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

 

Voters in Oregon, Alaska and the District of Columbia approved laws legalizing recreational marijuana yesterday.  Colorado and Washington first passed such laws in 2012.

Laws legalizing recreational marijuana reflect a growing acceptance of marijuana use by the American public as well as the federal government’s current position (since mid-2013) not to oppose state laws permitting marijuana for medical and recreational purposes.  Marijuana is the country’s most popular substance of abuse (after alcohol) and remains an illegal drug under federal law.

The Oregon and Alaska laws legalize recreational marijuana use and create a network of retail marijuana stores similar to those operating in Colorado and Washington.  The District of Columbia measure is more restrictive in that it permits individuals over the age of 21 to possess up to two ounces of marijuana for personal use and grow up to six marijuana plants at home.  Due to D.C.’s status as a district, not a state, its laws are subject to Congressional and Presidential approval.  It is unclear whether Congress and the President will approve this law, particularly when marijuana still is illegal under federal law.

There is some good news for employers, however.  The new laws in Alaska and D.C. explicitly state that nothing in those laws are intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.  Both laws also prohibit driving while under the influence of marijuana.

The Oregon law provides that the new marijuana law may not be construed to amend or affect in any way any state or federal law pertaining to employment matters, or to exempt a person from a federal law or obstruct the enforcement of a federal law.  There are also provisions permitting federal contractors and grantees to prohibit the manufacture, delivery, possession or use of marijuana to the extent necessary to satisfy the federal requirements for the grant or contract.

The Oregon law takes effect on July 1, 2015 and stores could open the following year.  Alaska’s law will become effective 90 days after the election is certified, followed by a nine-month period to create implementing regulations.

Employers in jurisdictions with medical marijuana laws or recreational marijuana laws should carefully consider their policies with respect to marijuana use.  While there is little risk under federal law, there may be certain risks under some state laws where marijuana use is permitted.  Those risks must be weighed against an employer’s need to operate a safe workplace.

A Michigan appellate court has held that an employee who holds a state medical marijuana card is not disqualified from receiving unemployment benefits after the employee has been terminated for failing a drug test, where the employee received a positive test result for marijuana or its metabolites.  Thus, the question we posed earlier this year, shortly after one of the three cases involved in the consolidated Court of Appeals decision was determined by a lower court — “Will Positive Medical Marijuana Test Result In Denial of Unemployment Benefit?” — has been answered in the negative.  Braska v. Challenge Mfg. Co. and Dep’t. of Licensing & Reg. Affairs, Unemployment Insurance Agency, (DLRA/UIA) No. 313932 (Kent Circuit Court); Kemp v. Hayes Green Beach Mem. Hosp. and DLRA, UIA, No. 315441 (Ingham Circuit Court); and Kudzia v. Avasi Services, Inc. and DLRA, UIA, No. 318344 (Macomb Circuit Court), decided October 24, 2014.

Each of the employees involved had a registration identification card under the Michigan Medical Marihuana Act (MMMA) and was fired based on a positive drug test result.  There was no evidence they used marijuana other than as permitted under the Act.  They had not appeared to be impaired at work.

The appeals court concluded that although the Michigan Employment Security Act (MESA), which authorized the payment of unemployment insurance, provided a disqualification for a suspension or termination resulting from a positive drug test, the MMMA preempted or trumped that statute by granting a qualifying patient “broad” immunity from “arrest, prosecution, or penalty in any manner, or den[ial of] any right or privilege, including but not limited to civil penalty…for the medical use of marijuana in accordance with this act….”

The Court found that a denial of unemployment benefits by a state actor, the DLRA/UIA, would constitute a proscribed “penalty” under the MMMA, since the claimants here otherwise met the threshold requirements for the receipt of unemployment benefits and the only reason they were disqualified was for their positive test results for marijuana.  Thus, the court held, the claimants had to forfeit their right to unemployment benefits simply because they used medical marijuana.

The court accordingly rejected a DLRA argument that disqualification was not a penalty; it was, it said, if a claimant otherwise satisfied the requirements for benefits.  In response to the agency’s argument that the court should distinguish between the act of failing a drug test from the medical use of marijuana, the court stated that it declined the “invitation to ignore the basis for the positive drug tests and engage in linguistic gymnastics in an attempt to avoid the plain language of the MMMA.”  The two were “inextricably intertwined,” the court said.

The court likewise rejected a contention that in upholding an award of benefits, the court would have to disregard the MMMA’s provision that employers are not required to accommodate the use of marijuana in the workplace, saying that the provision did not say that an employer is not required to accommodate the medical use of marijuana, including its “internal possession.”  Instead, the court concluded that only the ingestion of marijuana in any workplace or working while under the influence of marijuana need not be accommodated.  There was no evidence the claimants either ingested marijuana at work or worked under its influence, the court said.

The court rejected the DLRA’s reliance on a Sixth Circuit decision, Casias v. Wal-Mart, 695 F.3d 428 (6th Cir. 2012), to support its argument that the MMMA does not apply to private employers, stating such reliance was unpersuasive.  First, the court noted that federal court precedent is not binding on a state court.  Second, the issue was not whether a private employer violated the MMMA, as in Casias, but whether the Michigan Compensation Appellate Commission (MCAC), as a state actor, had done so.  There was no question the MMMA applied to that agency.

Accordingly, the appeals court upheld the lower court decisions reversing the decisions of the MCAC denying the claimants benefits.

Click here to read our colleague Noel P. Tripp’s blog about a recent decision rejecting three New York Police officers’ claims that they should have been paid for time spent in alcohol rehabilitation and counseling sessions.  Makinen v. City of New York, 2014 U.S. Dist. LEXIS 139732 (S.D.N.Y. Sept. 30, 2014).

The U.S. Department of Transportation (DOT) issued on September 30, 2014 a reminder to Medical Review Officers (MROs) concerning transportation employees’ use of prescription medications.  Specifically, the reminder addressed the process to be followed when verifying drug test results of employees who use prescription medications, as well as the MRO’s obligation to raise fitness-for-duty concerns to the employer.

A Medical Review Officer is a licensed physician who is knowledgeable about and has clinical experience in controlled substances abuse disorders, including detailed knowledge of alternative medical explanations for laboratory confirmed drug test results.  MROs review drug test results before the results are reported to the employer.  DOT’s reminder stated that when an employee’s drug test result is non-negative and the employee claims that the result is due to the use of prescription medication, the MRO is required to determine whether the medical explanation is legitimate.  The MRO must verify the authenticity of all records provided by the employee including, for example, contacting the employee’s pharmacy and the employee’s physician.

More significantly, DOT’s reminder stated that even if the MRO accepts the employee’s medical explanation and verifies the drug test result as negative, the MRO still may have a responsibility to raise fitness-for-duty considerations.  Specifically, under DOT regulations, a MRO must report drug test results and medical information that was learned as part of the verification process — without the employee’s consent — if, in the MRO’s reasonable medical judgment:  (1) the information is likely to result in the employee being determined to be medically unqualified under an applicable DOT agency regulation; or, (2) the information indicates that continued performance by the employee of his or her safety-sensitive function is likely to pose a significant safety risk.

These guidelines are instructive even in the non-DOT context.  Many employers who conduct workplace drug and alcohol testing worry that MROs will give a pass to anyone who presents a prescription (this is especially true for medical marijuana).  Employers who employ safety-sensitive employees should ensure that their MROs will provide them with information (as permitted by applicable state law) if the employee is likely to pose a significant safety risk.  The employer then will need to conduct the direct threat analysis as required by the Americans with Disabilities Act (and comparable state laws) and may also need to consider other issues such as state medical marijuana laws.

Employees regulated by U.S. Department of Transportation (DOT) drug and alcohol testing regulations are required to report for drug or alcohol tests within a reasonable amount of time as determined by the employer. A failure to show up or significant delay in reporting for testing may be deemed a “refusal to test,” as a municipal transit system employee learned in a recent decision of a federal appeals court in New Orleans, rejecting his claim under the Americans With Disabilities Act (ADA) and analogous state law. Leaumont v. City of Alexandria, 2014 U.S. App. LEXIS 17930 (5th Cir., No. 14-30330, Sep. 18, 2014)(summary calendar).

The court held that a city bus department transit manager had no claim under the ADA for being suspended from safety-sensitive duties after he failed to report for a DOT-required random drug test and unsuccessfully sought to make it up the following day.

A personnel analyst for the City notified the employee that he had had to take a random drug test that day pursuant to the City’s substance abuse policy, but the employee did not report for a specimen collection. The next day he called the analyst to tell her he had forgotten to report for the test. She set up another test for the following day, which the employee attended and at which he provided a specimen, which tested negative. Nevertheless, his failure to appear at the originally scheduled test was deemed a “refusal to test.” He was suspended from performing safety-sensitive duties and was told he would be eligible for reinstatement only after a substance abuse professional evaluated him and deemed him eligible to return to work and he provided a negative drug test sample. A few weeks later the employee complied and was returned to his safety-sensitive duties.

The employee then brought state court suit for compensatory damages and to expunge his personnel record of the missed test incident, but the suit was removed to federal court as stating a claim under the ADA (as well as state anti-discrimination law), a conclusion in which the circuit court concurred.

The court of appeals found that a discrimination claim could not succeed under the ADA or state law in these circumstances. The plaintiff employee no longer was a “qualified” individual for the safety-sensitive job he had held, as a matter of law, once he failed to appear for the original random drug test, because DOT regulations forbade an employee who refused to submit to a required drug test to continue to perform such duties, 49 CFR § 655.49(a) (Federal Transit Administration regulations). Furthermore, the regulations also prohibited the employee from returning to those duties until approved to do so by a substance abuse professional and submitting a negative drug test result. 49 CFR § 40.305(a).

The court noted that DOT regulations define a “refusal to test” as a “[f]ail[ure] to appear for any test … within a reasonable time, as determined by the employer, consistent with the applicable DOT agency regulations, after being directed to do so by the employer.” 40 CFR § 40.191(a)(1)(emphasis added). Here, the employer’s substance abuse policy required the employee to “report immediately to the collection site” after being notified of a test. Although the court of appeals agreed with the lower court that under “certain hypothetical circumstances” a direction to report “immediately” upon being notified might prove unreasonable, it concluded “it is not unreasonable to require the employee to report within the same day he is notified.” The employee failed to do that.

The court made short work of the employee’s remaining arguments. It found his claimed “unforeseen circumstances” exception to the requirement to report for testing as directed by the employer unsupported by any case law; and even if there were such an exception, the court said, merely forgetting to show up, which the employee conceded was the reason for his refusal, would not satisfy it. Neither could the employee point to any authority supporting his position that by scheduling a second test, the city waived or nullified the federal reporting-for-test requirement. The court of appeals affirmed summary judgment in favor of the City.

Employers’ substance abuse policies should address the amount of time employees will be given to report for a random drug test, and should ensure that managers are trained to enforce those rules. A failure to report or excessive delay in reporting for drug and alcohol testing must be treated as a refusal to test under DOT regulations, and should be treated in a similar manner in non-DOT testing .

Blanket policies prohibiting alcoholic employees from consuming alcohol permanently – whether on-duty or off-duty – violate the Americans with Disabilities Act (ADA), according to the Equal Employment Opportunity Commission (EEOC) in an informal discussion letter dated August 28, 2014.

The representative of a union whose members are employed by a public utility that operates nuclear power plants regulated by the U.S. Nuclear Regulatory Commission asked the EEOC whether it is lawful for an employer to require employees who are alcoholics or perceived to be alcoholics to permanently abstain from drinking alcohol on and off the job as a condition of continued employment.  Pursuant to NRC regulations, the employer is required to implement procedures for screening employees it intends to grant unescorted access to secured or critical areas of nuclear power plants to assure that they are “trustworthy and reliable” and do not constitute “an unreasonable risk to public health and safety or the common defense and security, including the potential to create radiological sabotage.”

The union and the employer entered into a “two strikes and you are out” agreement that provided that the employer would conduct certain types of drug and alcohol tests of all employees and could discharge any employee after a second confirmed positive alcohol test at work.  The employer also imposed an additional requirement on employees who were referred (or referred themselves) to the Employee Assistance Program for alcohol counseling:  to permanently abstain from drinking on and off the job as a condition of being granted or maintaining security access.

The EEOC rejected such a blanket rule – applied to all alcoholics or individuals perceived to be alcoholics – primarily because no individualized assessment was conducted.  Specifically, the ADA does not permit employers to apply qualification standards that screen out, or tend to screen out, individuals on the basis of disability unless they are job-related for the position in question and consistent with business necessity.  Because some of the employees subject to the rule did not have performance or work-related conduct issues, the employer could not show that the blanket rule was necessary to ensure the employees were “trustworthy and reliable.”  Even if it was appropriate to require some employees to abstain from alcohol, or to subject certain employees to more frequent alcohol testing, the employer would have to make such a determination by conducting an individualized assessment based on a particular employee’s history rather than requiring all employees who are alcoholics or perceived to be alcoholics never to drink as a condition of keeping their jobs.

The ADA also prohibits employers from using safety-based qualification standards to screen out individuals with disabilities without showing that such individuals pose a direct threat (i.e., a significant risk of substantial harm to the individual or others) that cannot be reduced or eliminated with a reasonable accommodation.  The EEOC stated that the employer may not merely speculate that employees who are alcoholics or are perceived to be alcoholics may one day come to work under the influence of alcohol.  If the employer has imposed the permanent abstinence rule based on safety concerns, it must demonstrate that the standard is necessary in order to avoid a direct threat, based on an individual’s present ability to safely perform the essential functions of the job.  Because it did not appear that the employer’s blanket rule allowed for an individualized assessment of the risks that a particular employee posed, it did not appear to meet the direct threat standard.

There may be other compelling reasons why employers should not prohibit off-duty alcohol consumption.  Some states, including Colorado and New York, have “lawful activities” laws, which provide that employers may not take action against employees for engaging in lawful activities while they are off-duty.  Employers should review their alcohol consumption policies to ensure compliance with all applicable laws.