Archives: Drug and Alcohol Testing

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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 … Continue Reading

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 … Continue Reading

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. … Continue Reading

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 … Continue Reading

Massachusetts State Court Rejects Medical Marijuana Suit

In another win for employers with regard to medical marijuana use by employees, a Massachusetts state court rejected a former employee’s legal claims under the state’s medical marijuana law. Barbuto v. Advantage Sales and Marketing, LLC, et al., No. 15-02677 (Mass. Sup. Ct. May 31, 2016). The plaintiff, Christina Barbuto, possessed a valid medical marijuana prescription … Continue Reading

New Survey Shows Positive Workplace Drug Test Results Are On The Rise, Especially For Heroin, Marijuana and Amphetamines

According to a new study published by Quest Diagnostics today, positive workplace drug test results have been increasing steadily every year since 2011, and made up 4% of all workplace drug test results in 2015.  The Quest Diagnostics Drug Testing Index — an annual survey of workplace drug test results — examined nearly 11 million drug … Continue Reading

Federal Railroad Administration Expands Drug and Alcohol Testing For Maintenance-Of-Way Workers

The U.S. Department of Transportation’s Federal Railroad Administration (“FRA”) recently announced a final rule expanding drug and alcohol testing applicable to maintenance-of-way (“MOW”) employees, effective one year from the date of the rule’s publication (which has yet to be announced). MOW employees work directly on and around railway tracks and crossings, maintaining the tracks, bridges, … Continue Reading

What OSHA’s Electronic Recordkeeping Rule Means For Workplace Post-Accident Drug and Alcohol Testing

Today, OSHA’s final electronic recordkeeping rule, “Improve Tracking of Workplace Injuries and Illnesses,” was published in the Federal Register.  A detailed discussion of the rule can be found here on our OSHA Law Blog.  In the final rule OSHA states that “blanket post-injury drug testing policies deter proper reporting” and concludes that: “the final rule does … Continue Reading

Pennsylvania Employee Proceeds With Invasion of Privacy Claim Arising Out Of Positive Drug Test Result

A federal court in Pennsylvania has allowed an employee to proceed with a wrongful discharge/invasion of privacy claim related to her discharge after a positive drug test result. Wilkinson v. Marvin E. Klinger, Inc., Case No. 4:15-cv-01916, 2016 U.S. Dist. LEXIS 58340 (M.D. PA. May 3, 2016). Plaintiff, a 58-year old school bus driver, was … Continue Reading

Three-Year Statute of Limitations Applies To Violations of Rhode Island Drug Testing Law

The Rhode Island Supreme Court has held that a three-year statute of limitations applies to claims alleging violations of the employer drug testing statute in that state. Goddard v. APG Sec.-RI, LLC, No. 2014-239-Appeal (R.I. Mar. 7, 2016). Rhode Island’s employer drug testing statute provides employees with a right to be free from drug tests … Continue Reading

Minnesota Drug Testing Law Applies Where Minnesota Resident Was Hired to Work in Another State

A federal appeals court in Minnesota has held that the Minnesota drug testing statute applies to an applicant tested in Minnesota, even though the applicant was being hired for a job in another state.  Olson v. Push, Inc., No. 14-3160 (8th Cir. Feb. 22, 2016). Push, Inc., a Wisconsin corporation, hired Olson, a Minnesota resident, … Continue Reading

Lack of Clarity in Employer’s Drug Testing Policy Results in Remand to Trial Court in Unemployment Compensation Case

Although an employee clearly refused a drug test under an employer’s drug and alcohol policy, an appellate court in Alabama remanded the case to the trial court because the employer’s policy did not clearly define the testing methods to be utilized, which was an important component of determining the employee’s eligibility for unemployment benefits. Austal … Continue Reading

Employer’s Reliance On Positive Alcohol Test Was Legitimate and Non-Discriminatory Basis For Termination

An employer’s reliance on a positive alcohol test was held to be a legitimate and non-discriminatory basis for termination, despite the terminated employee’s argument that the test result was inaccurate.  Clark v. Boyd Tunica, Inc., 2016 U.S. Dist. LEXIS 35223 (N.D.  Miss. March 1, 2016). Plaintiff, a line cook at Boyd Tunica, Inc., underwent a … Continue Reading

Top 10 Reasons To Update Workplace Drug and Alcohol Policies in 2016

With the beginning of a new year, it is time to make resolutions and review old, outdated workplace policies. Employers who conduct drug and alcohol testing should consider updating their drug and alcohol policies in 2016, particularly if they have not done so in several years. Here are the top 10 reasons why: Medical Marijuana Is … Continue Reading

FMCSA Slashes Random Drug Testing Percentage Rate For 2016

Motor carriers subject to Federal Motor Carrier Safety Administration drug and alcohol testing requirements in 2016 will have to conduct significantly fewer random drug tests for drivers of commercial motor vehicles (CMVs), including certain trucks and buses, and spend less money on that testing, the U.S. Department of Transportation agency said recently . The FMCSA … Continue Reading

Deaf Employee Who Was Fired For Positive Drug Test Result Could Not Show Disability Discrimination

A deaf employee who tested positive for hydrocodone – but could not produce a prescription for the drug – was not discriminated against due to his disability when his employer fired him.  Phillips v. PPG Industries, Inc., Case No. 5:14-CV-1274 (N.D. Alabama Nov. 24, 2015). Phillips was employed as a “finisher” in a manufacturing facility … Continue Reading

Employee Termination Upheld Due To Failure To Comply with Employer’s Prescription Medication Policy

A federal court in Utah upheld the termination of an employee who did not disclose his use of prescription medication in accordance with his employer’s policy.  Angel v. Lisbon Valley Mining Co., Case No. 2:14-CV-00733 (D. Utah Nov. 23, 2015). Angel was employed as a haul truck driver at Lisbon Valley Mining Co., a copper … Continue Reading

Employee Failed to Show that Positive Drug Test Result For Barbiturates Was Discriminatory

A federal court in Georgia rejected an employee’s claim that his termination after a positive drug test result for barbiturates was discriminatory.  Roman v. Leggett and Platt, Inc., Case No. 3:14-CV-20 (M.D. Ga. Nov. 3, 2015). Roman worked in a safety-sensitive position and was subject to random drug testing.  He tested positive for phenobarbital, which … Continue Reading

Drug and Alcohol Testing May Contribute to Joint Employer Finding By NLRB

We have written previously about the National Labor Relation Board’s 3-2 decision in Browning-Ferris of California, Inc., 362 NLRB No. 186 (August 27, 2015), increasing the likelihood the Board may find two employers to be “joint employers,” and thereby share many collective bargaining responsibilities as well as liability for each other’s violations of the National … Continue Reading

Reasonable Suspicion Alcohol Test of Employee Was Justified After Bar Fight and Diagnosis of Alcoholic Pancreatitis

Reasonable suspicion alcohol testing of a safety-sensitive employee who was injured in a bar fight and who took medical leave for “acute alcoholic pancreatitis” was upheld by a federal court in Indiana, even though the testing did not take place until the employee returned to work after his medical leave ended. Foos v. Taghleef Industries, … Continue Reading

Pre-Offer Drug Tests Were Not Impermissible Medical Examinations Under The ADA, Court Holds

Pre-offer drug tests to determine the use of illegal drugs did not violate the Americans with Disabilities Act’s prohibition on pre-offer medical inquiries, a federal court in Pennsylvania held on September 15, 2015. EEOC v. Grane Healthcare Co. et ano, CV No. 3:10-250 (W.D. Pa. Sept. 15, 2015). The Court previously held, for purposes of … Continue Reading

Minnesota Court of Appeals Provides Helpful Roadmap For Employers Who Conduct Drug Testing

The Minnesota Court of Appeals handed employers a rare win under the Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”), upholding dismissal of a wrongful discharge case after an employee who tested positive for drugs did not comply with the recommended treatment because he wanted to choose a different treatment program. Jones v. … Continue Reading

Employee’s Positive Return-to-Duty Drug Test Result Warranted Termination Despite Employer’s Use of Low Cutoff Concentrations

A Texas oil refinery whose substance abuse policy said an employee “whose drug test is positive, regardless of the reasons for the test,” would be considered in violation of company policy and “will be terminated from employment” meant what it said, a labor arbitrator has concluded. The policy, along with an agreement requiring that an … Continue Reading

National Safety Council Urges Employers to Take Steps to Address Employee Addiction to Opioid Pain Medications

The National Safety Council (“NSC”) has published a report entitled Prescription Pain Medications: A Fatal Cure For Injured Workers, urging employers to educate employees about the dangers of using opioid pain medications – such as addiction and death – while also taking steps to avoid potential liability in workers’ compensation and personal injury litigation. The … Continue Reading
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