A Florida county park ranger was lawfully terminated from his job after he failed to take a drug test following a vehicular accident, where the county believed he had sustained an injury and where its drug testing policy provided that the county could require him to seek workers’ compensation medical treatment for the injury. Granting summary judgment to Manatee County in the ranger’s lawsuit for discrimination and, in part, for retaliation, allegedly in violation of the Age Discrimination in Employment act and the Florida Civil Rights Act, the United States District Court in Tampa concluded that the undisputed evidence showed that he was terminated for a legitimate, non-pretextual reason.

Alan Behrens was a passenger in a county truck driven by his supervisor when the truck was involved in a minor accident. County policy required the accident to be reported immediately and that post-accident drug and alcohol testing be conducted within 2 hours of the accident. Behrens was not scheduled to work again for another 6 days, but on the day he was to return he called in sick. Believing the absence was linked to the accident, the park ranger’s supervisor submitted, for the first time, a drug test referral form for Behrens based on a request for workers’ compensation. Behrens denied he requested workers’ compensation, but reported to a medical facility approved by the county for workers’ compensation claims, as “ordered” by his supervisor. Behrens waited for some time to be called in for his examination. He began to experience low blood sugar symptoms. The nurse who was escorting him quoted him as saying he felt a little hungry, that he was going out to eat half a sandwich which he had in his truck, and that he would return. He then left. The medical facility advised the County, however, that he did not return and closed the workers’ compensation claim. The County treated Behrens’s actions as a refusal to submit to a test. Behrens claimed he did not realize this conduct was a refusal. He was terminated for violating the drug testing policy, and brought suit after filing a charge with the EEOC.

The County’s zero-tolerance drug policy stated, in part, “[a]ny on-the-job injury, for which an employee requests or is required to seek Workers’ Compensation medical treatment, amounts to sufficient reasonable suspicion to require drug testing. All employees reporting for such medical treatment will submit to a drug/alcohol test as part of the evaluation.” Violations result in automatic termination.

The court concluded that the county had carried its burden of establishing that Behrens was terminated for a legitimate, non-discriminatory reason: Behrens was required by the county to seek medical treatment related to his involvement in the accident; that allowed the county to require his submission to a drug test, which it did; and, Behrens did not submit to a test. The county thus maintained it believed that Behrens had violated its policy and should be fired.

The court concluded the park ranger could not show the county’s reason for his dismissal was pretextual and unlawful. Behrens could not rely on his assertions that the policy was unfair or mistaken; rather, he had to show the county did not rely on the reasons it offered, and that it did not honestly believe he had violated its drug-free policy. Behrens could not do so, the court held. Behrens’ contentions about his beliefs – disclaiming workers compensation, not realizing he was refusing a drug test, lack of notification that the test was mandatory – “cast no doubt on the County’s motivations,” the court found. That the test allegedly was improper under the policy because it was not administered within 32 hours of the incident involving the truck also was of “no moment”; the county could reasonably interpret its policy as requiring a drug test in the course of seeking workers’ compensation independent of the requirement for post-accident testing, as was indicated by the language of the referral form. Likewise, the fact none of the terminations for non-compliance with the County’s drug policy were based on refusals to test failed to undermine the County’s assertion that a refusal resulted in termination on an automatic, non-discriminatory basis.

Courts afford employers considerable discretion in interpreting their own published substance abuse policies. Here the employee’s disappearance after reporting to the medical facility for a workers’ compensation-related examination, including a drug test, as his supervisor directed, may have weighed heavily in the court’s decision because the test was authorized by the County’s policy, even if it was not a post-accident test. In general, employers seek to administer post-accident tests as soon as possible after the incident triggering the need for a test, so as to better assure the tests reflect the employee’s condition at the time of the accident. (Drivers covered by DOT substance abuse testing rules are required to be drug tested within 32 hours of an accident, as defined by the rules, and alcohol tested within 8 hours (but preferably within 2).) Employers also should be mindful of a proposed OSHA rule that may restrict post-injury drug and alcohol testing in the absence of reasonable suspicion. Although the county’s policy here stated that a referral for a workers’ compensation medical examination amounted to reasonable suspicion for testing, some states’ laws may prohibit substance abuse testing only for a claimed workers’ compensation injury.

More importantly, leaving a testing facility before giving a specimen for drug or alcohol testing constitutes a refusal to test under many workplace substance abuse policies. This case highlights the necessity of including a comprehensive definition of “refusing to submit” in a drug and alcohol testing policy, and communicating the policy clearly to employees. Employees should be made aware that if they do not submit to testing in the time and manner specified by the employer, they will be deemed to have refused the test and will be terminated.

 

A tip regarding employee on-the-job drug use by an unidentified source, relayed second-hand by a news reporter, is insufficient to establish individualized reasonable suspicion (required under the Fourth Amendment) to require a public employee to submit to a drug test, according to a recent decision by the United States District Court for the Eastern District of Michigan. Greer v. McCormick, 2015 U.S. Dist. LEXIS 31211 (E.D. Mich., Mar. 13, 2015).

Ralph Greer, Jr. was employed as a construction inspector by the Detroit Department of Water and Sewage (“DWSD”), a public employer. In September 2013, Greer was assigned to a project involving the repair of a water main. During the course of this project, a television reporter contacted DWSD’s Director of Public Relations to advise that “an anonymous source allegedly told him that some undescribed individual driving a DWSD vehicle was smoking marijuana in that vehicle.” The tipster alleged that photographic evidence existed, but refused to provide such evidence. Based on this tip, DWSD determined that the vehicle had been assigned to Greer on the day in question. Without any additional corroboration, Greer was instructed to submit to a urine drug test. Greer refused to undergo the test, following the advice of his union representative and was ultimately suspended and discharged. Greer grieved the discipline and was reinstated without lost wages and benefits. The arbitrator specifically stated that the decision did not address whether the discharge violated Greer’s Fourth Amendment rights.

Greer filed suit in the Eastern District of Michigan, this time naming the individual DWSD employees who ordered Greer’s submission to the drug test and who suspended and discharged Greer. Greer alleged that the defendants did not possess reasonable suspicion that Greer had engaged in illegal drug use while on the job. As a result, the drug test lacked any basis. In response to a motion to dismiss brought by the defendants, the Court concluded that the search (the drug test) was constitutionally impermissible. As a result, the defendants were not entitled to qualified immunity. At a minimum, DWSD was obligated to establish the reliability of the anonymous tip before conducting a search based on it. Because DWSD did not do so, the Court concluded that the anonymous tip did not provide the individualized reasonable suspicion sufficient to require Greer to submit to a urine drug test.

A federal district court dismissed the discrimination claims of an alcoholic individual who claimed that his former employer refused to rehire him after he completed alcohol rehabilitation. Alexander v. Washington Metropolitan Area Transit Authority, No. 12-cv-1959 (D.D.C. March 10, 2015).

Alexander was a former employee of the Washington Metropolitan Area Transit Authority (“WMATA”) who suffered from alcoholism for many years. In April 2007, Alexander tested positive on an alcohol test and was suspended and referred to the Employee Assistance Program. He was required to submit to periodic alcohol tests as a condition of his reinstatement. In January 2009, Alexander again tested positive for alcohol at work. His employment was terminated.

After completing an alcohol treatment program, Alexander reapplied for several positions at WMATA in April or May 2010, August 2011 and October 2011. He was not hired. Alexander filed a complaint with the Equal Employment Opportunity Commission, alleging that he was not hired because of his alcohol dependency, in violation of the Rehabilitation Act of 1973.

Alexander did not argue that he was disabled because he had a record of an impairment, or because he was “regarded as” disabled. Rather, he argued that he was disabled because he had a physical or mental impairment that substantially limited one or more major life activity. Specifically, he claimed that he had an impairment (alcoholism) that affected major life activities (ability to care for himself, walking, concentrating and sleeping). However, the court held that his claim failed because he did not establish how his alcoholism substantially limited any of those activities. His conclusory assertions alone were insufficient to establish that he was “an individual with a disability” and the court entered summary judgment on behalf of WMATA.

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

In August 2013, Jodi Hammel was terminated from her position as an administrative assistant shortly after SOAR Corp. learned Hammel had failed her pre-employment drug test.  (Though Hammel had taken a drug test as part of the Company’s hiring process, she was permitted to begin work before SOAR received the test results).  After learning of her positive test result, Hammel claims she informed a Company representative that she was taking pain medication for a degenerative disc disease and sciatica, and offered to provide medical documentation in support of her explanation.  Shortly thereafter, Hammel provided three doctors’ notes substantiating her medical condition and confirming her use of prescription medication.  Two days later, the Company terminated Hammel, purportedly because it learned Hammel had falsified her work history and employment references.

Hammel filed suit in the Eastern District of Pennsylvania, alleging SOAR violated the ADA by (among other claims) failing to accommodate her disability.  The Court denied SOAR’s motion for summary judgment, finding that a jury could have interpreted Plaintiff’s request to provide medical documentation excusing her drug test as a request for accommodation, thereby triggering SOAR’s legal obligation to engage in the interactive process.  Further, the Court found the Company’s failure to “take initiative” in response to Hammel’s request a possible sign of bad-faith.

Nebraska and Oklahoma have asked the U.S. Supreme Court to let them file suit against Colorado, challenging that State’s legalization of marijuana.  Colorado’s neighbors contend, among other things, that the state’s marijuana legalization program violates the federal Controlled Substances Act, which makes the cultivation, trafficking and possession of marijuana unlawful and that federal law is controlling under the U.S. Constitution.  Nebraska and Oklahoma invoked a rarely used constitutional provision giving the High Court original jurisdiction over suits between states.  They seek a declaration that the Colorado legalization program is unconstitutional.

The case was filed by Nebraska Attorney General Jon Bruning and Oklahoma Attorney General Scott Pruitt.  In announcing the suit, Bruning said, “Federal law independently prohibits the production and sale of marijuana.  Colorado has undermined the United States Constitution, and I hope the U.S. Supreme Court will uphold on constitutional principles.”  He asserted further that Congress has enforced the principle that drugs “threaten the health and safety of our children and the trafficking of drugs is a national, interstate problem.”  Trafficking in neighboring states, the action contends, unnecessarily burdens states such as Nebraska, especially their criminal justice system.

Colorado’s Attorney General has stated that he intends to fight the suit.

The suit is likely to be a focus of controversy in the debate over legalization of marijuana.

Buried in the $1.1 trillion federal spending bill for 2015 — which Congress approved last weekend and which President Obama signed into law on December 16, 2014 — is a measure stating that federal funds may not be used by the U.S. Department of Justice (DOJ) to prevent certain states from implementing medical marijuana laws.  The measure provides:

None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

This prohibition has been widely touted in some media as signaling a reversal of the ban on medical marijuana under federal law.  It does not.  It merely restricts the use of funds in a one-year budget bill.  The bill does not exempt marijuana as an illegal Schedule I drug under the federal Controlled Substances Act.  (A Schedule I drug is one that has a high potential for abuse, lacks any accepted medical use, and lacks any accepted safety for use in medically supervised treatment.)

The inclusion of this provision follows an August 2013 U.S. Department of Justice announcement that, as a matter of prosecutorial discretion, DOJ would not use its limited resources to challenge state laws legalizing recreational marijuana, as long as the states implemented strong regulatory schemes to prevent crime.  We blogged about that policy shift here.

Notably, the budget bill’s list of states excludes New York, which passed a medical marijuana law in 2014 (that law is expected to take effect in late 2015).  It seems unlikely, however, that DOJ will enforce a different policy in New York than in the states listed in the budget bill.

What are the implications for employers?

As stated previously, marijuana remains illegal under federal law.  But because the current Administration will not be taking any action to prevent the implementation of medical marijuana and, we expect, recreational marijuana laws, there is a public perception that the federal government endorses these laws.  While the budget bill does not make marijuana legal under federal law, employers should review carefully the applicable medical and recreational marijuana laws in the states where they operate to determine whether these laws impose any obligations on employers (many do not).  In those states where the medical marijuana laws prohibit employment discrimination, employers should assess the risk in formulating their policies.  One risk, for example, is that state courts and state administrative agencies may choose to enforce state laws and ignore federal law when faced with these issues (particularly now that Congress has expressed  a “hands-off” approach).  Employers should be cognizant of the risks and consult with counsel to create appropriate strategies to address medical and recreational marijuana in the workplace.

Employees subject to U.S. Department of Transportation (“DOT”) drug and alcohol testing regulations may have limited privacy interests in their positive drug and alcohol test results of their positive drug and alcohol tests, according to a recent decision by the United States District Court for the Eastern District of California. McTimmonds v. Alcohol and Drug Testing Services, LLC, 2014 U.S. Dist. LEXIS 167656 (E.D.Ca. Dec. 2, 2014).

Plaintiff Daniel McTimmonds filed suit against national drug and alcohol testing company Alcohol and Drug Testing Services, LLC (“ADTS”), alleging he suffered severe emotional distress as a result of ADTS’ actions during a DOT-mandated random drug and alcohol test. Plaintiff, an employee of Union Pacific Railroad, was required by the Federal Railroad Safety Act to undergo periodic, random drug and alcohol tests.

On July 17, 2013, upon instructions by Union Pacific Railroad, Plaintiff reported to a local ADTS testing site to undergo such a test. According to Plaintiff’s Complaint, an ADTS technician administered his breathalyzer test in a public room, in the presence of Plaintiff’s coworkers (all of whom also were undergoing random drug and alcohol tests). After reviewing the results of the breathalyzer test – which indicated Plaintiff had a blood alcohol content of .05% (which constitutes a positive test result) — the ADTS technician “very loudly and publicly” questioned Plaintiff as to whether he had “been drinking this morning.” Still in the presence of his coworkers, Plaintiff denied he had drank any alcohol, to which the ADTS technician responded, “Well, this says you have been!”

According to Plaintiff, he requested the ADTS technician lower her voice as the “information was private” and his coworkers were nearby. The technician dismissed his request, waiving her hands in the air and claiming she “had been asking . . . for a private room for the last two years.” Shortly thereafter, Plaintiff overheard the technician speaking on her cell phone to an unknown party and “sharing information about the testing procedure involving Plaintiff and clearly disclosing information regarding Plaintiff’s response and objections to the testing procedures and conditions.” Plaintiff complained to an ADTS supervisor, who recommended the technician re-administer the breathalyzer test inside an office. This test also was positive for alcohol.

Plaintiff filed suit, alleging invasion of privacy, intentional infliction of emotional distress and negligent infliction of emotional distress. He made no allegations concerning any discipline or other adverse employment action that may have resulted from his positive alcohol test result. ADTS moved to dismiss.

Plaintiff argued that ADTS’ actions constituted a public disclosure of a private fact, an actionable tort under California law (the Complaint was filed in federal court on diversity grounds). In order to properly plead such a claim, Plaintiff was required to allege facts sufficient to establish ADTS publicly disclosed a private fact; that the fact was offensive and objectionable to a reasonable person; and, that the fact is not of legitimate public concern. Plaintiff claimed that the ADTS technician publicly disclosed his positive alcohol test result to six other people who were present. The Court held that Plaintiff’s positive breathalyzer test was not a private fact, noting that Plaintiff had not identified any privacy interest in his positive breathalyzer test. The Court further reasoned that even if Plaintiff did identify a privacy interest, it would be outweighed by the Federal Railroad Administration’s legitimate interests of the state in in conducting drug and alcohol testing “to prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs.” The Court also found Plaintiff failed to plead a public disclosure, as the tort envisions disclosure to the public at large, not to a small group of individuals in a waiting room.

The Court dismissed Plaintiff’s claims for intentional and negligent infliction of emotional distress, as Plaintiff failed to plead adequate harm.

An employee’s admission of off-duty marijuana use was not “misconduct” sufficient to deny unemployment benefits, even if it may have been a sufficient reason for his discharge, according to an Illinois appellate court.  Eastham v. The Housing Authority of Jefferson County, No. 09-MR-57 (Ill. App. Ct. 5th Dist. Dec. 2, 2014).

Eastham worked for the Housing Authority of Jefferson County in its maintenance facility, but his job was not safety-sensitive.  He was required to submit to a random drug test pursuant to the Housing Authority’s drug-and-alcohol-free workplace policy.  The policy provided that the “possession, use, consumption or being under the influence of a controlled substance…while on Housing Authority premises and/or while in the course of employment of the Housing Authority” would be a violation of the terms of employment.  After taking the test, Eastham informed his supervisor that he had smoked marijuana on two occasions while on a vacation a few weeks earlier.  Eastham believed he would not pass the drug test.  As a result, Eastham was terminated for violating the Housing Authority’s policy.  Following his discharge, the result of the drug test came back negative.

Eastham subsequently filed a claim for unemployment benefits under the state’s Unemployment Insurance Act.  The application for benefits included a question which asked whether the claimant’s employer had a rule or policy that related to the last act that led to the claimant’s discharge, and, if so, what the rule or policy was.  Eastham indicated a policy existed, specifically noting, “not using drugs while employed” by the Housing Authority.  The Department of Employment Security claims adjudicator found Eastham to be ineligible for benefits.  This decision was affirmed by a Department of Employment Security referee, as well as by the Board of Review of the Department of Employment Security.  The Board concluded that “while in the course of employment” referred to Eastham’s entire “tenure while working for the employer, not just while performing services.”

Eastham appealed the Board’s decision to the Circuit Court of Jefferson County which reversed the Board’s decision, finding the Board had “misapplied the definition of ‘in the course of employment.’”  In addition, the Circuit Court found that the Housing Authority’s policy was unreasonable.  The Appellate Court affirmed, after reviewing whether the Board properly concluded that Eastham’s conduct consisted of “misconduct within the Unemployment Insurance Act” (under the Act, employees discharged for misconduct are ineligible to receive unemployment benefits).  The Court of Appeals analyzed the three elements necessary to establish misconduct, focusing on whether Eastham had actually violated the Housing Authority’s policy, due to the meaning of the phrase, “while in the course of” employment.  The Appellate Court rejected the Board’s interpretation, stating instead that Illinois courts define the phrase in the context of workers’ compensation claims to mean “at a place where the employee is reasonably expected to fulfill her duties” and “while she is performing those duties.”  In addition, because Eastham’s drug test was negative, he did not violate the policy by being “under the influence” of drugs at work.

Although the Appellate Court found the Housing Authority’s drug policy generally to be reasonable, it rejected the employer’s argument that the policy should be interpreted to prohibit any use of illicit substances at any time during an employee’s tenure and also to allow the discharge of an employee who admits to using marijuana off-duty even where the employee does not fail a drug test.  The Court emphasized that Eastham’s job was not safety-sensitive, and further noted that the federal Drug-Free Workplace Act “does not require grant recipients to discharge an employee for off-duty marijuana use.”

While Eastham’s actions did not constitute misconduct that would disqualify him from receiving unemployment insurance benefits, the Court stated that it was not deciding whether his admission was sufficient to justify his discharge.  “An employee’s conduct may be sufficient to justify his discharge without constituting misconduct sufficient to disqualify him from benefits under the Unemployment Insurance Act.”

Minnesota Vikings running back Adrian Peterson, who recently was booked on felony child abuse charges in Montgomery County, Texas, reportedly admitted that he “smoked a little weed” in violation of the conditions of his bond, which required drug testing. While giving a urine sample last month, he allegedly told an employee of the testing company that he had used marijuana, according to documents obtained by local media. “In light of this statement, and the fact that it was made during the urinalysis testing process, and the term ‘weed’ is a common slang term for marijuana, the State urges the defendant has smoked marijuana while on bond for the current offense,” said a court document cited by the Houston Chronicle.

Peterson’s alleged admission highlights a common occurrence when employees are confronted with a requirement to take a drug test:  they often confess. Sometimes they suggest that the employer need not bother with the test because they know they will test positive.  Under the Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”), admissions of drug use and a positive drug test have very different legal ramifications. In Minnesota, “an employer may not discharge an employee for whom a positive drug test result . . . was the first such result for the employee on a drug or alcohol test requested by the employer” unless the employee has been given the opportunity to participate in and complete a drug counseling or rehabilitation program.

In one unreported District of Minnesota decision, a bank employee came forward and admitted to methamphetamine addiction and requested time off for treatment, which was  allowed (without a drug test). After he returned and was acting erratically, the employer sent him for testing and he tested positive. He later was terminated after starting but not completing a second treatment regimen, and the court ruled that the termination was unlawful because he had not been allowed to complete the second treatment program, since the first treatment was not connected to a “positive drug test result.”

Conversely, if an employee confesses to drug use on work premises in violation of company policy, a Minnesota employer might be allowed to terminate the employee immediately, without any requirement to allow the employee to attend a treatment program, as long as there was no drug test and therefore no “positive drug test result” to invoke the DATWA statute.

With regard to federal drug testing, (for example, commercial motor vehicle drivers under U.S. DOT regulations), an employer should proceed with a drug test when mandated, regardless of the employee’s confession.  Drug testing laws in other states vary widely, but in some circumstances a confession is not the same as a positive drug test result.  Four other states do not permit employers to terminate employment after a first-time positive test result:  Iowa (but only for a positive alcohol test, not drugs), Maine, Rhode Island and Vermont.  Employers should consult with legal counsel before taking adverse employment actions that could violate state or local drug testing laws.

 

 

Election Day 2014 saw Oregon, Alaska and the District of Columbia pass laws legalizing recreational marijuana.  Almost half the states in this country have laws permitting medical marijuana.  As state and local marijuana laws continue to proliferate, join us for an informative and timely 60-minute webinar addressing critical questions for employers, including:

  • How do these laws impact employers’ policies prohibiting the use of drugs and alcohol in the workplace?
  • Isn’t marijuana still illegal under federal law?
  • Must employers comply with state and local laws allowing the use of marijuana under certain circumstances?
  • Are employers required to accommodate disabled employees who state that they need to use marijuana for medical purposes?
  • Are employers required to tolerate recreational use of marijuana in states that permit it, if the employer has a zero-tolerance policy?
  • How do these marijuana laws affect employers’ drug testing policies, given that drug tests cannot detect whether drug use was on-duty or off-duty?
  • What are the risks for employers who follow federal law?  What are the risks for employers who follow state and local laws? Is there any way to comply with all applicable laws?

 

Wednesday, December 10, 2014

Date/Time: 2:00 – 3:00 p.m. EST

Location: Webinar

Fee: Complimentary

Credit: 1 HRCI Credit (Pending)

 

CLICK HERE TO REGISTER