Archives: Drug and Alcohol Testing

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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

Positive Workplace Drug Test Results On The Rise For Second Straight Year, Study Finds

For the second year in a row, the percentage of American workers testing positive for illegal drugs has increased, according to a recent study conducted by Quest Diagnostics. Quest Diagnostics’ Drug Testing Index (“DTI”) – an annual analysis of workplace drug testing trends – analyzed the results of over 7.7 million urine, saliva and hair … Continue Reading

Pro-Union Worker Fired For Refusing Drug Test, Not For Anti-Union Reasons, NLRB ALJ Finds

In a strongly worded opinion, a National Labor Relations Board Administrative Law Judge sustained an employee’s discharge for refusing to drug test against an allegation of unlawful discrimination because the employee had engaged in union activity. Ozburn-Hessey Logistics, LLC, JD (ATL) 08-15 (NLRB ALJ April 28, 2015). The Judge repeatedly refused to credit the employee’s … Continue Reading

DHHS Proposes Rules Permitting Oral Fluid Drug Testing and Synthetic Opiate Testing

The U.S. Department of Health and Human Services (“DHHS”) proposed new guidelines in the Federal Register on May 15, 2015 that would revise the Mandatory Guidelines for Federal Workplace Drug Testing Programs in two significant ways: (1) to permit the testing of oral fluid specimens for drugs; and (2) to include drug testing for certain … Continue Reading

Florida Governor Settles Litigation Over Drug Testing of State Workers

Litigation that began over a 2011 Executive Order (11-58) by Florida Governor Rick Scott requiring drug tests for all prospective employees and random tests for employees at all state agencies subject to gubernatorial control — about 85,000 (77 percent of all state workers) — appears to be ending. A notice of settlement has been filed … Continue Reading

Anonymous Second-Hand Tip Did Not Establish Reasonable Suspicion for Public Employee Drug Test

A tip regarding employee on-the-job drug use by an unidentified source, relayed second-hand by a news reporter, is insufficient to establish individualized reasonable suspicion (required under the Fourth Amendment) to require a public employee to submit to a drug test, according to a recent decision by the United States District Court for the Eastern District of … Continue Reading

Employee’s Request to Provide Information Excusing Positive Drug Test Could Trigger Obligation to Engage in Interactive Process

An employee’s request to provide medical documentation excusing a positive drug test could trigger an employer’s obligations to engage in the interactive process, according to a recent decision by the United States District Court for the Eastern District of Pennsylvania.  Jodi Hammel v. SOAR Corp., 2015 U.S. Dist. LEXIS 14361 (E.D.Pa. Feb. 6, 2015). In … Continue Reading

Admissions of Drug Use By Employees Are Not The Same As Positive Test Results in Minnesota

Minnesota Vikings running back Adrian Peterson, who recently was booked on felony child abuse charges in Montgomery County, Texas, reportedly admitted that he “smoked a little weed” in violation of the conditions of his bond, which required drug testing. While giving a urine sample last month, he allegedly told an employee of the testing company that … Continue Reading

U.S. Department of Transportation Issues Reminder to Medical Review Officers Concerning Employees’ Use of Prescription Medications

The U.S. Department of Transportation (DOT) issued on September 30, 2014 a reminder to Medical Review Officers (MROs) concerning transportation employees’ use of prescription medications.  Specifically, the reminder addressed the process to be followed when verifying drug test results of employees who use prescription medications, as well as the MRO’s obligation to raise fitness-for-duty concerns … Continue Reading
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