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 mine. When he interviewed for the job, he was given a copy of the company’s prescription drug policy which he read and signed. The policy provided that employees taking prescription drugs that may impair their ability to safely perform their jobs must inform human resources of the use of such medications, and obtain a release from the company’s occupational physician authorizing the employee to work and specifying any work restrictions before the employee may return to work. The policy further provided that an employee’s failure to disclose that the employee is taking such prescription medications could result in immediate termination.

Approximately two months after his hire, Angel was selected for random drug testing and tested positive for Oxycodone. He stated that he had been taking that medication for about a month, while continuing to work, and without notifying human resources or presenting a copy of the prescription to human resources or obtaining a work release from the company’s occupational physician – all in violation of the prescription drug policy. Angel was terminated for his failure to comply with the company’s policy. The Company routinely discharged all employees who failed to comply with the prescription drug policy.

Angel asserted disability discrimination claims and a retaliation claim under the Americans with Disabilities Act (“ADA”). While he admitted that he never informed the company that he had a disability, he argued that after the positive drug test result, he advised the company that he took Oxycodone for back pain. The Court held that this statement was not enough to put the company on notice that Angel was disabled, and therefore his purported disability could not have been a determining factor in the decision to terminate his employment.

Angel also argued that the company failed to accommodate him by excusing the positive drug test result. The Court noted again that Angel never put the company on notice that he was disabled and never asked for any accommodation. Moreover, the Court observed that reasonable accommodation is always prospective, not retroactive.

Finally, as to Angel’s retaliation claim, the Court held that Angel did not engage in any “protected activity” and could not establish any causal connection between his termination and any alleged protected activity. All of his claims were dismissed.

This case highlights the importance of having a written policy requiring “safety-sensitive” employees (i.e., those with dangerous job duties) to report the use of prescription medications that may impair the ability to perform their job duties safely – before reporting to work while using such medications and before being selected for drug testing. Such reporting triggers an employer’s obligation to engage in the “interactive dialogue” required by the ADA to determine potential reasonable accommodation.  In this case, it was undisputed that the employee was aware of the policy and that he did not comply with it. If the employer did not have such a clear policy that was distributed to all employees — and that permitted it to take disciplinary action for violating the policy — the result may have been different. Employers must be careful, however, not to apply such policies to non-safety-sensitive employees because there is no business justification to do so.

In the last three years, the Equal Employment Opportunity Commission has filed numerous lawsuits against employers who take adverse actions against applicants and employees who use prescription medications. In accordance with that trend, EEOC filed suit on November 3, 2015 against an employer who purportedly refused to hire a recovering drug addict using methadone, alleging violations of the Americans with Disabilities Act (“ADA”).  EEOC v. Randstad, US, LP, 1:15-cv-03354 (D. MD. Nov. 3, 2015).

EEOC alleges that April Cox is a recovering heroin addict who has been enrolled in a supervised methadone treatment program since at least 2011. She undergoes monthly counseling and urine drug testing and is using methadone as part of her treatment. In January 2015, Cox applied for a job as a production laborer. When she was asked to submit to a pre-employment drug test, Cox disclosed that she was in a methadone treatment program and could provide proof of treatment if necessary. A manager stated that “I’m sure we don’t hire people on methadone, but I will contact my supervisor.” Cox subsequently provided the employer with information from her treatment clinic confirming that she had no restrictions other than that she could not work as a truck driver or airline pilot. Cox never was asked to take the drug test and was not hired, due to her use of methadone.

EEOC alleges ADA violations as follows: (1) Cox is disabled because she is a recovering substance abuser; (2) Cox has a record of a disability; and, (3) Cox was “regarded as” having a disability based on her methadone use. EEOC seeks injunctive relief, back pay, pain and suffering, and punitive damages, among other things.

This is not the first time that the EEOC has commenced litigation on behalf of methadone users. According to the EEOC’s website:

  • In 2012, EEOC settled a lawsuit for $37,500 in which it alleged that an employer refused to hire an applicant who used methadone; and,
  • In 2011, EEOC settled a lawsuit for $85,000 in which it alleged that an employer refused to hire an applicant due to his use of methadone and without conducting an “individualized assessment” to determine whether the applicant could perform the job safely.

Additionally, EEOC has obtained settlements on behalf of individuals using other types of prescription medications:

  • April 2015 — $59,000 settlement of suit alleging that an employer terminated an employee for using prescription medications to treat chronic pain;
  • 2013 — $50,000 settlement of suit alleging that an employer fired an employee for taking bipolar medication;
  • 2013 — $25,000 settlement of suit alleging that an employer asked applicants whether they were taking any medications and to identify those medications;
  • 2012 — $750,000 settlement of suit alleging that an employer drug tested employees for prescription medications and made it a condition of employment that the employees cease taking their prescription medications, without any evidence that the medications adversely affected the employees’ job performances;
  • 2012 –$146,000 settlement of suit alleging that an employer refused to hire applicants and placed employees on leave due to the use of prescribed narcotic medications;
  • 2012 — $80,000 settlement of suit alleging that an employer refused to hire an applicant due to her use of prescribed medication for epilepsy; and,
  • 2010 — $32,500 settlement of suit alleging that an employer refused to hire an applicant due to the applicant’s use of prescription medication.

We have previously blogged about the growing nationwide heroin epidemic.  Employers should be careful not to discriminate against applicants or employees who use prescription drugs such as methadone to treat their heroin addiction (as well as other prescription medications for other medical conditions). Instead, employers should consider on a case-by-case basis whether the applicant or employee can perform the essential functions of the job with or without a reasonable accommodation and without posing a direct threat of harm to themselves or others in the workplace. In addition, employers who drug test for prescription medications must ensure review of positive drug test results by a Medical Review Officer and take steps to ensure that they do not take adverse employment actions based on incorrect or stereotyped assumptions about certain types of drugs.

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 is a barbiturate.  Roman claimed that the positive test result was a false positive, and stated that he used Dilantin, an anticonvulsant which is used to treat epilepsy, as well as methotrexate.  His employer did not know that he had epilepsy prior to the drug test.  The certifying scientists at the employer’s drug testing company stated that Dilantin would not cause a positive test result for phenobarbital.  Roman’s employment therefore was terminated.

Roman asserted that he was discharged due to his disability, given that he was terminated shortly after the employer learned that he had epilepsy.  However, the court noted that the employer had a legitimate, non-discriminatory reason for the discharge – the positive drug test result – and there was no evidence that the employer retained other employees with unexcused positive test results, or that the employer retained other employees after the drug testing company stated that the prescription medication would not cause a false positive.

Roman further argued that the employer’s drug policy did not mandate termination for a positive drug test result.  Although the policy did not say that employees who test positive must be terminated, it did say that violators are “subject to immediate and severe disciplinary action, up to and including termination of employment for a first offense.”  Roman presented no evidence that the policy was applied to him in a discriminatory manner.

The Court also rejected Roman’s arguments that the employer’s drug testing policy was unreasonable, finding that:  Roman had been classified as a safety-sensitive employee before the employer knew that he had epilepsy; it was permissible for the employer to test for barbiturates; and, the Court would not second-guess the cut-off concentrations used by the employer to establish a positive test result.

This case highlights the importance of using a Medical Review Officer to review positive drug test results.  The employer relied on the medical expertise of the certifying scientists at its drug testing company to base its employment decision on the fact that the prescription medication being used by the employee could not have caused the positive drug test result.  Without a lawful prescription for a medication that could have caused a positive test result, the employee could not show that he had been discharged due to his purported disability.

 

During a visit to the state of West Virginia on October 21, 2015, President Obama addressed the country’s growing prescription drug abuse and heroin epidemic by announcing several efforts to address these issues.

The President’s actions focus on the increase in heroin-related overdoses in recent years – which nearly doubled between 2011 and 2013. According to the Administration, more Americans now die from drug overdoses than they do in motor vehicle accidents, and a majority of these deaths involve prescription medications. In 2012 alone, health care providers wrote 259 million prescriptions for opioid pain medications (which include hydrocodone, oxycodone, morphine and methadone among others). Heroin is a part of the same class of drugs and the link between prescription drug use and heroin use is clear, with four in five heroin users misusing prescription opioid pain medications.

The President issued a Memorandum to Federal Departments and Agencies which laid out two directives for federal agencies:

  • train agency doctors on the proper prescription of opioids and
  • identify barriers to medication-assisted treatment for opioid use disorders to develop action plans to improve access to treatment.

In addition, the Administration announced state, local and private sector efforts to address the epidemic from a variety of angles.  Specifically, over 40 provider groups (which include physicians, dentists, pharmacies, advanced practice registered nurses, physician assistants, physical therapists and educators) committed to:

  • Have more than 540,000 health care providers complete opioid prescriber training in the next two years;
  • Double the number of physicians certified to prescribe buprenorphine for opioid use disorder treatment, from 30,000 to 60,000 over the next three years;
  • Double the number of providers that prescribe naloxone–a drug that can reverse an opioid overdose;
  • Double the number of health care providers registered with their State Prescription Drug Monitoring Programs in the next two years; and
  • Reach more than 4 million health care providers with awareness messaging on opioid abuse, appropriate prescribing practices and actions providers can take to be a part of the solution in the next two years.

The White House published a fact sheet discussing these efforts in detail.

As we discussed in previous posts, employers should continue to educate their workforces on the risks involved with the use of prescription opioid medications and heroin abuse.  In addition, employers should consider whether a drug-testing program is appropriate for their workplaces in light of the growing epidemic.

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 Labor Relations Act. See “Labor Board Sets New Standard for Determining Joint Employer Status” (August 25, 2015).  While the NLRB in Browning-Ferris said it would continue to examine whether the putative joint employers ‘“share or codetermine those matters governing the essential terms and conditions of employment’” of the employees in question, it also announced it no longer will require that a joint employer not only possess the authority to control employees’ terms and conditions of employment, but also exercise that authority. “Reserved authority” to exercise control, it said, was relevant. Furthermore, the Board said it would no longer require that an employer’s control over employees be exercised “directly and immediately.” “If otherwise sufficient, control exercised indirectly – such as though an intermediary – may establish joint employer status,” it concluded. Thus, a host employer could be found a joint employer of its contractor’s employees because of its exercise of “indirect control.”

Among the circumstances the NLRB in Browning-Ferris said contributed to a joint employer finding were those pertaining to drug and alcohol testing. The contracting firm (Leadpoint) was required by its agreement with Browning-Ferris (BFI), the host employer, to ensure that all employees referred to BFI passed a five-panel urinalysis drug screen or similar test as agreed to in writing with BFI. Leadpoint was not allowed to refer workers who did not pass the test. Furthermore, BFI could request written certification of such test completion. Even after an employee was referred to BFI, Leadpoint was responsible for ensuring the employee remained free from the effects of alcohol and drug use and in condition to perform his job duties for BFI. The drug tests were administered through the Leadpoint HR department.

The Board also relied on events taking place after employees went to work at the BFI facility. It found that discipline of two Leadpoint employees was “prompted by BFI action.” BFI’s operations manager emailed Leadpoint’s CEO that two Leadpoint employees were observed passing a pint of whiskey at the jobsite. As a result, the two employees were removed and sent immediately for drug and alcohol screening. The Leadpoint CEO stated that BFI’s email “request[ed] [the employees’] immediate dismissal.” Following investigation, Leadpoint terminated one employee and reassigned the other. BFI’s agreement with Leadpoint gave BFI the right to remove any employee from its premises.

The Board found the pre-employment drug testing showed “BFI possesses significant control over who Leadpoint can hire to work at its facility,” and that although BFI did not participate in Leadpoint’s day-to-day hiring process, “it co-determines the outcome of that process by imposing specific conditions on Leadpoint’s ability to make hiring decisions.” Similarly, the removal of the two employees suspected of alcohol violations at work showed “BFI possesses the same unqualified right ‘to discontinue the use of any personnel’ that Leadpoint has assigned.” Indeed, in the Board’s view, BFI’s rights under the agreement signified “the outcome was preordained….”

These facts contributed to a joint employer finding by the NLRB. Requirements by host employers that their contractors’ employees successfully pass pre-employment or pre-assigned drug tests are not uncommon. Neither are agreements under which host employers reserve the right to determine who can remain on their premises, including instances where substance abuse policy violations are detected. After Browning-Ferris, employers may want to reconsider whether they prize their ability to control contractors’ employees on their premises more than their freedom from labor law liability.

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, Inc., 2:13-CV-00438 (S.D. Ind. Sept. 22, 2015).

Plaintiff worked as an Extruder Operator, which required him to operate a machine that melts plastic pellets into a flat sheet which is then stretched in an oven. This job was considered dangerous, and required Plaintiff to wear safety glasses, steel-toed shoes, gloves and earplugs while working.

From 2009 to 2012, Plaintiff took several medical leaves of absence to receive treatment for pancreatitis. In April 2013, he requested time off to recover from a facial fracture and deviated septum that occurred during a bar fight. A week after he returned to work, he requested additional time off due to problems with his “stomach or pancreas.” The medical certification returned by his physician indicated that his primary diagnosis was “acute alcoholic pancreatitis.” This was the first time that the employer learned that Plaintiff’s pancreatitis was connected to alcohol consumption. Based on this diagnosis and the fact that Plaintiff recently had been injured in a bar fight, the employer determined to subject Plaintiff to “reasonable suspicion” drug and alcohol tests upon his return to work.

Plaintiff returned to work on June 15, 2013 at 5:30 a.m. Shortly after the pre-shift meeting, he was advised that he was being taken to the hospital for drug and alcohol testing. The first breath alcohol test, administered at 7:36 a.m., showed a blood alcohol level of .081. The second breath alcohol test, administered at 7:53 a.m., showed a blood alcohol level of .078. Plaintiff’s employment was terminated on June 17, 2013.

Plaintiff commenced a lawsuit alleging disability discrimination in violation of the Americans with Disabilities Act and Family and Medical Leave Act retaliation. Among other things, Plaintiff argued that the disclosure of his confidential medical diagnosis for the purpose of drug and alcohol testing and termination was a violation of the ADA. The Court disagreed, finding that the employer was concerned for the safety of Plaintiff and his co-workers, especially in light of the dangerousness of Plaintiff’s job. The Court also rejected Plaintiff’s argument that the alcohol test was an impermissible medical examination under the ADA, because the purpose of the test was not to determine whether he was disabled, but rather, to determine whether he arrived at work impaired by alcohol.

Additionally, the Court rejected Plaintiff’s claim that he was “regarded as” disabled. The fact that the employer was aware of his diagnosis was not enough to establish that the employer regarded Plaintiff to be disabled. Moreover, the employer’s concerns were not with Plaintiff’s medical condition, but with the possibility that he might report for work while under the influence of alcohol.

Plaintiff also challenged the basis of the “reasonable suspicion” for the alcohol test. He argued that no one personally observed him acting in a way that would indicate he was impaired, but rather assumed that he might be impaired. The Court rejected this argument, too, because the employer’s Employee Handbook contained a catch-all provision that permitted it to “evaluate situations on a case-by-case basis where deviations are in the best interest of [Taghleef] and its employees.” Given the evidence that Taghleef was concerned with safety, and because the reason for the test was to ensure that Plaintiff was not working while impaired, the Court held that the alcohol test was not discriminatory.

Plaintiff’s FMLA retaliation claim was dismissed for similar reasons, specifically: there was no causal connection between his FMLA leave and the alcohol test, and, Taghleef introduced evidence that other employees who had not taken FMLA leave were disciplined for drug and alcohol violations.

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 deciding summary judgment motions, that the pre-offer drug tests did, in fact, qualify as impermissible medical examinations that violated the ADA because each urine sample was tested for both medical reasons and for use of illicit drugs.  EEOC v. Grane Healthcare Co. et ano., CV No. 3:10-250 (W.D. Pa. Mar. 6, 2014). (We blogged about that earlier decision here).   After a bench trial, however, the Court awarded judgment to Defendants, holding that the evidence showed that the drugs tests “were proper drug screens” and did not constitute medical examinations under the ADA.

The Court stated that in order for a drug test to be considered a medical examination under the ADA, a claimant must show that (1) the drug test in question was not administered to determine the illegal use of drugs, and (2) that the drug test did not, in fact, return a positive result for the illegal use of drugs. In this case, Defendants presented credible testimony at trial to satisfy the Court that its only intent in performing pre-offer drug testing was to determine whether the applicants were using illicit drugs. A defense witness testified at trial that when an applicant tested positive for a controlled substance, she would cross-check the positive result for controlled substances with the list of medications used by the applicant (provided by the applicant prior to the test). It was only at this point that the Defendants learned whether an applicant was taking a lawfully prescribed medication. The drug test itself did not show whether an applicant used a prescription medication. The Court observed that the review of an applicant’s medication list was intended only to make employment decisions based on illegal drug use, rather than merely a positive test result. The Court held that this procedure is acceptable under the ADA and that under this protocol, the pre-offer drug test was not a medical examination that violated the ADA.

The EEOC offered no evidence to contradict Defendants’ proffered reason for conducting the pre-offer drug tests, namely, to make employment decisions based on illegal drug use. Additionally, as to four applicants who tested positive and were not hired, the EEOC failed to establish that the drug tests were incorrect, or that the applicants had valid prescriptions for lawful medications.

It is possible that the Court could have ruled differently if the applicants had presented valid prescriptions for lawful medications that revealed medical conditions.

With the race for the White House heating up, the “politics of marijuana” is looming as a possibly significant factor.

Twenty-four state ballot initiatives on marijuana legalization in 16 states have been filed already and will be voted on in November 2016, including in the “swing states” of Arizona, Colorado, Florida, Michigan, Missouri, Nevada, and New Mexico.

This is important because marijuana-legalization ballot initiatives are widely acknowledged to “turn out the vote” of single-issue, first-time, and younger voters – all of whom disproportionately vote Democratic. In close races and swing states, they may make the difference. Insiders have reported that these voters have determined the outcome in several contested races and states in the last two election cycles (e.g., in Barack Obama’s defeat of Mitt Romney in Colorado in 2012).

Moreover, the marijuana-legalization issue is increasingly a focus in U.S. Senate and House races and in pro- and anti-marijuana bills. Recently, the House Republican leadership successfully stripped out pro-marijuana-legalization amendments to two pending bills.

Away from Capitol Hill, twenty-four states and Washington, D.C., already allow for “medical”-marijuana use – at least under some circumstances. Four states (Alaska, Colorado, Oregon, and Washington) and the District of Columbia allow adults to smoke marijuana “recreationally.”

However, proponents’ efforts to introduce marijuana into the legal and cultural mainstream have met with opposition in the workplace and the courts. Even as many states allow “medical” or “recreational” use of marijuana to some extent, the courts have upheld employers’ interests in maintaining drug-free workplaces against challenges by job applicants or employees who were not hired or have been terminated because of marijuana-related substance-abuse-prevention policy violations. Employers have prevailed in every court case brought by employees claiming a “medical”-marijuana justification for their positive drug tests after the company’s adverse employment action – including many decisions in California, Colorado, Michigan, Montana, Oregon, and Washington.

This litigation results from a clash between a culture that increasingly accepts marijuana and companies that prohibit illicit drug abuse because of legitimate safety and productivity concerns. The conflict ultimately will be resolved by Congress or the courts (four lawsuits currently are pending to invalidate Colorado’s legalization of marijuana). Meanwhile, the current Administration, through the U.S. Justice Department, has acquiesced in states legalizing marijuana, essentially by refusing to enforce the federal Controlled Substances Act in those states – an unprecedented policy. This policy could change on January 20, 2017, when a new president is inaugurated.

Thus far, most presidential contenders have shied away from the issue. However, former Texas Governor Rick Perry (R) has endorsed decriminalization. Kentucky Senator Rand Paul, a Libertarian, has consistently supported states’ rights to establish their own marijuana policies and supports decriminalizing marijuana possession. Former Secretary of State Hillary Clinton (D) has hinted that she is comfortable letting the states continue to experiment.

Conversely, New Jersey Governor Chris Christie (R) and Texas Senator Ted Cruz (R) have strongly opposed marijuana legalization, and Florida Senator Marco Rubio (R) also is on record as opposing marijuana legalization.

What the Congress does between now and mid-2016 may be critical. Supporters of marijuana legalization are gearing up. The marijuana industry has hired well-positioned lobbying firms. One of their top issues is to fix the rules that bar marijuana businesses from using banks. The well-funded National Cannabis Industry Association (NCIA) is supporting legislation that would change federal law to recognize the rights of local jurisdictions, including Washington, D.C., to create and regulate their own marijuana laws.

Finally, the U.S. Senate Appropriations Committee voted in support of opening banking services to state legal marijuana business. Senate Bill 683, the CARERS Act of 2015, introduced by New Jersey Senator Cory Booker (D), seeks to amend the federal Controlled Substances Act (21 U.S.C. § 801 et seq.) to ensure that CSA would not apply to anyone acting in compliance with state law relating to the production, possession, and distribution of medical marijuana. The proposal transfers marijuana from Schedule I to Schedule II of the CSA and prohibits federal banking officials from discouraging depository institutions from providing financial services to a marijuana-related, state-permitted legal business. A similar amendment was passed by the full House of Representatives in 2014. The House has not yet taken up the issue in 2015. House Republicans, however, supported a budget plan that would prevent legal sales of marijuana in the District until at least 2017.

Estimates indicate that the value of the legalized marijuana industry currently approaches $3 billion nationwide and is growing. Obviously, a lot is at stake.

The resolution of the marijuana-legalization issue, at both the federal and state levels, could play a significant role in determining the outcome of the upcoming presidential election.

Brewing more trouble for workplace drug testing, the National Labor Relations Board has held a New York beer distributor violated the National Labor Relations Act by denying its driver helper, who reported to work with his clothes “reek[ing] of the smell of marijuana” and with “glassy” and “bloodshot” eyes, and was directed to take a drug test immediately despite requesting representation by his union steward, his right to union representation at an “investigatory interview” (the drug test) about his possible substance abuse. The Board also found the employer had unlawfully discharged the employee for refusing to take the test in the absence of his union steward. Manhattan Beer Distributors, LLC, 362 NLRB No. 192 (August 27, 2015).

The employee spoke to his shop steward on the telephone at the time he was told to go for a drug test and the steward replied that he would not accompany the driver helper to the test because it was his day off. However, the Board held the employee was entitled to the “physical presence” of a union representative. Deciding the employee’s statutory rights here were infringed, the Board relied heavily on the Supreme Court’s decision in NLRB v. Weingarten, 420 U.S. 251 (1975), according unionized employees the right to union representation, upon request, during investigative interviews where the employee reasonably apprehends the interview could lead to discipline, and its decision in Ralph’s Grocery Co., 361 NLRB No. 9 (2014), discussed here, that a workplace drug test was an investigatory interview into possible misconduct to which Weingarten applied.  In Ralph’s Grocery, the Board held that “an employee has the right to the assistance of an authorized union representative even if that might cause some delay in the administration of the drug or alcohol test.”

The Board panel majority relied on the comment by one manager to the driver helper that the employee “smelled funny,” and his question whether the driver helper had been “doing anything stupid,” as well as the remark made by another manager, in sending the employee for a test, that they could finish their conversation at the test site, to bolster its contention that an investigatory interview was in progress when the employee made his request for representation. Thus, it reasoned, the driver helper was entitled to Weingarten representation.

The panel majority decided the physical presence of the steward was needed to provide the driver helper with “active assistance” – “at the very least,” it said, “to permit the [union] representative to independently observe [the employee’s] condition and potentially contest the grounds for [the managers’] suspicions.” According to the majority, the steward also could have “advised [the driver helper] regarding the standard testing protocol and ensured that those protocols were followed.” (At least one of the managers had received “reasonable suspicion” training; the decision is silent as to whether the union steward also had received such training. Furthermore, the driver helper had served previously as union steward while working as a forklift operator for the company.)

The Board allowed it was not requiring the employer to postpone drug testing indefinitely, but did insist that the employer allow the employee an unspecified “reasonable period of time to obtain union representation.” Here, it said, the employer did not accord the employee sufficient time to see whether an assistant shop steward who was at work that day “might become available.”

Member Johnson dissented. He protested, “My colleagues today have painted companies seeking to maintain safe workplaces into a corner by unnecessarily foreclosing their ability to take reasonable steps to confirm whether an employee has reported to work under the influence of drugs or alcohol.” In his view, a drug or alcohol test should not have to be delayed because of the absence of a union representative; “employers,” he said, “have a legitimate and substantial interest in immediately testing employees suspected of using drugs or alcohol, particularly employees who hold safety-sensitive positions.” Member Johnson noted, too, that the Board’s decision may give rise to disputes under workplace substance abuse policies, where testing is thwarted by a union’s delay in providing representation and an employer seeks to rely on reasonable suspicion alone as a basis for taking action against an employee. Whether the employer could win an arbitration on this ground was not free from doubt, Member Johnson observed. Furthermore, he worried that union representatives could be incentivized to make themselves unavailable for “investigatory interviews” to frustrate employer drug and alcohol testing policies and so make termination of an abusing employee more difficult.

Employers of represented employees who maintain drug and alcohol testing programs may have to review their policies and procedures in light of this decision and Ralph’s Grocery to promote their effectiveness, while avoiding “Weingarten rights” pitfalls.

It has long been recognized that federal regulations mandating drug testing for certain employees in safety-sensitive industries preempt contrary provisions in Minnesota’s state drug testing law known as “DATWA” (Drug and Alcohol Testing in the Workplace Act). But some Minnesota practitioners have argued for years that employee protections in DATWA should not be preempted if they are not explicitly in conflict with federal law. A recent order from the District of Minnesota has likely put an end to this line of reasoning. MN Airlines, Inc., d/b/a Sun Country Airlines v. Levander, No 15-CV-2454 (PAM/BRT) (D. Minn. Aug. 28, 2015).

The employee was a flight attendant who was required to be drug tested under The Omnibus Transportation Employee Testing Act of 1991 (“OTETA”) and regulations promulgated by the Federal Aviation Administration (“FAA”). The OTETA is a federal law that requires drug and alcohol testing of safety-sensitive transportation employees in the aviation, trucking, railroad, mass transit, pipeline and maritime industries. After testing positive on a random drug test, the employee was terminated. Her attorney, however, contacted her employer, Sun Country Airlines, and threatened a lawsuit under DATWA, which, among other things, prohibits an employer from terminating an employee for a first-time positive without first allowing the employee an opportunity to participate in and complete a drug counseling or rehabilitation program.

Sun Country took the initiative and filed suit first, in federal court, seeking a declaratory judgment that DATWA was completely preempted in this circumstance. Levander’s attorney argued that federal law does not require an employer to terminate an employee in a safety-sensitive position for a positive drug test, and therefore state and federal law could be applied in harmony. The Court disagreed.

The Court discussed the difference between the more narrow type of “conflict preemption” and the broader implications of “field preemption.” Here, it concluded, the FAA has “preempted the field of drug testing of airline personnel” and DATWA was therefore preempted in all aspects. Specifically:

The regulations promulgated under OTETA “preempt[] any State or local law, rule, regulation, order, or standard covering the subject matter” of those regulations, “including, but not limited to, drug testing of aviation personnel performing safety-sensitive functions.” . . . Rarely is the intent of a law so clear: states may not regulate the drug testing of aviation personnel performing safety-sensitive functions. The []DATWA purports to do just that, by precluding airlines from terminating the employment of such personnel for an initial positive drug test. As such, it is preempted.

Although the holding appears limited to preemption by FAA regulations, it seems likely that courts would apply the same reasoning to preemption by other U.S. Department of Transportation regulations promulgated pursuant to OTETA such as those for drivers of commercial motor vehicles, among others. This decision resolves years of speculation that both federal and Minnesota state law might apply in some of these situations.  It is unknown whether the decision will be appealed.