Louisiana employers now can drug test employees’ hair samples, thanks to a recent amendment to the State’s drug testing statute.

Signed by Governor Bobby Jindal on June 5, 2015, House Bill 379 closes an 18 year-old loophole in Louisiana’s drug testing law, which permitted employers to drug test hair specimens (in addition to blood, saliva and urine), but did not authorize any laboratories to actually process the results of hair testing.   Prior to the recent amendment, employers were required to use only laboratories certified by the Substance Abuse and Mental Health Services Administration (“SAMHSA”) or the College of American Pathologists/Forensic Urine Drug Testing for all employee drug testing.  As neither certification allows for the testing of hair specimens, employers were de facto prohibited from hair testing.  (Click here to read our recent blog on SAMSHA’s solicitation of comments on hair testing for drugs).

House Bill 379 amends the law to allow employers to use laboratories certified for forensic hair drug testing by the College of American Pathologists.  The law went into effect immediately.

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 drug tests taken by employees nationwide during 2014.

The number of employees in the general workforce testing positive for illegal drug use increased in 2014 to 4.7%, up 9.3% from the year prior.  This is the second year in a row that the employee positivity rate has increased.  Prior to 2013, DTI had shown a decade’s-long decline in employees’ use of illegal drugs.  The increase in 2013 was driven largely by a 20% jump in the number of employees testing positive for marijuana use in Colorado and Washington.  Recreational marijuana laws in both states went into effect that year.

As in 2013, the 2014 increase is attributable primarily to an uptick in employees testing positive for marijuana – up 14.3% from the year prior (to 2.4%).  Unlike 2013, however, the increase in marijuana positivity in Colorado (14%) and Washington (16%) is roughly parallel to the nationwide average, surprising some drug testing experts.

While marijuana remains the most commonly detected illegal drug, the number of employees testing positive for cocaine, methamphetamines and heroin also increased, specifically:

  • Cocaine positivity was up 9.1% from 2013 in urine tests, 30.6% in oral fluid tests and 13.0% in hair tests.
  • Positive tests for amphetamines increased by 7.2% over 2013.
  • Methamphetamine positivity increased 21.4% over 2013 in urine tests, and 37.5% in oral fluid tests. The positivity rate for methamphetamines is now at the highest level since 2007.
  • The positivity rate for 6-acetylmorphine, a specific marker for heroin, doubled between 2011 and 2014.

The entire report may be accessed at www.QuestDiagnostics.com/DTI.

The Substance Abuse and Mental Health Services Administration (“SAMHSA”) published a Request For Information on May 29, 2015 that solicits comments about potential hair testing for drugs in an effort to revise and update standards for laboratory drug testing procedures for federal workers. Tasked by the Department of Health and Human Services, SAMHSA is looking to improve standards on the use of the best available technology for ensuring the reliability and accuracy of drug tests in the Mandatory Guidelines For Federal Workplace Drug Testing Programs. SAMHSA seeks information and comments on a variety of issues related to hair specimen drug testing, such as:

Hair Specimen:

  • What are the acceptable body locations from which to collect hair for workplace drug testing? What should be done if head hair is not available for collection?
  • What hair treatments (i.e., shampoo, conditioning, perm, relaxers, coloring, bleaching, straightening, hair transplant) influence drug concentration in hair and to what degree?
  • What are the acceptable reasons for hair testing (i.e., pre-employment, random, reasonable suspicion, post-accident, other (fitness for duty, return to duty, etc.))?

Collection:

  • What training should a collector receive prior to collecting the hair specimen?
  • What is the best protocol to collect the hair specimen?
  • Should the hair collection protocol be standardized, including specific instructions on how close to cut the hair specimen to the skin, how to determine the authenticity of the hair specimen, what cutting instruments to use, how to ensure the cutting instruments are decontaminated, and whether the use of collection kits should be required?
  • What is the minimum amount of hair that should be collected?

 Analytes/Cutoffs:

  • What analytes should be measured in hair by the initial and confirmatory tests?
  • What initial and confirmation cutoffs should be used for the various hair drug testing analytes?

 Testing:

  • What technologies are available to perform initial and confirmatory testing on hair specimens?

Comments must be received by June 29, 2015, and may be submitted electronically at http://www.regulations.gov/#!documentDetail;D=SAMHSA-2015-0003-0003.

This Request For Information follows DHHS’s May 15th notice regarding proposed guidelines for oral fluid testing. These proposed changes could allow the use of oral fluid and hair for testing federal employees and remove the current requirement for urine specimens only. Once final guidelines are issued, it will be up to the Department of Transportation to decide whether to adopt these new guidelines and publish new testing rules for regulated transportation employees.

A Minnesota resident lost his bid to show that state laws and rules under which he lost driving privileges due to several driving-while-impaired (DWI) offenses gave rise to violations of the Americans With Disabilities Act (ADA). The federal court of appeals in St. Louis affirmed a lower court’s dismissal of his complaint for failing to allege he is a qualified individual under the ADA. Scheffler v. Dohman, Commissioner of Public Safety,  __ Fed. App’x __ (8th Cir., No. 13-3785, May 12, 2015).

Scheffler was repeatedly arrested for DWI since 1994. After his third arrest in 1997, his driving privileges were canceled subject to a one-year abstinence-only rehabilitation program. Scheffler successfully completed the program and received a license in 1998, which restricted him from using alcohol. In 1999, however, his license was cancelled, and he was required to complete a three-year alcohol rehabilitation program. Scheffler did so, and in 2002 he received a restricted license. In 2010, Scheffler again was arrested for DWI. He was directed either to complete a six-year rehabilitation program or submit to an Ignition Interlock Program in order to receive a new restricted driver’s license.

Scheffler brought suit, claiming ADA violations and seeking an injunction requiring the State to restore his driving privileges without restriction. The State moved to dismiss. The district court granted the motion, finding Scheffler failed to allege a disability under the ADA.

The court of appeals agreed. Noting that Scheffler did not allege that he met the ADA’s definition of a disabled person due to his alcoholism (he did not claim he was an alcoholic or that his alcoholism causes him to be substantially limited in a major life activity), it related that Scheffler argued instead his multiple DWI convictions created a record of alcoholism under ADA’s second prong of the definition of disability. “However,” the Eighth Circuit said, “as the district court correctly found, ‘[d]riving while intoxicated on multiple occasions does not, in and of itself, establish that [Scheffler] is an alcoholic.’” Additionally, the court observed, there was no allegation that Scheffler ever was diagnosed as an alcoholic, nor did his complaint allege he suffered from a substantial limitation to a major life activity due to alcoholism. Thus, he failed to allege he was disabled under the “record of” prong of the ADA definition.

The court also rejected Scheffler’s argument that he was unlawfully “regarded as” an alcoholic under the ADA’s third prong of the disability definition, merely because the State imposed restrictions on his driving. Again, the fact that Scheffler received several DWI convictions did not mean he is an alcoholic, the Court said. “Nor does the State, in imposing restrictions on drivers who incur multiple DWI offenses, necessarily perceive that person as an alcoholic.” In the absence of any other facts supporting his “regarded as” claim, the Eighth Circuit agreed with the lower court that Scheffler had failed to allege that the State, by its actions, regarded him as having an impairment under the ADA.

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 account of his employer’s attempts to test him.

Renal Dotson, a forklift driver, was involved in an incident in the employer’s warehouse in which the Operations Manager came into contact with a moving forklift driven by Dotson. Dotson was hostile to his supervisor and testimony suggested he was “not behaving in an entirely rational manner,” the Judge found. According to the Operations Manager, Dotson bumped him intentionally with the truck; Dotson claimed the Manager “chest-bumped” the vehicle.

The Human Resources Department ordered a post-accident drug test for Dotson. The employer’s established policy required that after an accident involving equipment such as a forklift, the operator would not be able to resume duty until he passed a drug screening.

Dotson was sent to a laboratory selected for testing. The laboratory followed strict protocols to assure drug test reliability. Dotson was shown into a secure rest room, told he had four minutes to provide a specimen and advised that his failure to do so would result in his failing the test. After three minutes, the laboratory technician rapped on the door of the rest room. She told him to “wrap it up” and come out. Dotson spoke from behind the door, “I can’t go yet.”

At the four minute mark, the technician told Dotson he should come out anyway, that he would be allowed to drink water, and then could try again. Dotson did not emerge. The technician knocked on the door again saying Dotson’s time was up and he had to come out. “I’m jumping up and down to see if I can use the restroom,” Dotson’s replied. The technician said “either way” she could not take the sample, because he had exceeded the time limit. Dotson persisted: “I think I’m doing something.” But the technician again instructed Dotson to come out, drink water, and restart the process. There was no response at first. Then, from behind the door came the reply, “Oops, I dropped my cup.”

Asked once more, Dotson finally exited the restroom with some urine. It was discolored and did not have a temperature; “and it was trashy,” the technician testified, “with a lot debris on the bottom.” The technician rejected the specimen. She told Dotson the next time he went in the restroom there would have to be a male observer with him, which was standard procedure in these cases. The laboratory collection form, which Dotson initialed, indicated “Specimen Out of [Temperature] Range And/Or Signs of Tampering.”

By now, the laboratory was closing and no male staff members were present to administer another test. So, Dotson could not be retested at that time. He left the laboratory. Dotson then went to another drug testing company where he obtained a certificate showing negative results, but neither the employer nor the ALJ found these results an acceptable substitute, as the testing facility was not approved by the employer.

Since Dotson had not passed a drug test, the employer’s policy prohibited him from returning to work. Meanwhile, the Company investigated not only the accident, but also Dotson’s claims that the approved laboratory had treated him poorly (rushed him) and used sloppy procedures (having another person’s specimen present in the restroom). The Company concluded Dotson’s complaints about the laboratory were baseless.

Eight days later, the employer directed Mr. Dotson to go at once to the laboratory for another test. He was sent without notice, after being told to report to work. A video showed Dotson repeatedly refused to go, despite warnings from management that he could be fired for refusing. He was terminated for violating the Company’s Drug Free Workplace Policy by refusing to take a drug test.

Although Dotson had been an active union organizer, the subject of a court injunction proceeding by the NLRB to secure his reinstatement pending completion of Board proceedings, and of another Board ALJ’s unfair labor practice decision against the Company, the judge here found the Company would have suspended and then terminated him regardless of any anti-union motivation. The Company had an established drug testing policy which required the testing on any employee who had an accident with a fork lift truck and which provided for the termination of any employee who refused to test. Dotson was required to be tested, but refused, and therefore was terminated. The ALJ found other employees who had refused to test were fired, as well. This did not show a violation of the NLRA, the judge concluded. The Judge recommended dismissal of these unfair labor practice allegations.

Adherence to a well-designed, consistently enforced substance abuse policy may help an employer defend against NLRB and other discrimination charges, by providing an objective standard by which to take disciplinary action. The employer may show that regardless of any alleged discriminatory intent, the employee would have been terminated for its violation.

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 synthetic opiates – hydrocodone, oxycodone, hydromorphone and oxymorphone.

Oral Fluid Testing. The proposed guidelines will allow employers regulated by the Mandatory Guidelines for Federal Workplace Drug Testing Programs to include oral fluid testing as part of their drug testing programs. The guidelines establish standards and technical requirements for oral fluid collection devices including cut-off concentrations for initial and confirmatory tests, testing methods, review by a Medical Review Officer, and requirements for federal agency actions. Oral fluid cut-off concentrations will be much lower than urine cut-off concentrations because drug analyte concentrations in oral fluid are much lower than urine concentrations. Split specimen testing will be required either by requiring two specimens to be obtained from the donor, either concurrently or serially, using separate collection devices or a single collection device that can be split into two separate specimens.

The benefits of oral fluid testing (instead of urine testing) include a reduction in time of the collection process; an observed collection method leading to reductions in rejected, invalid, substituted and adulterated specimens; and a more effective tool in post-accident testing. In addition, since oral fluid collection does not have the same privacy concerns as urine collection, on-site collections are likely, thereby reducing the time an employee is away from the worksite.

Synthetic Opiate Testing. The proposed guidelines will require drug testing for oxycodone, hydrocodone, hydromorphone and oxymorphone. Oxycodone and hydrocodone – more commonly known as OxyContin and Vicodin — were included because they top the list of narcotic pain relievers causing visits to hospital emergency rooms due to non-medical use, and are among the top ten drugs seized in law enforcement operations. Hydromorphone and oxymorphone were included because they are available commercially as analgesics, are more potent than hydrocodone and oxycodone and are highly addictive.

The proposed guidelines address additional issues including reducing the pH level needed to establish an adulterated urine specimen and training requirements for Medical Review Officers, among other things.

DHHS is accepting comments on the proposed rules until July 14, 2015.  Comments may be submitted online at http://www.regulations.gov.

Workplace-related alcohol and drug abuse continues to plague many American industries, according to a recently published government report.

Heavy alcohol use among full-time workers in the U.S. aged 18 to 64 reached 17.5% in the mining industry and 16.5% in the construction industry, (the highest of any industries), data from 2008 through 2012 showed, according to a report recently issued by the Substance Abuse and Mental Health Services Administration (SAMHSA) of the U.S. Department of Health and Human Services. The April 16, 2015 National Survey on Drug Use and Health also found that the highest rates of past month illicit drug use during the same period — 19.1% — were found in the accommodations and food services industry. These same workers had the highest rates of past year substance use disorder (16.9%).

According to SAMHSA, heavy alcohol use is defined as drinking five or more drinks on the same occasions (i.e., at the same time or within a couple of hours of each other) or five or more days in the past 30 days. Illicit drugs include marijuana/hashish, cocaine (including crack), inhalants, hallucinogens, heroin, or prescription-type drugs used non-medically.

Overall, data for the 2008-2012 periods indicated that an annual average of 8.7% of full-time workers in the 18-64 age range used alcohol heavily in the past month, 8.6% used illicit drugs in the past month, and 9.5% were dependent on or abused alcohol or illicit drugs in the past year.

Demographics play a role in the data. Prior research shows heavy alcohol use and illicit drug use are more common among males and younger workers (through age 34), than among females and older workers (age 35 and above). Industries with younger, predominantly male workers thus were found to have higher alcohol and drug use rates. However, researchers reported no discernible trend toward increased or decreased substance use in the data for this period compared to that for 2003 through 2007.

Citing the Office of National Drug Control Policy, SAMHSA observed: “substance use negatively affects U.S. industry through lost productivity, workplace accidents and injuries, employee absenteeism, low morale, and increased illness. U.S. companies lose billions of dollars a year because of employees’ alcohol and drug use and related problems.”

An effective substance abuse testing policy may help employers reduce the incidences of drug and alcohol abuse in their workplaces. For further information, please contact the Jackson Lewis Drug Testing and Substance Abuse Management Group.

The New York State Department of Health has issued regulations implementing the State’s medical marijuana law, enacted last July.  (See post, New York Becomes 23rd State to Enact Medical Marijuana Law, July 10, 2014).

Published April 15 in the State Register, the regulations allow the use of marijuana for patients with cancer, AIDS, Lou Gehrig’s disease, Parkinson’s disease, multiple sclerosis, certain spinal cord injuries, epilepsy, inflammatory bowel disease, neuropathies, and Huntington’s Disease, and symptoms including severe or chronic pain, surgeries, severe nausea, persistent muscle spasms and wasting syndrome, who comply with the rules. The Commissioner of Health may add other conditions, symptoms or complications, under the regulations.

In accordance with the law, those patients will be able to use only non-smokable forms or marijuana, to be ingested or vaporized. “Smoking is not an approved route of administration.” However, even vaporization is banned in public places, and in no case may approved medical marijuana be consumed through vaporization in locations where smoking would be prohibited by the State’s Public Health Law, including places of employment. Products authorized by the regulations are restricted to liquids, oils or capsules. Unless the Commissioner approves, approved marijuana products may not be incorporated into edible food products by a registered organization.

Only five businesses or non-profits in the State may be licensed to grow, process of distribute approved marijuana. Each such enterprise may have four dispensing facilities. The Commissioner can consider permitting more dispensing facilities.

While implementation will not be immediate, employers should prepare for responding to employees taking marijuana under the law and regulations.

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 by the parties in federal district court in Miami.  The agreement applies to employees in union bargaining units.

Pursuant to the settlement, the Governor reportedly may conduct random testing among certain state employees, in 157 job classes across 10 state agencies, such as certain health care workers, including nurses, engineers, park rangers, electricians in the State transportation department, heavy equipment operators and classroom teachers working with the Florida Agency for Persons With Disabilities – an estimated 7,000 in all, represented by AFSCME Council 79, the plaintiff in the action.  The union represents more than 40,000 state workers that would have been affected by the Order.  The state will also pay the union $375 thousand in attorney’s fees and legal costs under the agreement.  The settlement stipulation awaits approval by a federal judge.

The union had challenged the Governor’s executive order on Fourth Amendment grounds.  In 2012, a federal district court had granted summary judgment to the union, agreeing that the order was unconstitutional.  The Eleventh Circuit court of appeals in Atlanta, however, vacated that ruling.  In its 2013 decision, the appellate court said that while the Governor’s directive appeared to sweep too broadly in violation of the Fourth Amendment proscription on unreasonable searches and seizures – it was not persuaded the order could be applied constitutionally to all 85,000 workers – the lower court’s testing ban also went too far.  The circuit court sent the case back, instructing the district court to limit its injunction only to those groups where the State could not show a “heightened interest” to justify the mandatory testing, such as employees in safety-sensitive positions.  The appeals court ordered the parties to prepare a list of jobs that could be subject to the testing.  The Governor sought review of the appeals court decision by the Supreme Court.  Earlier this month, however, the Supreme Court denied the Governor’s petition.

A spokesperson for the Governor said, “We are pleased that the settlement will allow Florida to protect families by ensuring state employees working in the most critical areas of safety and security remain drug-free.”

A retail employee in line for a store general manager’s position lost not only the promotion, but his job, as well, when he failed or refused to take a test because he could not provide a urine specimen as a result of “shy bladder syndrome.” The syndrome, or paruresis, makes it difficult for the individual to urinate in public restrooms. A federal district court in Ohio rejected the discharged employee’s ADA claim and granted summary judgment for the employer, concluding that even if the employee’s condition was protected by the ADA, he had not shown that he had ever made the Company aware of it prior to his dismissal, or had asked for an accommodation. Furthermore, he could not demonstrate the Company’s reliance on a violation of its substance abuse policy as the reason for his dismissal represented anything but an “honest belief” in his asserted misconduct, the court said. Lucas v. Gregg Appliances, Inc., 2015 U.S. Dist. LEXIS 49660 (S.D. Oh., W. Div., April 15, 2015).

After working his way up to becoming an assistant manager, Plaintiff employee was approved for promotion to store general manager contingent on his passing a drug test and background screen.

Plaintiff reported to the clinic after consuming 40 ounces of soda, he said, where a technician asked him to provide a urine specimen in a restroom with the door closed. After five minutes he came out, saying he could not comply, and telling the technician he had shy bladder syndrome. Asking for a second chance, he was allowed to consume five large glasses of water and to wait about an hour and one-half before making a second attempt. Again, he was unable to produce a specimen.

The technician told Plaintiff he still had an hour and 45 minutes remaining in which he could provide a specimen, and that leaving before his time expired would be considered a refusal or failure to test, but Plaintiff left anyway, saying he was unable to wait and would reschedule the test through his employer.

Plaintiff went directly to work, about five minutes from the clinic, where he was able to urinate right away. He told his immediate supervisor that he had been unable to provide a specimen at the clinic, but did not mention shy bladder syndrome. His supervisor reminded him he would have to pass the drug test.

Shortly thereafter, the clinic reported to the employer’s representative for its drug testing program that Plaintiff had not provided a specimen; however, its communication did not mention his explanation of shy bladder syndrome. Management officials discussed the matter in an effort to determine what action to take. Although the Plaintiff’s immediate supervisor was in favor of giving him another chance, the employer representative concluded this “is considered a positive in our books,” asking the vice president of human resources how she would like to proceed. Following further discussion, the vice president decided Plaintiff should be terminated. At the time, she had no knowledge that Plaintiff had an asserted disability or impairment; he had never communicated such a problem to any Company official. Meanwhile, Plaintiff had sought to schedule another urinalysis drug test at the clinic.

Two days after visiting the clinic, Plaintiff was terminated. Only afterward did he tell management that he had been coping with a shy bladder syndrome for years, and offer to take another, alternative drug test (e.g., blood, hair). The offer was rejected. Plaintiff filed suit.

The court granted the Company summary judgment. The court found that Plaintiff failed to show the vice president of human resources knew or should have known about his claimed disability. She knew only that he had left the clinic without providing a sample. The fact that he told his supervisor after his visit to the clinic he had been unable to provide a specimen did not amount to communicating that he had an impairment. Neither did Plaintiff provide any basis for attributing knowledge to any other Company employee of his inability to provide urine on request, the court found. Furthermore, he did not request to take an alternative test until after he was terminated; he merely attempted to schedule a second urinalysis test.

These circumstances also undermined Plaintiff’s allegation that the Company failed to accommodate his claimed disability. The court concluded that asking to take a second urine drug test prior to his termination offered no basis for the Company to suspect that this request was related in any way to a repeated on ongoing condition. That Plaintiff drank water at the collection site water and waited to try again to provide a specimen, and attempted to schedule a second urine test the following day, belied his argument that the Company refused to make a reasonable accommodation, it said.

Finally, the court concluded Plaintiff could not demonstrate that the Company’s non-discriminatory explanation for his dismissal was pretextual. He was unable to show, under Sixth Circuit law binding on this court, that the Company did not hold an “honest belief” in the correctness of its action. Plaintiff could not gainsay “its reasonable reliance on the particularized facts before it at the time the decision was made,” regardless of whether it later turned out the Company’s reason was mistaken. In the court’s opinion, he produced no evidence that the vice president of human resources who ordered his termination “did not make a reasonably informed and considered decision” that Plaintiff had failed to provide a urine specimen when required, and further, that this constituted a refusal to submit under the Company’s policy.