Court Upholds Jury Verdict that Directly-Observed Urine Collections Did Not Constitute Constructive Discharge

A Washington appellate court upheld a jury’s verdict that an employer’s drug testing protocol requiring direct observation of urine collections did not invade an employee’s privacy and did not constitute a constructive discharge.  Ritchey v. Sound Recovery Centers, LLC, No. 53303-1-II (Wash. Ct. App. Oct. 20, 2020).

The employee, a licensed chemical dependency counselor, refused to submit to her employer’s new drug testing protocol that required employees to choose between two options: observed testing and unobserved testing. The first option (Option A) provided for “direct observation of the collection by an independent health professional of the same gender.” The second option (Option B) provided for “provision of a sample, in private, after visual inspection by an independent healthcare professional of the same gender. Disposable, sanitary gowns are provided by the center.”

After the employee refused, the employer asked her to leave the premises until she agreed to submit to testing. The employee never returned. The employer continued to pay the employee’s benefits for several weeks, but ultimately stopped after determining the employee was not going to return.

The employee then filed a lawsuit, alleging the employer failed to accommodate her Post-Traumatic Stress Disorder (PTSD) in violation of the Washington Law Against Discrimination, terminated her employment in violation of Washington public policy and wrongfully withheld her wages. The employee did not prevail on her failure to accommodate claim because she did not present sufficient medical evidence to support her argument that her PTSD required accommodation with respect to the drug testing protocols.

The employee also claimed that she was constructively discharged.  Specifically, she argued that the employer’s new drug testing protocol made her work conditions intolerable because she was required either to allow another person to view her genital area during urination (Option A) or submit to a strip search (Option B). She claimed that both options constituted an intolerable invasion of privacy and were objectionable to a reasonable person.

While the Court remarked that the employer’s drug testing procedures were “intrusive” and “did invade the privacy of [its] employees to some extent,” it concluded the jury was in the best position to determine whether the testing procedures “made working conditions intolerable” and would have forced a reasonable person in the employee’s position to resign.  The employer presented evidence that 195 out of 197 employees completed the drug testing process without complaint.  The jury did not find that there was a constructive discharge and the Court upheld that finding.

Although the employer prevailed in this case, employers should remain mindful of employee privacy rights and discrimination laws when creating drug testing programs. Drug testing procedures that could be viewed as invasive are not appropriate for every employer.

Study Finds Surge In Misuse of Fentanyl, Heroin and Nonprescribed Opioids During COVID-19 Pandemic

According to a new Quest Diagnostics Health Trends study published on October 8, 2020, the misuse of fentanyl, heroin and nonprescribed opioids has increased during the COVID-19 pandemic.

The study analyzed more than 872,000 de-identified lab results from all 50 states and the District of Columbia.  The researchers compared drug positivity rates before the pandemic (from January 1, 2019 to March 14, 2020) with positivity rates during the first few months of the pandemic (March 15, 2020 to May 16, 2020).  Compared to the period before the pandemic, the drug positivity rates increased by 35% for nonprescribed fentanyl and by 44% for heroin.  Nonprescribed opioids increased by 10%.  Moreover, the study identified a significant increase in the positivity rate of combining other drugs with nonprescribed fentanyl during the pandemic.  Specifically, positives for nonprescribed fentanyl increased among samples that were also positive for amphetamines (89%), benzodiazepines (48%), cocaine (34%), and opiates (39%).

Additionally, during the early months of the pandemic, the rate of drug testing declined while the rate of overall misuse held steady.  Quest Diagnostics reported a drop in the rate of orders for clinical lab tests by about 70% weekly.  Conversely, the rate of misuse remained about the same – 49.4% at the height of the pandemic versus 49.9% prior to the pandemic.

COVID-19 has created an environment rife with stressors, i.e., financial insecurity, isolation, depression, and decreased access to health care, impacting those most at-risk for substance abuse disorders.  The foregoing data calls attention to the ongoing opioid epidemic which remains persistent during these unprecedented times.

Suspension of Employee Based on Marijuana Odor and Positive Test Result Did Not Violate CBA

A strong odor of marijuana was sufficient to constitute reasonable suspicion to test, and a positive drug test result constituted just cause for a ten-day suspension, an arbitrator ruled in denying an employee’s grievance.  ZF Active and Passive Safety and UAW, Local 1181, 20-2 ARB ¶ 7646 (Mar. 17, 2020).

The union and the employer, a manufacturing plant, were parties to a collective bargaining agreement (“CBA”) that permitted the employer to order a drug or alcohol test if the supervisor had reasonable suspicion to believe the employee may be under the influence of drugs or alcohol.  The CBA also provided for a 10-day suspension on the basis of usage.

Here, the employee brought work-related concerns to the attention of management and then went on a scheduled break.  After the employee returned from his break, the employee’s supervisors went to his work area to address his concerns.  The supervisors observed a strong smell of marijuana and ordered that he submit to a drug test in accordance with the CBA. When informed he would be sent out for drug testing, the employee admitted to Human Resources that he would test positive.  Predictably, the employee tested positive and thus, the employer imposed a 10-day suspension.

In challenging the suspension, the union argued that a combination of smelling marijuana and the positive test result were insufficient to justify the suspension because the CBA — in using the term “usage” — required evidence of impairment.  The arbitrator disagreed and determined “usage” was proven by the positive test results, i.e., a positive drug test can be equated with being under the influence regardless of the status of observational evidence.  Under the parties’ CBA, the employer had just cause to issue the 10-day suspension from a combination of smelling marijuana and the positive test result.  Accordingly, the arbitrator denied the employee’s grievance.

Federal Court Holds Pennsylvania Medical Marijuana Act Provides Private Right of Action

A Pennsylvania federal court refused to dismiss an employee’s claim for violation of the Pennsylvania Medical Marijuana Act (MMA), reasoning that the Pennsylvania Supreme Court is likely to recognize a private cause of action under the MMA.  Hudnell v. Jefferson University Hospitals, Inc., Civil Action No. 20-01621 (E.D. Pa. Sept. 25, 2020). The court’s analysis of the MMA claim tracked a Pennsylvania state court decision, Palmiter v. Commonwealth Health Sys., Inc., which we blogged about here.

The employee, a Security Analyst, was required to submit to a return-to-duty drug test after being on leave for more than 90 days due to a surgery. The employee’s medical marijuana card expired during her leave, and she informed the testing personnel that she was awaiting recertification. Unsurprisingly, the employee tested positive for marijuana. Although the employee’s medical marijuana card was renewed shortly after her drug test, the employer terminated her employment, reasoning that the employee’s medical marijuana card was expired at the time of her failed drug test.

The employee continued to challenge the employer’s decision. She argued the testing personnel should have accommodated her to ensure that her positive drug test would not impact her employment due to the “imminent recertification.” The employee’s doctor also submitted a letter to the employer stating his belief that the positive test was based on lawful use of medical marijuana. The employer declined to overturn the termination decision.

The employee then filed administrative charges alleging failure to accommodate a disability and race discrimination related to the termination decision. After the U.S. Equal Employment Opportunity Commission dismissed the charges, but before the Pennsylvania Human Rights Commission or Philadelphia Commission on Human Relations took any action, the employee filed a lawsuit alleging claims under Title VII of the Civil Rights Act of 1964, the Pennsylvania Human Relations Act, the Philadelphia Fair Practices Ordinance, the MMA (35 P.S. § 10231.2103(b)(1)), 42 U.S.C. § 1981, and Pennsylvania public policy. The employer responded with a motion to dismiss the state law claims.

The court first dismissed the state and municipal discrimination claims without prejudice for failure to exhaust administrative remedies. The court then moved to the MMA claim. The MMA provides:

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 marijuana.

The employer urged the court to dismiss the MMA claim arguing the MMA does not provide a private cause of action. The employer alternatively argued the MMA did not apply to the employee because she did not hold a valid medical marijuana card at the time of her termination.

The court’s analysis tracked the Palmiter decision, applying the Pennsylvania Supreme Court’s three-part test for determining whether a statute implies a private cause of action. Specifically: (1) whether the plaintiff is one of the class for whose “especial” benefit the statute was enacted; (2) whether there is any indication of legislative intent, explicit or implicit, to create or deny such a remedy; and (3) whether it is consistent with the underlying purposes of the legislative scheme to imply such a cause of action.

Focusing first on the “central inquiry” of whether the text and context of the statute suggest legislative intent to provide a private cause of action, the court concluded that the employment discrimination provision of the MMA would cause the mandate to “ring hollow” without a private right of action, because the statute lacks an enforcement mechanism. The court concluded the first factor was satisfied, noting the statute was created “for the special benefit of employees with medical marijuana cards” and conveyed clear intent to “protect employees” from discrimination. Finally, the court found that a private remedy is consistent with the purpose and spirit of the MMA, which, among other things, seeks to provide medical marijuana patients with access to the benefits of medical marijuana “without fear of adverse employment actions.”

Based on the employee’s allegations that she legally purchased and used marijuana, disclosed her status as a cardholder, failed a drug test, and was fired the same day she recertified her medical marijuana card, the court concluded the employee stated a viable claim under the MMA.

This decision further signals the risk of liability for employers under the MMA. It is also one to watch going forward given the employee’s arguments that the employer was required to accommodate her due to her imminent recertification and that she was entitled to protection under the law notwithstanding the lapse of her medical marijuana card at the time of the positive drug test.

DOT Extends Period of Enforcement Discretion For SAPs and Service Agents

The U.S. Department of Transportation’s (“DOT”) Office of Drug and Alcohol Policy Compliance (“ODAPC”) has again extended its April 4, 2020 Statement of Enforcement Discretion for Substance Abuse Professionals and Service Agents, effective September 22, 2020. The Statement of Enforcement Discretion previously was extended in June and will now remain in place until December 31, 2020.

Under DOT regulations, Substance Abuse Professionals (“SAPs”) are required to conduct a face-to-face assessment and evaluation of an employee who has violated DOT drug and alcohol testing regulations. DOT considers “face-to-face” to mean “in person.” However, due to COVID-19, DOT will permit SAPs to conduct remote assessment and evaluations (subject to certain technological and documentation requirements).

In addition, DOT is providing flexibility to service agents (collectors, Medical Review Officers, Screening Test Technicians/Breath Alcohol Technicians and SAPs) with respect to re-qualification timelines. Due to potential challenges with “finding the necessary resources” to meet re-qualification requirements DOT will consider these categories of service agents qualified to continue providing drug and alcohol testing services in accordance with DOT regulations through December 31, 2020.

Rhode Island Employee May Proceed With Lawsuit Alleging That Termination For Failed Breath Test Violated State Law

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.

Employee’s Request To Revise Drug Policy To Address CBD Use Was Not A Reasonable Accommodation

A federal court in Tennessee dismissed an employee’s lawsuit in which she claimed that her employer should have changed its drug policy to allow CBD use. Hamric v. City of Murfreesboro, Case No. 3:18-cv-01239 (September 10, 2020).

The City of Murfreesboro hired Hamric as a Cultural Arts Program Specialist in August of 2015. Her job duties included teaching children’s art classes and teaching adult artist development courses, among other things. The position subjected Hamric to pre-employment drug testing, for cause testing, random testing and testing for promotions into safety-sensitive positions.

During her employment, Hamric told her supervisor that she used cannabidiol (CBD) to treat anxiety, chronic fatigue syndrome and fibromyalgia, although she did not have a formal medical recommendation to do so.

In 2018, Hamric was recommended for a promotion and was required to pass a drug test. She tested positive for marijuana and blamed the result on her use of CBD.

When Hamric was advised that she likely would be terminated for the failed drug test, she resigned. In her resignation letter, she stated that the city should revise its drug policy to address CBD use. She later filed suit alleging that she was discriminated against on the basis of her disability in violation of the Americans with Disabilities Act as well as the Tennessee Disability Act.

The court dismissed the discriminatory discharge claim because none of the decision-makers were aware that Hamric was disabled. Her failure-to-accommodate claim also was dismissed because she failed to provide evidence that her request to revise the drug policy was necessary to enable her to perform her essential job functions.

U.S. Department of Health and Human Services Proposes Guidelines for Hair Drug Testing

The Substance Abuse and Mental Health Services Administration (SAMHSA), U.S. Department of Health and Human Services (DHHS), proposed scientific and technical guidelines for hair drug testing in federal workplace drug testing programs in the Federal Register on September 10, 2020. The proposed Mandatory Guidelines for Federal Workplace Drug Testing Programs Using Hair (HMG) will allow federal executive branch agencies to collect and test hair specimens for pre-employment drug tests and random drug tests.

Hair has a longer window of drug detection than urine. Hair is easily collected, transported and stored, and is also more difficult to substitute and/or adulterate than urine since collections are performed under direct observation. Hair testing will be limited to pre-employment testing and random testing because hair grows slowly. Drugs generally are not detected in hair for 5 to 7 days after ingestion, so hair testing is not appropriate for reasonable suspicion testing and post-accident testing. DHHS seeks comments as to whether hair testing may be used for return-to-duty or follow-up testing.

A federal agency choosing to test hair specimens must authorize collection and testing of at least one other specimen (e.g., urine or oral fluid) that is authorized under the Mandatory Guidelines For Federal Workplace Drug Testing Programs, and provide procedures whereby the alternate specimen is used in the event that a donor is unable to provide a sufficient amount of hair for faith-based or medical reasons, or due to an in sufficient amount or length of hair.

The collection process proposed by DHHS provides that the hair specimen will be collected by a trained collector under direct observation. The HMG collection procedure requires that a single hair specimen (at least 100 mg of hair) be obtained from the crown of the donor’s head and as close to the scalp as possible. The specimen is divided into two specimens (A and B) that are placed into separate specimen collection containers. DHHS also proposes collecting another specimen simultaneously (urine or oral fluid). This is intended to protect the workers who are tested because hair testing has been subjected to legal challenges in the past. For this reason, DHHS is specifically requesting comments on advances in the science of hair testing that adequately address the limitations of hair testing and elucidate the extent to which hair color, external contamination and other factors will affect hair tests and the interpretation of hair test results. DHHS also is seeking comments as to whether hair tests that are positive for marijuana should be excluded from the requirement to test an alternate authorized specimen.

SAMHSA will accept comments for the next 60 days electronically at, or by regular mail or overnight mail to SAMHSA, Center for Substance Abuse Prevention, Division of Workplace Programs, 5600 Fishers Lane, Room 16N02, Rockville, MD 20857.

Directly-Observed Urine Collections Do Not Constitute Invasion of Privacy Where Employees Consented to Drug Testing

The Supreme Court of Ohio held that an at-will employee has no cause of action for common law invasion of privacy after the employer required the employee to submit to a directly-observed urine collection drug test.  Lunsford v. Sterilite of Ohio, LLC, slip op. No. 2020-Ohio-4193 (August 26, 2020).

Sterilite is a private employer with a substance abuse policy that requires reasonable suspicion testing, post-accident testing and random testing.  The policy requires urine testing for drugs but is silent as to how the specimens will be collected.  According to the four plaintiffs (two current employees and two former employees), Sterilite began using the direct observation method in October 2016.  Under that method, a same-sex monitor was required to accompany the employee to the restroom to visually observe the employee produce the urine specimen.  Three of the plaintiffs were subjected to random testing while the fourth was subjected to a reasonable suspicion drug test.  All four signed a consent form which did not mention directly-observed collection of the urine specimens.  When they reported for testing, the employees were required to submit to directly-observed urine collections.  All four did so without objection.

The four employees asserted that the directly-observed urine collections violated their privacy because the direct observation method is “highly offensive to a person of ordinary sensibilities.”  Among other things, they argued that by way of comparison, the U.S. Department of Transportation requires directly-observed urine collections only in very specific circumstances, such as when an employee is suspected of tampering with the specimen.

The lower court dismissed the employees’ claims but an appellate court reversed, holding that the employees had a “reasonable expectation of privacy with regard to the exposure of their genitals.”  Sterilite and its drug testing vendor appealed.

The Supreme Court of Ohio held that the facts as alleged by the employees could not sustain a common law invasion of privacy claim, primarily because the employees consented to the drug testing.  Moreover, when the employees reported for testing and were told that the urine collections would be directly observed, they did not object.  In effect, the employees consented a second time when they did not object to the direct observation.  The employees argued that they did not consent because the alternative (if they had not agreed to direct observation) would have been termination.  The Court rejected this argument because the employees were employed at-will.

In a lengthy dissenting opinion, three justices stated that employees have a legitimate expectation of privacy when urinating and direct observation by a stranger is highly intrusive.  Whether Sterilite had a legitimate reason to use the direct observation method was an issue of fact that should not have been resolved through a motion to dismiss.

Quest Diagnostics Study Finds 16-Year High in Positive Workplace Drug Test Results for 2019

According to a new Quest Diagnostics study, employers saw the highest rate of positive workforce drug test results since 2003. As expected, marijuana was the most detected drug, including in states where marijuana remains illegal. The study reported a surge in positive results in the Midwest for cocaine, methamphetamine and marijuana. However, the report found a decline in positive opioid tests for 2019.

The Quest Diagnostics report provided encouraging results on the types of testing triggering positive results. As in prior years, for-cause testing produced the highest percentage of positive results, followed by follow-up and return-to-duty testing. The report also highlighted the industries producing the most positive results – the Retail Trade Industry had the overall highest positive rate and the Other Services category (grantmaking, advocacy, and providing personal services) also had a high rate. The Accommodation and Food Service category had the highest positive rate for marijuana.

While the opioid trend sounds promising, there is concern about how COVID-19 will influence substance use, including opioid use. As Quest Diagnostics observed, COVID-19 may “prove to be an accelerant” on the trend toward overall higher positivity rates. To that end, other sources have reported concern about opioid use during the COVID-19 pandemic. In July 2020, the National Institute on Drug Abuse presented “Effects of COVID-19 on the Opioid Crisis: Francis Collins with Nora Volkow.” Dr. Volkow expressed concern about a 20% spike in overdose reports. However, the numbers are not yet available.

Dr. Volkow explained that COVID-19 can impact recovery in many aspects, including potential loss of a support system, difficulty accessing treatment programs, and a decline in the number of individuals seeking treatment from the emergency room.

The National Institute of Environmental Health Sciences recently published Opioids and the Workplace: Prevention and Response. The institute reported that “in the last two months, at least 30 states have reported increases in opioid fatalities since the start of the pandemic.” The institute also identified multiple COVID-19 related factors that are likely driving these trends, including social isolation, home isolation (e.g., loss of in-person recovery meetings, anxiety, loss of contacts), work related stress (i.e., loss of income, inadequate safety measures, job loss or reduction in hours, fear of being infected with COVID-19 or infecting family members), and work-related ergonomics related to social distancing or remote work. The report also highlights the potential for different impacts in diverse communities.

Due to the COVID-19 pandemic, some employers have decreased or stopped conducting drug testing. However, as the country begins to re-open it may be a good time to reassess the best strategies to minimize drug use in the workplace. One part of the solution includes supporting employees who may be faced with stressful personal circumstances, including offering resources to deal with stress (such as employee assistance programs). It may also be a good time to review drug testing programs and consider how to make those programs more effective in the world of remote work.