A new study published by Quest Diagnostics reported an increase in the workforce drug test positivity rate for the first time in ten years, fueled primarily by marijuana and amphetamines.  The Quest Drug Testing Index (DTI) released on September 11, 2014 also showed a large increase in positive marijuana test results in Colorado and Washington, where “recreational” marijuana now is permitted.

The DTI involved the analysis of de-identified results from urine, oral fluid and hair drug tests performed by Quest Diagnostics workplace drug testing laboratories across the country.  The results were analyzed by three categories of workers: (1) employees with private companies (U.S. general workforce), (2) employees subject to federal drug testing rules (safety-sensitive workforce) and (3) a combination of both groups (combined U.S. workforce).

The DTI found a positivity rate of 3.7 percent for the 7.6 million urine drug tests in the combined U.S. workforce, an increase from 3.5 percent in 2012.  According to Quest, the relative increase of 5.7 percent is the first time the positivity rate for combined national workplace urine drug tests has increased since 2003.

In addition, marijuana continued to be the most commonly detected illicit drug, with its positivity rate increasing 6.2 percent in the combined U.S. workforce, 5.6 percent in the safety-sensitive workforce and 5 percent in the general U.S. workforce.  When the urine test data for the general workforce was examined at the state level, it indicated marijuana positivity rate increases in Colorado and Washington — the two states with “recreational use” laws — of 20 and 23 percent respectively.  These figures are significant when compared with the 5 percent average increase among the U.S. general workforce in all states.  DTI data also showed a significant increase in oral fluid tests for marijuana, with positivity rates increasing 27 percent over the prior year.

Quest’s study also showed that amphetamine use (and methamphetamine use in particular) is on the rise with amphetamine positivity results reaching their highest levels on record and methamphetamine positive rates at their highest levels since 2007 (across all specimen types).

The study did register a decrease in one area, with a decline in positive test rates for prescription opiates (e.g., hydrocodone and oxycodone) of 8.3% between 2013 and 2012.

As the country’s attitude toward marijuana use relaxes, and more laws permitting marijuana use are enacted, employers should brace themselves for the increased likelihood of positive employee drug test results.  Employers should review their policies and ensure that they are familiar with the laws governing drug testing and marijuana use in all states where they operate.

Are employers at risk in their ability to conduct lawful post-accident drug and alcohol tests?

Maybe.

At least that is the answer for the many employers who are subject to the Occupational Safety and Health Administration’s recordkeeping rule (29 CFR Part 1904).

OSHA, in a “Supplemental Notice of Proposed Rulemaking” published recently in the Federal Register, announced that it is considering clarifying a requirement that employee reporting of occupational injuries and illnesses be “reasonable and not unduly burdensome,” by prohibiting employers from disciplining or taking “adverse action” against employees for reporting injuries and illnesses to their employers under the recordkeeping rule.

In public meetings conducted by the agency on its original proposed change to the recordkeeping rule (mandating electronic recordkeeping and posting of employer data on OSHA’s website), OSHA recounted, “Adverse action mentioned by participants included … requiring an employee who reported an injury to undergo drug testing where there was no reason to suspect drug use….” OSHA has invited further comment on the “kinds of adverse actions that might lead an employee to decide not to report an injury or illness,” and thus make such data less reliable.  OSHA would make it a violation for an employer to discourage reporting of an injury or illness by an employee in this manner.

Injuries, however, generally are a result of workplace accidents.  Were such a rule adopted, many employers — including those in high risk industries who have the greatest reason to conduct post-accident testing — could be limited to substance abuse tests post-accident based only on reasonable suspicion, at least where an injury is reported.

OSHA does not concern itself with a problem that arises frequently where supervisors cannot observe the employee immediately prior to the event causing injury, and so, as a practical matter, may be unable to establish reasonable suspicion, as the comment suggests should be required.  Yet, a drug or alcohol test still may be warranted.  Neither does the agency address exactly how it would define “reasonable suspicion,” whether “reason to suspect drug use” may be based on an employee’s causation of an accident, even in part, by an act of commission or omission, or whether agency compliance officers would defer to employer decisions as to the existence of reasonable suspicion.

One concern is whether OSHA compliance officers, focused on conventional workplace hazards, might dismiss too quickly any finding of reasonable suspicion where, for example, a machine guarding issue was detected on the same equipment involved in the injury-producing accident.  The presence of an alleged hazard does not mean the employee was not also impaired at the time of the accident and that the impairment may not have played a part in causing injury.

Then there is the matter of existing state testing laws.  Many states have passed them, often with the specific intention of reducing workplace injuries and workers’ compensation costs.  In Minnesota, for instance, which since 1987 has had a “mandatory” law applicable to any employment-related drug testing conducted in the state, reasonable suspicion testing, among other things, may be established where “the employee sustained a personal injury, as that term is defined [elsewhere in the law], or has caused another employee to sustain a personal injury,” or where an employee “has caused a work-related accident or was operating or helping to operate machinery, equipment or vehicles involving a work-related accident.” (Minn. Stat. §181.951(subd. 5)).  And in Florida, which has a “voluntary” drug testing law to which employers must adhere if they wish to benefit from a reduction in their workers compensation insurance premiums, reasonable suspicion also may be based upon “Information that an employee has caused, contributed to, or been involved in an accident while at work.”  (Fla. Stat. §440.102(1)(n)(5)).  A covered accident is not excluded because it happens to result in injury to the employee.

Does OSHA seek to undermine these “reasonable suspicion” testing laws, and others, in a professed effort to “protect the integrity” of its recordkeeping data, while increasing the risk that employees who are using drugs illegally or are impaired by alcohol will escape detection and continue to work, even after an accident has taken place resulting in harm?  (Not all post-accident testing is based on resulting injury.)

OSHA is accepting comments on its proposed rule, as supplemented, through October 14, 2014.  We will keep you advised of developments.

A “reasonable suspicion” drug test triggered by an employer’s discovery of apparent drug paraphernalia did not violate a public employee’s Fourth Amendment rights to be free from unreasonable searches and seizures, a court in Arkansas has held.  Brotherton v. Hill, No. 4:12-cv-534 (E.D Ark. Sept. 4, 2014).

Brotherton worked as a boiler operator at the Arkansas Health Center, a nursing facility of the Arkansas Department of Human Services.  The parties did not dispute that his job duties were dangerous.  Under the Center’s drug and alcohol testing policy, boiler operators were subject to random testing and reasonable suspicion testing.  Reasonable suspicion testing typically is conducted when there is reason to believe that an employee is or may be using drugs or alcohol, based on observations of the employee’s appearance, behavior, speech and breath or body odors.

In November 2011, a supervisor found a cigarette lighter next to an aluminum pie pan in the men’s restroom used by Brotherton and other employees.  Burnt brown residue was in the pie pan.  The supervisor notified the safety officer — a former narcotics officer with many years’ experience in law enforcement.  The safety officer suspected drug use.  Brotherton, and all other maintenance employees on duty at the time, immediately were subjected to drug testing, even though there was no individualized suspicion as to any one of them.

Although Brotherton apparently tested negative and was not subjected to any adverse employment action, he objected to the testing on the grounds that it violated his Fourth Amendment rights prohibiting unreasonable searches and seizures.  The Court disagreed and dismissed his claim, holding that the Center had a compelling interest in ensuring that Brotherton performed his safety-sensitive duties “with a clear mind” and that the intrusion into his legitimate expectation of privacy was minimal.  More specifically, the Court rejected Brotherton’s complaint that he was detained after work for an hour in order to take the drug test, causing him to miss an appointment, and also rejected his complaint that the safety officer yelled at him when he asked to leave to go to his appointment.  The Court stated that these complaints did not make the drug test unreasonable.  Additionally, the facts that other employees used the men’s room and that the brown material in the pie pan tested negative for drugs did not diminish the reasonableness of the employer’s suspicions.

A Tennessee auto glass manufacturer will get a new trial to prove that drug tests it administered to its employees – including tests for prescription medications — were not “medical examinations” or “disability-related inquiries” under the Americans with Disabilities Act.  Bates v. Dura Automotive Systems, Inc., No. 11-6088 (6th Cir. August 26, 2014). 

In May 2007, Dura conducted plant-wide drug tests of all employees at its Lawrenceburg, Tennessee facility.  The drug tests screened for twelve substances:  amphetamines, barbiturates, benzodiazepines, cocaine, Ecstasy, marijuana, methadone, methamphetamines, opiates, oxycodone, phencyclidine, and propoxyphene – some of which appear in prescription medications.  If an employee tested positive and produced a valid prescription, the Medical Review Officer changed the final test result from positive to negative.  Dura disregarded the MRO’s revisions, opting to prohibit any employee from using “machine-restricted” drugs, i.e., medications that were packaged with warnings about operating machinery.  Employees were told to stop using these medications or they would be terminated.  Several employees were terminated and filed suit, alleging violations of the Americans with Disabilities Act.  A jury found for all but one of the plaintiffs and awarded compensatory and punitive damages in excess of $870,000.  Dura moved for judgment as a matter of law or a new trial, among other things.  The District Court denied Dura’s motions.

The Sixth Circuit Court of Appeals vacated the District Court’s judgment and remanded for a new trial on the issue of whether Dura’s drug tests constituted medical examinations or disability-related inquiries.  The appellate court concluded that a reasonable jury could decide these issues either way.  Specifically, the court held that “the evidence shows that Dura abstained from asking plaintiffs about their medical conditions, and only one plaintiff suggested that Dura directly asked her to identify the medications she was taking, albeit with conflicting testimony.”  Moreover, the plaintiffs offered no evidence showing how the drug test results revealed information to Dura about plaintiffs’ medical conditions.  In the absence of specific evidence connecting the drug test results to specific medical conditions, the court declined to hold that the drug test results constituted medical examinations or disability-related inquiries.  The court noted, however, that there were credibility issues to be resolved, given Dura’s insistence that it was not interested in the plaintiffs’ medical conditions, while other evidence showed that some terminated employees provided doctor’s notes stating that their use of prescription medications did not affect their work performance.

At the new trial, the district court will instruct the jury to decide whether the drug tests were medical examinations or disability-related inquiries in accordance with the ADA’s statutory definitions, as well as the definitions set forth in the EEOC’s Enforcement Guidance:  Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) Part B.2 (July 27, 2000) and the EEOC’s Enforcement Guidance:  Preemployment Disability-Related Questions & Medical Examinations (Oct. 10, 1995).  In particular, the appellate court emphasized the “test design factor,” i.e., whether the test is designed to reveal an impairment or the employee’s health.  This issue is a fact-sensitive inquiry.

Employers who test for prescription medications should review this case and ensure that their testing protocols are not intended to elicit information about employees’ medical conditions.

A federal court in Minnesota has ruled that Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA), Minn. Stat. Sections 950-957, does not apply to employees who work or are applying to work outside the state of Minnesota.  Olson v. Push, Inc., No. 14-1163 (ADM/JJK) (D. Minn. Aug. 19, 2014).  In Olson, the plaintiff resided in Minnesota and accepted an offer of employment in West Virginia from Push, a Wisconsin-based company.  Push originally asked Olson to submit to drug testing at a clinic in Wisconsin.  For convenience purposes, however, it allowed him to be tested in Minnesota. Push determined that the drug test result was “too diluted” and terminated his employment.  Under DATWA, Olson would have had the right to a confirmatory test, and possibly treatment, before termination, as well as many other protections, so he brought a lawsuit challenging the termination of his employment.  Push argued that DATWA did not apply and moved to dismiss the complaint.

Olson pointed to the language of the statute, which defines “employee” as “a person . . . who performs services for compensation, in whatever form, for an employer.”  “Employer,” in turn, is defined as “as a person or entity located or doing business in this state and having one or more employees[.]”  Although Push conceded it did business in Minnesota, it argued that, in the absence of extra-territorial language, DATWA must be interpreted as governing only in-state activity.  The court agreed, noting the general presumption against the extra-territorial application of a state’s statutes, as well as the Commerce Clause of the U.S. Constitution. It held that it would be “unreasonable to construe the phrase ‘doing business in’ as a broad, stand-alone qualification that applies to any employer who conducts any amount of business in Minnesota, regardless of where the employment is taking place.”  Finally, the court noted that “although Olson’s interpretation of the definition of ’employer’ might appear facially sound, it invites absurd or unjust results when DATWA’s requirements are viewed as a whole.”

The decision is a rare bit of good news for employers who might be facing lawsuits under this strict Minnesota statute.

This November, voters in California will decide whether to mandate drug and alcohol testing for doctors in the Golden State.

Proposition 46 – formally known as “Drug And Alcohol Testing Of Doctors.  Medical Negligence Lawsuits.  Initiative Statute.” – will appear on the ballot in California’s upcoming elections.  If passed, hospitals operating in the State will be required to randomly drug test all doctors “who are employees or contractors [of the hospital] or who have the privilege to admit patients [at the hospital].”  The proposition mandates hospitals report the name of any doctor who receives a positive test result to the California Medical Board.  The Board then would be required to suspend the doctor pending a Board investigation into the positive test result.  Under the proposition, the Board would have no choice but to discipline any doctor it finds was impaired while on duty, though mandated substance abuse treatment as a condition of licensure is considered an acceptable form of discipline.

In addition to the drug and alcohol testing requirements, Proposition 46 imposes an obligation on hospitals to affirmatively report to the Board any doctor suspected of practicing medicine while impaired by drugs or alcohol.  It also requires doctors consult with state prescription databases before prescribing controlled substances to patients.

Proposition 46 would make California the first state in the nation to require drug testing of doctors.  Though studies suggest at least one in ten doctors will suffer from addiction at some point during their career, neither the American Medical Association nor any other state ever has required doctors undergo mandatory drug or alcohol testing.

According to a recent article by The New York Times, Proposition 46 has a number of high-profile supporters, including Representative Nancy Pelosi and Senator Barbara Boxer, both Democrats of California.  The California Chamber of Commerce, the California chapter of Planned Parenthood, the Committee of Interns and Residents-SEIU and the Union of American Physicians and Dentists-AFSCME Local 206 are among the opponents of the proposition, which also would increase the State’s cap on awards for medical malpractice damages.

The National Labor Relations Board has held that a supermarket chain violated the National Labor Relations Act by terminating an employee who refused to submit to a drug test without first consulting a union representative, affirming an April 2013 decision by its Administrative Law Judge.  Ralphs Grocery Co., 361 NLRB No. 9 (July 31, 2014).

Vittorio Razi, a produce manager represented by a union, was observed by supervisors to be acting in an agitated, anxious and nervous state.  Razi exhibited slurred speech, would not make eye contact, spoke rapidly and in an animated fashion, had difficulty using the company computer and struggled to kneel down to tie his shoes.  Based on these observations, the Store Director concluded Razi was under the influence of some type of substance and wanted to send him for a drug and alcohol test.  After being informed of this, Razi refused to submit to the test and subsequently was advised by the Store Director that his refusal to submit would be grounds for immediate termination.  At this point, Razi said he wanted to contact a union representative.   The Store Director told Razi that although he possessed no right to union representation, he would be allowed to try to contact a union representative anyway.  Razi was unable to reach a union representative and, after approximately ten to fifteen minutes, the Store Director again requested Razi’s submission to a test.  In spite of warnings from the Store Director that the refusal to submit to a test would result in Razi’s discharge from employment, Razi refused, was suspended, and ultimately, was terminated.  The employer explained that its action was based on Razi’s insubordination, and because the employee’s refusal to submit was deemed to be an automatic positive test result, also warranting discharge.

A three-member Board panel agreed with the ALJ’s finding, and the panel majority agreed with his make-whole remedy. The NLRB found that the reason for Razi’s suspension and discharge was “inextricably linked” to his assertion of Weingarten rights to union representation, rights that the Company had interfered with unlawfully.  Under NLRB v. J. Weingarten Inc., 420 U.S. 251, 88 LRRM 2689 (1975), an employee, upon request, has the right to have a union representative present during an employer’s investigatory interview where the employee reasonably believes it may result in disciplinary action.  The Board agreed with the ALJ that the Company took disciplinary action against Razi for refusing to take the drug and alcohol test, as ordered.

The Board rejected the Company’s argument that Razi’s refusal to take the drug and alcohol test constituted insubordination, as well as an automatic positive test result, warranting discipline.   “There is simply no way to divorce Razi’s refusal from his assertion of his Weingarten rights…,” the Board stated.  By relying on Razi’s refusal to take the test as a basis for discipline, the Respondent, it said, penalized Razi for refusing to waive his right to union representation, irrespective of whether it considered his refusal to be insubordination or an automatic positive test result.”

NLRB member Harry Johnson partially dissented from the Board’s decision, concluding that Razi was suspended and discharged because of the Company’s belief that Razi was intoxicated, and not as a result of hostility toward Razi’s request for union representation.  As a result, Johnson reasoned, the suspension and discharge were not unlawful and a make-whole remedy would be inappropriate.  Further, Johnson made the point (previously raised by this Blog – NLRB ALJ Stifles Drug Testing Process By Allowing Union Representation Before Test) that sobriety test results are time-sensitive.  Johnson noted the Company’s legitimate interest in moving forward with its investigation, citing the argument that the “exercise of Weingarten rights may not interfere with legitimate employer prerogatives.”  While the majority also allowed that the Company had such a valid interest, it made no attempt to reconcile this position with its decision.

The Board’s decision makes clear that Weingarten rights apply to unionized employees faced with for-cause drug tests.  Employers should ensure that these employees are able contact a union representative at the earliest possible time so as to obtain assistance while minimizing delay of any drug and alcohol tests to be performed.

The Maine Department of Labor announced July 29, 2014 that it seeks the input of Maine businesses and other organizations regarding the current state law governing drug and alcohol testing in the workplace.  Businesses interested in participating in the survey must contact the department to receive a survey invitation; invitations are limited to one per business or organization.

During the last legislative session, the department proposed LD 1669, “An Act To Standardize and Simplify the Process for Employers to Provide a Drug-free Workplace,” which did not pass; however, during the discussions, a number of issues were raised concerning drug testing in the workplace.  As a result, the department seeks feedback to formulate future changes to the law and its rules to address employer and employee concerns.  Governor Paul R. LePage stated:  “The department wants to make the right changes to ensure that employers and their customers, other employees and equipment are protected from dangerous situations.  This survey will help them do that.  I encourage all employers, whether they drug test or not, to participate in this survey.”

The department has solicited participation in the survey from all employers with approved drug testing policies, insurance providers and organizations with a relationship to the issue, including medical marijuana organizations and providers.  Those interested in taking the survey should e-mail Mark Dawson, mark.dawson@maine.gov, in the Maine Bureau of Labor Standards.  The online survey takes about 30 minutes to answer.  It asks questions about different provisions of the law and asks for suggested changes.  The survey will be available online through August 15, 2014.

Maine’s drug testing law differs from most other state drug testing laws because:  it requires employers to obtain approval of their written testing policies from the state department of labor before any testing may be conducted (and, employers are required to obtain employee “feedback” before submitting the policy for approval); it requires employers with 20 or more employees to have a state-certified Employee Assistance Program; it fully exempts employers who have any employees subject to federal drug testing regulations; post-accident testing is prohibited after a first work-related accident; and, employers with 20 or more employees are required to split the cost of substance abuse rehabilitation with an employee who has tested positive (unless the costs are covered by a group health insurance plan).  The Maine drug testing law also has very severe civil penalties and remedies for violations of the law.

The Governor of New York signed on July 7 New York’s Compassionate Care Act, which will permit limited use of medical marijuana by individuals suffering from covered medical conditions, making New York the 23rd state to legalize the use of medical marijuana.

Under the law, no more than five private organizations in the state will be licensed for the production and distribution of medical marijuana through up to four regulated dispensaries per organization.  The dispensaries must be wholly owned and operated by such licensed organization.  Additionally, in order to obtain and maintain its certification, each organization must enter into a labor peace agreement with a bona fide labor organization representing its employees.

Of relevance to employers, New York is one of only a few states that deems covered individuals (“certified patients”) to be “disabled” categorically under the state human rights laws.  To be covered, individuals must suffer from a “serious condition,” defined currently as having one of the following “severe debilitating or life-threatening conditions” (which the legislature has concluded is likely to respond favorably to the therapeutic or palliative benefits of marijuana):

  • cancer
  • HIV/AIDS
  • amyotrophic lateral sclerosis (ALS)
  • Parkinson’s disease
  • multiple sclerosis (MS)
  • damage to the nervous tissue of the spinal cord with      neurological indications of intractable spasticity
  • epilepsy
  • inflammatory bowel disease
  • neuropathies
  • Huntington’s disease

Individuals must be experiencing specific symptoms of a covered condition in order to be deemed to have a “serious condition.”  Individuals deemed to be “certified patients” (or their designated caregivers) can obtain a maximum of 30 days’ supply of marijuana (in a dosage determined by agency rulemaking or a certified physician) at a time, with refills permitted one week before the supply runs out.  Marijuana can only be possessed in its original packaging (except when being used), and it cannot be smoked, consumed, vaporized, or grown in a public place. Moreover, smoking is not considered a certified or lawful medical use under any circumstances.

While the law is effective immediately, the New York State Department of Health must promulgate regulations and has been given up to 18 months to issue or make effective registry identification cards for certified patients and designated caregivers, which will be necessary for obtaining medical marijuana.

The law does not prohibit employers from creating or enforcing existing policies that prohibit employees from performing their employment duties while impaired by medical marijuana, and it is not intended to result in violation of federal law or cause an employer’s federal contracts or funding to be jeopardized.  Nevertheless, the law will create challenges for employers as it relates to drug testing policies since it is unclear whether an employer must excuse or accommodate a positive drug test where the employee is a certified patient taking marijuana in approved forms.  Additionally, because covered patients are deemed “disabled” under the Human Rights Law, employers may need to engage in an interactive process with employees who reveal medical marijuana use to discuss potential accommodations.

A federal appeals court has upheld the dismissal of a commercial motor vehicle driver’s claims that his employer violated the Americans With Disabilities Act and the Family and Medical Leave Act when it fired him after learning of his alcoholism.  Sakari Jarvela v. Crete Carrier Corporation, Case No. 13-11601 (11th Cir. June 18, 2014).

The Department of Transportation’s (“DOT”) Federal Motor Carrier Safety Administration’s (“FMCSA”) regulations prohibit anyone with a “current clinical diagnosis of alcoholism” from driving commercial motor vehicles.  49 C.F.R. § 391.41(b)(13).  In addition, Crete had a company policy prohibiting the employment of anyone as a commercial motor vehicle driver if he or she had been diagnosed with alcoholism in the past five years.

Jarvela worked for Crete for several years before he was diagnosed with alcoholism in 2010 and sought leave to obtain treatment.  His request for FMLA leave was approved.  After being out of work for approximately one month, Jarvela sought to return to work.  Crete decided that Jarvela was no longer qualified to be a commercial motor vehicle driver, pursuant to FMCSA regulations and company policy.  His employment was terminated.

Jarvela asserted claims under the ADA and FMLA, arguing that Crete discriminated against him due to his disability – alcoholism—and that the Company interfered with his FMLA rights and retaliated against him for exercising his FMLA rights.  The lower court disagreed and granted summary judgment to Crete.  The appellate court affirmed.

First, the appellate court held that Jarvela was not a “qualified individual” under the ADA because he was not physically qualified to drive under FMCSA regulations.  The Court observed that it is the employer’s burden to ensure that a driver meets all FMCSA physical qualification standards.  49 C.F.R. § 391.11(a).  Because FMCSA does not permit anyone with a “current clinical diagnosis of alcoholism” to drive, the employer must determine whether someone suffers from such a diagnosis.  Crete determined that Jarvela was not physically qualified to drive a commercial motor vehicle and neither the lower court nor the appellate court found fault with that conclusion.

The appellate court also upheld the dismissal of the FMLA interference and retaliation claims.  Jarvela’s FMLA interference claim failed because he would have been discharged regardless of whether he took FMLA leave.  The retaliation claim failed because he could not show that his termination was related to his FMLA leave.

This case is important to DOT-regulated employers, as it shows that the courts will uphold an employer’s judgment concerning a driver’s physical qualifications to drive a commercial motor vehicle.