Our colleague Michael Soltis at the Disability, Leave & Health Management Blog reports on efforts to legalize the recreational use of marijuana in such states as Alaska, Arizona, Maine, Massachusetts, Montana, and New Hampshire:  Reefer Madness? More States Likely to Legalize Recreational Marijuana; More Challenges for Employers

Famous third baseman Alex Rodriguez is suing over an arbitration decision suspending him from major league baseball for the entire 2014 season for using performance-enhancing drugs. His chances of overturning the arbitration award are examined by our colleagues Steven S. Goodman, Gregg E. Clifton, and Philip B. Rosen in this article: A-Rod: A Tough Road to Hoe in Contesting Arbitrator’s Suspension

The first law in the nation to require the widespread drug testing of health care employees may be on its way to passage, as the New Hampshire House of Representatives has passed by a vote of 289-48, without debate, “An Act relative to the drug-free workplaces for licensed health care facilities and providers,” on January 22.  It seeks to foster the safety and protection of patients and health care workers “by promoting and maintaining a substance-free work environment and discouraging the illegal use and diversion of controlled substances by health care workers.” 

The measure (H.B. 597-FN) would mandate that licensed entities establish “procedures for drug testing which shall include, at a minimum, testing where reasonable suspicion exists,” as part of a broader “drug misuse and diversion prevention policy” providing for the “prevention, detection, and resolution of controlled substance abuse, misuse and diversion.” The policy would apply to “employees, contractors, and agents of the facility who provide direct or hands on care to clients when acting within the scope of their employment or representation”; the facility would have to designate an employee or interdisciplinary team of employees to be responsible for the policy.  Random testing would have been required in the original version of the bill. 

The bill is intended to offer flexibility to health care facilities and providers “to develop and adopt a workplace standard appropriate to its size, the nature of the services provided, and its particular setting.”  Nevertheless, in addition to drug testing, the bill specifies that substance abuse policies shall include the education of health care workers, , procedures for monitoring the storage, distribution and procurement of inventory if controlled substances are stored, dispensed or administered “at the health care setting,” procedures for voluntary self-referral by addicted employees, procedures for co-worker reporting, procedures for employee assistance, provisions for confidentiality, a process for investigation, reporting, and resolution of drug misuse or diversion, and consequences for violation of the policy. Laboratories and collection stations are exempted. 

The proposed law does not define “reasonable suspicion,” unlike some drug testing laws elsewhere.  (The DOT Federal Motor Carrier Safety Administration’s rules, governing the testing of millions of CDL drivers, and which are sometimes used as a benchmark for non-regulated substance abuse testing policies, suggest that reasonable suspicion may involve suspected policy violations based on “specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors” of the worker.  The federal rules also require that supervisors and managers who make reasonable suspicion determinations be trained to recognize the signs of possible substance abuse.) 

The bill reportedly follows a Hep C outbreak where a travelling radiology technician stole syringes containing a narcotic painkiller intended for hospital patients with which he injected himself, then refilled the syringes with saline to be used on the patients, knowing he was infected with the pathogen.  The technician was convicted and sentenced recently to prison.

The Colorado Supreme Court agreed on January 27, 2014 to review a case holding that an employer did not violate the state’s “legal activities” law when it dismissed an employee who used “medical marijuana” while off duty.  Coats v. Dish Network, No. 13SC394 (CO. Jan. 27, 2014).  For a detailed discussion of the facts of the case and the appellate court’s decision, see the article on our website, Colorado Court Rules Use of ‘Medical Marijuana’ Not ‘Lawful’ under State’s ‘Legal Activities’ Law. 

The Colorado Supreme Court will review two issues in the case:  (1) whether the state’s Lawful Activities law protects employees from discretionary discharge for lawful use of medical marijuana outside the job where the use does not affect job performance; and, (2) whether the state’s Medical Marijuana law makes the use of medical marijuana “lawful” and confers a right to use medical marijuana to persons lawfully registered within the state.

Minnesota has a uniquely complicated statute governing drug and alcohol testing in the workplace. Minn. Stat. Section 181.950-957.  The statute can be a surprise for out of state employers with employees in Minnesota, as well as Minnesota-based companies. And non-compliance can be expensive. Employees who are tested in violation of the statutory requirements can potentially seek damages for lost wages, emotional distress, punitive damages and attorneys’ fees.  Here are the top ten ways employers run into trouble:

  1. Testing an employee or applicant without any drug and alcohol testing policy.
  2. Firing an employee after testing positive without allowing the employee to first seek and complete treatment.
  3. Disclosing the results of a drug or alcohol test to persons without a need to know. (Breach of confidentiality)
  4. Testing an applicant before making the decision to hire (and then not hiring the applicant although they passed the test)
  5. Not complying with technical notice and posting requirements (i.e. right to confirmatory retest, right to request copy of lab results, posting a notice of the policy in the workplace)
  6. Not setting parameters on treatment and return to work.
  7. Applying federal drug testing requirements and procedures for commercial drivers to non-drivers, and vice-versa.
  8. Testing an employee in an arbitrary and capricious manner without reasonable suspicion.
  9. Testing an employee or applicant without a Minnesota-compliant drug and alcohol testing policy, and not keeping a signed acknowledgment.
  10. Performing testing on site, using breath tests, or charging the employee for the test.
  11. Bonus: Testing an employee after admitted possession or use of illegal drugs instead of moving straight to termination.

There are many ways to run in trouble when drug or alcohol testing in the workplace in Minnesota, so be careful!

A Texas state  appeals court has ruled employers are not required to protect their intoxicated employees from injury or death, provided the employer played no role in the employee’s intoxication.  Clark v. EOG Resources Inc., 12-CV-00262 (Tex. App. Houston 1st Dist. Jan. 7, 2014).

Robbie Lynn Clark, an employee of a contractor for EOG Resources, Inc., was killed in a fatal car crash while driving a Company truck back to work after his lunch break.  Toxicology reports indicated Clark was intoxicated, with a blood alcohol reading of over 4 times the legal limit.   Following the accident, Clark’s family sued EOG for negligence and wrongful death, claiming EOG failed to enforce its policy prohibiting drinking while on the job and negligently failed to investigate whether Clark had a history of driving while intoxicated before allowing him to drive a Company vehicle.

Clark, who had a long history of driving while intoxicated, was hired by a contractor for EOG two weeks after he was released from prison for his fourth DWI conviction.  He submitted a driving record report with his application, but the report (which was labeled as “for insurance purposes only”) only included three years of driving history.  As Clark’s most recent DWI conviction was 6 years earlier, it did not show up on the report.

Six months after he began working with EOG, Clark was arrested again for driving while intoxicated and his license was suspended.  Clark failed to report the conviction to EOG, however, and continued to drive without a license.  He died ten months later.

The lawsuit alleged EOG had a duty to closely scrutinize Clark’s employment history before allowing him to drive a Company vehicle.  Had EOG done so, according to Clark’s family, it might have discovered  in Clark’s employment as a result of serving prison sentences for his DWI convictions.  The suit further alleged that EOG failed to adequately enforce its own policy prohibiting drinking on the job.

The trial court dismissed the case on a motion for summary judgment.  It found EOG did not have any control over Clark’s decision to drink and drive.  The appeals court affirmed.  Though the court recognized that Texas case law has found employers can be liable, under certain circumstances, to third parties injured in a car crash by an intoxicated employee, it found no such liability existed here.  Absent a showing that EOG knowingly exerted control over an intoxicated Clark or encouraged or required him to consume alcohol while at work, as an employer it did not “owe a duty to prevent [an] employee from injuring himself through his own intoxicated driving of a company vehicle during a lunch break.”

A U.S. District Court in Florida has released a decision, involving a public employer, instructive for private employers who rely on “reasonable suspicion” to drug test employees. An employer must have individualized, articulable, and objective ground for suspecting an employee has violated a substance abuse policy. Personal animosity should not be a basis. Hudson v. City of Riviera Beach, et al., is discussed in detail at City Employee Properly Alleged Fourth Amendment Violation for Unreasonable Search and Seizure by Ordering Drug Test Based on Personal Animosity.

 

Considering when a drug test by a public employer may constitute an “unreasonable” search for Fourth Amendment purposes, a U.S. District Court in Florida also has shed light on private sector substance abuse testing that could lack “reasonable suspicion” or “cause.”  There was no factual record on which the court relied.  Hudson v. City of Riviera Beach, et al., S.D. Fla. Case No. 12-80870-cv- Rosenbaum/Hunt (November 13, 2013).  Since the decision was based on a motion to dismiss the aggrieved employee’s amended complaint, the court’s discussion, summarized below, addressed only the employee’s pleading allegations.

Plaintiff Michael Hudson was a multi-media specialist for the City of Riviera Beach, Florida.  As a result of Hudson’s dispute with Troy Perry, the City’s Fire Chief (and later Assistant City Manager), Troy unsuccessfully sought to have Hudson reprimanded.  Allegedly angered over his inability to get this done, Troy was said to have enlisted the help of his mother, the City’s Human Resources Director (“Perry”), who directed Hudson to submit to three different drug and alcohol tests.  Hudson said he was advised he would be fired if he refused.  He submitted to a breathalyzer test, urine test and a hair sample test.  However, when Hudson allegedly asked Perry to explain the reasonable suspicion for the testing and requested that she provide him with any supporting documents, Perry assertedly became infuriated.  “It does not work like that,” she is claimed to have retorted.  “[T]here are no records[.]  I don’t have to give you anything.”  When Hudson assertedly showed her the Florida Drug Free Workplace Act, according to the Amended Complaint, Perry taunted, “[I]f I did breach the law[,] what are you going to do about it?”

Hudson asserts he then took his complaint to the then-Interim City Manager, who allegedly said Perry should provide Hudson with copies of the documents he had sought.  When Hudson told Perry of this, she allegedly responded by saying she had no records, but that if Hudson returned with a written records request, she would provide her with a report.  Within an hour, Hudson was back with a request, he claims, but Perry did not provide any records at the time and instead told him angrily that she had 24 hours to respond to his request and would respond within that time.

The next day, Hudson avers, Perry provided him with a one-paragraph explanation for the testing directive.  It said that she had “received several complaints from the employees,” the latest received four days before she had directed the tests, “alleging [Hudson’s] eyes were glassy and he smelled like marijuana.”  However, the explanation did not identify the employees who made the alleged complaints and Perry allegedly stated later she could not recall who they were and could not even remember their gender.  Neither did Perry advise her immediate supervisor of these complaints, it was claimed.  During a later unemployment appeal hearing and deposition, the amended complaint avers that Perry contradicted her earlier explanation and instead said she had tested Hudson “on a whim[,] a mere hunch,” and said she had been determining who to drug test in that manner “for years.”

Meanwhile, Hudson’s urinalysis drug test allegedly came back negative.  Hudson called the laboratory, which had administered the test, to advise them of the circumstances under which the tests had been directed.  The laboratory reportedly informed Hudson that he had a right under the Health Insurance Portability & Accountability Act (HIPAA) to revoke permission to disclose his test results as protected health information to the extent the results had not yet been returned.  Hudson claims he then sent a letter to the laboratory revoking permission to disclose his protected health information until all administrative or legal matters were resolved.  Accordingly, test results on Hudson’s hair sample were not provided by the laboratory to the City.

Hudson says he then wrote to the Interim City Manager asking her to direct Perry to end all inquiries about the drug testing she (Perry) had ordered Hudson to undergo.  The Interim City Manager did not do so.  Instead, under what Hudson characterized as a “new unapproved clause” that the City, City officials, and the City’s attorneys purportedly created and added to the collective bargaining agreement, the defendants suspended and then terminated Hudson’s employment.  Hudson claimed that the City suspended him in retaliation for his refusal to release the results of his hair sample test.  Hudson undertook administrative appeals of his dismissal, but maintained they were unfair; the results, he said, were not valid.

Hudson’s amended court complaint alleged Perry violated the Fourth Amendment.  He claimed the tests Perry ordered him to take constituted an unreasonable search.  While constitutional claims generally do not lie against private employers, the court’s discussion of the Amendment may be instructive for private employers whose substance abuse policies also provide for reasonable suspicion testing.

The court began by noting that neither side appeared to dispute that drug testing constituted a search within the meaning of the Fourth Amendment (although it noted that, unlike breath and urine tests, the status of hair sample testing as a Fourth Amendment search was less clear).  For such a search to be reasonable, it said, it must be based on “individualized suspicion of wrongdoing.”  While there is no fixed threshold, intrusions on protected privacy interests of government employees for non-investigatory, work-related purposes, as well as for investigation of work-related misconduct, were to be “judged by an amorphous standard of reasonableness.”  To make this determination, courts look at whether the search was “justified at its inception” and was “reasonable in scope.”  This determination requires balancing the employee’s privacy interests against “the government’s need [as an employer] for supervision, control and efficient operation of the workplace.”

The court concluded that Hudson alleged a Fourth Amendment violation by Perry.  According to the Amended Complaint, Perry directed Hudson to submit to the drug test because she received several complaints from employees that Hudson’s “eyes were glassy’ and that he “smelled like marijuana,” but later, it was alleged, Perry could not recall who her anonymous source(s) were or whether the source(s) were male or female.  Hudson asserted that Perry’s supposed reasons for testing him were fabricated.  This argument, he contended, was supported by his further allegation that during an administrative hearing on his discipline Perry said she tested Hudson on a mere ‘hunch,” and that she frequently tested employees based on her gut feeling.  Hudson further averred that Perry never personally corroborated any of the allegations from her purported sources.  “Even more significantly,” the court added, “are the allegations underlying Hudson’s contention that Perry’s decision was motivated by personal animosity.”  Indeed, according to the amended complaint, when Perry’s son, Troy, unsuccessfully sought to have Hudson reprimanded after the two had disagreed, he allegedly warned Hudson that “this” was “not over”, and Perry ordered Hudson’s drug test shortly thereafter.  In Hudson’s view, this demonstrated Perry acted out of malice.  This was especially true, he contended, because Perry was not Hudson’s direct supervisor and Perry did not consult with Hudson’s supervisor before ordering the drug tests.  (The amended complaint also contained allegations that Hudson consistently received “excellent” evaluations, had never been reprimanded or disciplined in his four years of City employment, did not work in a safety-sensitive position or perform safety-sensitive duties, and that neither Perry nor anyone in her department worked at Hudson’s location or had any interaction with him; in fact, they worked in an office three miles away.)

The court found, “The allegations in the Amended Complaint plausibly lend themselves to a conclusion that the drug test was unreasonable from its inception.”  While the Fourth Amendment may not impose any set level of individualized suspicion, the court said, “where, as here, Hudson’s job does not justify suspicionless drug-testing [because it was not safety-sensitive] some, suspicion is required.”  The allegations suggested that Hudson’s testing was directed only in furtherance of a vendetta, a “purely private and spiteful motivation [that] epitomizes precisely the type of governmental intrusion against which the Fourth Amendment was intended to protect,” it reasoned.  Therefore, the Court found Hudson had sufficiently stated a Fourth Amendment claim against Perry.

The case is instructive for private employers, as well, who rely on “reasonable suspicion” to test employees, especially where state constitutions or statutes affect such testing.  An employer generally should be able to point to some individualized, articulable, and objective ground for suspecting an employee has violated a substance abuse policy, preferably based on direct observation by a knowledgeable manager, and if appropriate, upon consultation with other management personnel.  In the private sector, too, changing explanations for finding suspicion, and reliance on “hunches” and even an asserted practice of testing on such a ground, may undermine an employer’s assertion of reasonable suspicion, and raise triable issues of discrimination, retaliation or other violation of law.  Witnesses to the behavior forming the basis for suspicion of drug abuse or alcohol misuse must be identified and interviewed, and may have to testify, if the test is challenged.  They should be credible if any reliance is to be placed on their accounts.  Managers and supervisors charged with enforcing a substance abuse policy and enforcing its provisions should be instructed on the employer’s substance abuse policy, the signs and symptoms of drug abuse and alcohol misuse, and the benefits of consulting with knowledgeable managers before making a final determination that reasonable suspicion exists to test an employer for drugs.

An administrative assistant’s belief that her employer asked her to engage in unethical conduct in dealing with company drug testing and alcohol abuse incidents did not give her good reason to quit her job or receive unemployment benefits, a Minnesota court has held.  That (a) the employee may have felt uncomfortable because the plant manager told her to reschedule an applicant’s pre-employment physical, including a drug test for a later date (to “stretch out the time”) after the applicant (whom the plant manager evidently wanted to hire) reportedly told the administrative assistant he had used marijuana, and (b) she regarded as “unethical” her discovery that another employee’s time (1.5 hours) was approved for payment on a day that employee had been sent home early, after reporting to work intoxicated (the same employee, she had been told, also showed up intoxicated the week before), and did not warrant her resignation from work.

Noting that the administrative assistant had reported these incidents, and even asked that a memo be placed in her personnel file noting her objection to the postponed drug test (which she had rescheduled), the court an found an average, reasonable employee would not be compelled to quit and become unemployed in these circumstances.  As to the rescheduled drug testing, not only did the Company comply with her request for remedial action, but it never asked her to “stretch out” any other pre-employment drug tests.  Her dissatisfaction in this instance did not constitute good reason to quit, the court said.  Likewise, the Company’s decision to pay the reportedly inebriated employee did not constitute good cause for her to quit, even if the administrative assistant thought the employer showed poor judgment in doing so, and may have had a good “personal reason” for quitting.  What she found morally objectionable, however, did “not necessarily equate to good cause attributable to the employer.”  Grosland v. Smith Companies LLC, 2013 Minn. App. Unpub. LEXIS 1132 (Minn. Ct. of App., No. A13-0572, December 23, 2013).

 

A health care clinic did not breach the implied covenant of good faith and fair dealing under Alaska law for terminating an employee for allegedly falsifying prescription drug records, the Alaska Supreme Court has ruled. Beach v. Handforth-Kome, No. 6845 (Alaska Nov. 29, 2013). For details, please see Employer Properly Terminated Employee for Falsifying Prescription Records, Alaska High Court Rules.