Archives: Drug and Alcohol Testing

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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

Failure To Report For Random Drug Test Defeats Employee’s ADA Suit

Employees regulated by U.S. Department of Transportation (DOT) drug and alcohol testing regulations are required to report for drug or alcohol tests within a reasonable amount of time as determined by the employer. A failure to show up or significant delay in reporting for testing may be deemed a “refusal to test,” as a municipal … Continue Reading

Workplace Positive Drug Test Rates Are Increasing; Marijuana Use Surging in Colorado and Washington, New Study Shows

A new study published by Quest Diagnostics reported an increase in the workforce drug test positivity rate for the first time in ten years, fueled primarily by marijuana and amphetamines.  The Quest Drug Testing Index (DTI) released on September 11, 2014 also showed a large increase in positive marijuana test results in Colorado and Washington, … Continue Reading

Trouble Ahead For Post-Accident Drug Testing?

Are employers at risk in their ability to conduct lawful post-accident drug and alcohol tests? Maybe. At least that is the answer for the many employers who are subject to the Occupational Safety and Health Administration’s recordkeeping rule (29 CFR Part 1904). OSHA, in a “Supplemental Notice of Proposed Rulemaking” published recently in the Federal … Continue Reading

Drug Test Triggered by Discovery of Drug Paraphernalia Did Not Violate Public Employee’s Fourth Amendment Rights

A “reasonable suspicion” drug test triggered by an employer’s discovery of apparent drug paraphernalia did not violate a public employee’s Fourth Amendment rights to be free from unreasonable searches and seizures, a court in Arkansas has held.  Brotherton v. Hill, No. 4:12-cv-534 (E.D Ark. Sept. 4, 2014). Brotherton worked as a boiler operator at the … Continue Reading

Employer Gets New Trial to Prove Drug Tests Were Not Medical Examinations or Disability-Related Inquiries

A Tennessee auto glass manufacturer will get a new trial to prove that drug tests it administered to its employees – including tests for prescription medications — were not “medical examinations” or “disability-related inquiries” under the Americans with Disabilities Act.  Bates v. Dura Automotive Systems, Inc., No. 11-6088 (6th Cir. August 26, 2014).  In May … Continue Reading

Minnesota Drug Testing Law Does Not Apply to Employees Working Outside Minnesota

A federal court in Minnesota has ruled that Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA), Minn. Stat. Sections 950-957, does not apply to employees who work or are applying to work outside the state of Minnesota.  Olson v. Push, Inc., No. 14-1163 (ADM/JJK) (D. Minn. Aug. 19, 2014).  In Olson, the plaintiff … Continue Reading

NLRB’s Sobering Decision Permits Union Representation Before Employee Drug Test

The National Labor Relations Board has held that a supermarket chain violated the National Labor Relations Act by terminating an employee who refused to submit to a drug test without first consulting a union representative, affirming an April 2013 decision by its Administrative Law Judge.  Ralphs Grocery Co., 361 NLRB No. 9 (July 31, 2014). … Continue Reading

West Virginia Mining Employers Must Report Positive Drug and Alcohol Test Results, And Refusals to Test

West Virginia Governor Earl Ray Tomblin signed into law March 28, 2014 an amendment to the West Virginia Code requiring mandatory employer reporting to the West Virginia Office of Miners’ Health, Safety and Training (“OMHST”) whenever an applicant or employee, working in a safety-sensitive mining position, tests positive on a drug or alcohol test or … Continue Reading

Public Employer Could Not Subject Applicant to Pre-Employment Drug Test, Court Holds

A federal court in Florida has held that the City of Key West’s policy of drug testing all applicants for employment was applied to an applicant in an unconstitutional manner.  Karen Cabanas Voss v. City of Key West, Case No. 13-10106-CV-King (S.D. Fla. May 9, 2014). The City of Key West conducts drug testing of … Continue Reading

Major League Baseball And Its Players Association Reach Agreement On Amended Drug Accord

Major League Baseball and the Major League Baseball Players Association have negotiated changes to its current Joint Drug Treatment and Prevention Program to create the most stringent drug program in baseball history. Our colleague, Gregg Clifton, at the Jackson Lewis Collegiate and Professional Sport Law Blog reports on a Major League Baseball Players Association accord … Continue Reading

FAA Considering Drug Testing Foreign Aircraft Maintenance Workers

The Federal Aviation Administration (“FAA”) announced last week that it is considering expanding its current drug and alcohol testing regulations to require testing of certain foreign repair and maintenance workers performing work for U.S. air carriers. While the FAA has long required random drug and alcohol testing of workers responsible for maintaining and repairing aircrafts … Continue Reading

Pre-Offer Drug Tests Violated Americans with Disabilities Act

Pre-offer drug tests to determine the use of both legal and illegal drugs violated the Americans with Disabilities Act’s prohibition on pre-offer medical inquiries, a federal court in Pennsylvania held on March 6, 2014.  EEOC v. Grane Healthcare Co. and Ebensburg Care Center, LLC, d/b/a Cambria Care Center, CV No. 3:10-250 (W. Dist. Pa. Mar. … Continue Reading

Employee’s Discharge For Refusing Drug Test Did Not Constitute Retaliation

A federal appeals court held on February 14, 2014 that an employer did not retaliate against an employee when it discharged him for refusing to submit to a drug test after he initiated the filing of a workers’ compensation claim.  Phillips v. Continental Tire The Americas, LLC, No. 13-2199 (7th Cir. Feb. 14, 2014). Phillips … Continue Reading

A-Rod: A Tough Road To Hoe In Contesting Arbitrator’s Suspension

Famous third baseman Alex Rodriguez is suing over an arbitration decision suspending him from major league baseball for the entire 2014 season for using performance-enhancing drugs. His chances of overturning the arbitration award are examined by our colleagues Steven S. Goodman, Gregg E. Clifton, and Philip B. Rosen in this article: A-Rod: A Tough Road … Continue Reading

Top Ten Ways Employers Run Afoul of Minnesota’s Drug and Alcohol Testing Statute

Minnesota has a uniquely complicated statute governing drug and alcohol testing in the workplace. Minn. Stat. Section 181.950-957.  The statute can be a surprise for out of state employers with employees in Minnesota, as well as Minnesota-based companies. And non-compliance can be expensive. Employees who are tested in violation of the statutory requirements can potentially seek … Continue Reading

City Employee Properly Alleged Fourth Amendment Violation For Unreasonable Search And Seizure

Considering when a drug test by a public employer may constitute an “unreasonable” search for Fourth Amendment purposes, a U.S. District Court in Florida also has shed light on private sector substance abuse testing that could lack “reasonable suspicion” or “cause.”  There was no factual record on which the court relied.  Hudson v. City of … Continue Reading
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