A federal court in Rhode Island allowed a former employee to proceed with her lawsuit alleging that the employer violated state law when it terminated her employment after a positive breath alcohol test. Stafford v. CSL Plasma, Inc., Case No. 1:19-cv-00270 (D.R.I. September 14, 2020).

Stafford worked for CSL Plasma for about a year as a phlebotomist. She was required to have a drug and alcohol test as a condition of continued employment. While awaiting the results of Stafford’s urine drug test, the employer learned that the result of her breathalyzer alcohol test showed a blood alcohol content of .094 which is above the legal driving limit of .080. The employer fired Stafford based on the positive alcohol test. Five days later, the employer received the result of Stafford’s drug test, which was positive for marijuana and benzodiazepines.

Stafford filed a complaint alleging that the employer violated the Rhode Island drug testing law. That law does not permit employers to fire employees the first time that they test positive; rather, the employee must be referred to a substance abuse professional for evaluation and treatment.

The Rhode Island drug testing law allows for testing of “urine, blood or other bodily fluid or tissue” as a condition of continued employment. The employer argued that it was permitted to terminate Stafford’s employment because the breath test was not “urine, blood, or other bodily fluid or tissue.” The court disagreed, holding that Stafford would be permitted to prove that a breathalyzer test falls under “other bodily fluid or tissue.” The court also noted that during these pandemic times, the Center for Disease Control has coined the term “spatter,” which are visible drops of liquid or body fluid that are expelled forcibly into the air by coughing, talking, or sneezing and that remain airborne indefinitely. Stafford presumably could hire an expert to testify that the breath specimen includes vapor and that vapor is a bodily fluid.

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Photo of Kathryn J. Russo Kathryn J. Russo

Kathryn J. Russo is a principal in the Long Island, New York, office of Jackson Lewis P.C. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws, as well as…

Kathryn J. Russo is a principal in the Long Island, New York, office of Jackson Lewis P.C. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws, as well as substance abuse management and marijuana laws’ impact on employers.

Kathryn helps clients navigate workplace problems involving drugs and alcohol. She regularly works with corporate counsel and human resources executives to develop substance abuse policies to comply with federal drug and alcohol testing regulations (including all agencies of the U.S. Department of Transportation), as well as state and local drug and alcohol testing laws and marijuana laws in all 50 states. In addition, she defends employers in litigation where drug and alcohol test results are at issue, and frequently conducts “reasonable suspicion” training for employers in connection with their substance abuse policies. Kathryn also advises employers on leave and disability management issues arising when employees seek leave or other accommodations related to substance abuse rehabilitation.