forth in the regulations.

Employers subject to FRA drug and alcohol testing regulations must publish a written policy that must be distributed to each regulated employee.  The regulations contain a list of required items to be included in the policy.  Employers of MOW employees should ensure that they have written drug and alcohol testing policies that comply with FRA’s requirements effective June 12, 2017.

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.

LexBlog