Pre-offer drug tests to determine the use of both legal and illegal drugs violated the Americans with Disabilities Act’s prohibition on pre-offer medical inquiries, a federal court in Pennsylvania held on March 6, 2014.  EEOC v. Grane Healthcare Co. and Ebensburg Care Center, LLC, d/b/a Cambria Care Center, CV No. 3:10-250 (W. Dist. Pa. Mar. 6, 2014).

Defendants conducted pre-offer medical examinations along with drug tests.  Although the purpose of the drug tests was to determine illegal drug use (which is permissible under the ADA), four applicants who tested positive testified that their positive drug test results were due to the use of lawful prescription medications.  The EEOC argued that the pre-offer drug tests violated the ADA because the tests of the applicants’ urine specimens constituted a “medical examination” that elicited medical information about the applicants, even if the tests only were intended to detect evidence of illegal drug use.  Such “medical examinations” are impermissible at the pre-offer stage.

The Court held that the tests in this case clearly qualified as medical examinations under the ADA, particularly because each applicant’s urine specimen was tested not only for drugs but for other medical purposes – such as for glucose.  For this reason, the drug tests did not fall within the ADA’s exception for tests “to determine the illegal use of drugs.”

Employers are reminded that all pre-employment drug tests should be conducted post-offer.  Even if urine drug screens are conducted separately from other pre-employment medical examinations, there is always the possibility that an applicant might test positive due to the use of lawful prescription medications.  At the pre-offer stage, employers may not obtain or discuss such information with applicants because it could elicit information about an applicant’s medical condition.

A bill introduced February 18, 2014 in the U.S. House of Representatives would require registered manufacturers and distributors of controlled substances identified under the Controlled Substances Act to perform criminal background checks and drug testing for employees with access to controlled substances.

The measure, “Ensuring Patient Access and Effective Drug Enforcement Act of 2013” (H.R. 4069), introduced by Rep. Tom Marino (R-PA), and co-sponsored by Rep. Marsha Blackburn (R-TN), reportedly with backing from the National Community Pharmacists Association, the Health Distribution Management Association, and the National Association of Chain Drug Stores, would require registrants, as a condition of registration, “(A) to obtain a criminal background check on each of the registrant’s employees who has or will have access to facility areas where controlled substances under the registrant’s possession or control are stored, such as a cage, vault, or safe; and (B) to perform drug testing on each such employee in accordance with the Federal and State law.”   (See Zachary Brennan, “New US House bill would require drug testing for pharma employees,” in-Pharma Technologist.com, William Read Media SAS, 26 Feb. 2014.)  The background checks would have to be conducted at least every two years, and upon hire, once the bill was enacted.  “Drug testing,” according to the proposal, “means testing designed to detect the illegal use of a controlled substance.”  Civil penalty provisions for failing to comply with the new mandates are included in the law.  The Attorney General would have authority to issue regulations and guidelines to carry out the amendments.

The bill also establishes the “Combating Prescription Drug Abuse Working Group,” a panel composed of government, pharma, drug wholesalers and retailers, health care industry and benefit plan representatives with broad mandate to further the measure’s aim of combating prescription drug abuse and diversion by creating a “more collaborative partnership between drug manufacturers, wholesalers, retail pharmacies and federal enforcement and oversight agencies,” http://www.in-pharmatechnologist.com reports.  It should also help protect consumers against disruption in the prescription drug supply chain, its sponsors maintain.

The bill’s reference to testing “in accordance with Federal and State laws” is not altogether clear.  No laws require the testing of such employees generally, so it appears this phrase refers to legal limitations on the types of tests that may be conducted and the testing procedures involved.  Such questions presumably would be answered in regulations following enactment.

The bill has been referred to the House Energy and Commerce, and Judiciary Committees.

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration announced February 12, 2014 a proposed rule to establish a federal Clearinghouse of drug and alcohol test result information for holders of commercial drivers’ licenses.  The primary purpose of the Clearinghouse is to assist FMCSA-regulated employers in screening applicants during the hiring process.  Under current law, prospective employers are required to obtain information about the applicant’s drug and alcohol test history directly from the applicant as well as the applicant’s former employers, to the extent that the applicant discloses them.  The clearinghouse was mandated by the Moving Ahead For Progress in the 21st Century Act, signed into law in July 2012.

The proposed rule would impose a number of requirements on FMCSA-regulated motor carrier employers, Medical Review Officers, Substance Abuse Professionals, consortia/third party administrators and laboratories supporting U.S. Department of Transportation testing programs, such as:

1.  FMCSA-regulated motor carrier employers:  Employers may not hire drivers without first conducting a search of the Clearinghouse for drug and alcohol violations.  After hire, employers must conduct annual searches of drivers’ drug and alcohol test result histories using the Clearinghouse.  In addition, employers must report to the Clearinghouse drivers’ positive, adulterated and substituted drug test results, positive alcohol test results, refusals to test, negative return-to-duty tests, reports of completion of follow-up testing, SAP reports and traffic citations for driving while under the influence of drugs or alcohol.  Employers also must modify their written substance abuse policies to notify drivers that such information will be reported to the Clearinghouse.

2.  Drivers:  Holders of commercial drivers’ licenses must notify, in writing, all of his or her employers if he or she violates DOT’s or FMCSA’s drug and alcohol testing regulations.

3.  Medical Review Officers:  MROs must report to the Clearinghouse within one business day all verified positive, adulterated, or substituted drug test results and refusals to test that require a determination by the MRO.

4.  Substance Abuse Professionals:  SAPs must report to the Clearinghouse information about drivers who begin and complete the return-to-duty process (required by DOT regulations when a driver violates certain drug or alcohol testing regulations).

5.  Laboratories:  Laboratories supporting DOT drug testing programs will be required to submit an annual, aggregate statistical summary of test results for each motor carrier for which the laboratory performs DOT required testing services.

6.  Consortia/Third Party Administrators:  C/TPAs acting on behalf of an employer who employs himself/herself must report to the Clearinghouse positive alcohol test results, negative return-to-duty tests, refusals to test, and reports that drivers have successfully completed all follow-up tests.

The proposed rule also contains provisions addressing who may access the Clearinghouse and the conditions under which the Clearinghouse may be accessed; a dispute resolution procedure to remedy administrative errors in a driver’s Clearinghouse record; fees to be collected by FMCSA from users of the Clearinghouse; and, proposed civil and criminal penalties for violations of Clearinghouse regulations.

Those who wish to submit comments on the proposed rule must do so within 60 days of the proposed rule’s publication in the Federal Register.

A federal appeals court held on February 14, 2014 that an employer did not retaliate against an employee when it discharged him for refusing to submit to a drug test after he initiated the filing of a workers’ compensation claim.  Phillips v. Continental Tire The Americas, LLC, No. 13-2199 (7th Cir. Feb. 14, 2014).

Phillips was required to submit to a drug test after stating his intention to file a workers’ compensation claim.  The Company’s written substance abuse policy required drug testing upon initiation of a workers’ compensation claim, among other circumstances.  The policy also provided that refusing to test was grounds for termination.  Phillips was informed that he had to submit to a drug test before he could submit his workers’ compensation claim.  He refused because he did not think that drug testing should be a consequence of filing a workers’ compensation claim.  His employment was terminated.

Phillips filed an action alleging retaliatory discharge.  To prevail, he needed to prove that his discharge was causally related to his pursuit of a workers’ compensation claim.  The lower court held that he could not do so, and the appellate court agreed.  It was undisputed that Phillips was discharged because he refused to submit to a drug test, not because he filed a workers’ compensation claim.  Moreover, the Company terminated other employees who refused to test, and did not discharge other employees who filed workers’ compensation claims.

Phillips further argued that the Company’s drug testing policy discouraged employees from filing workers’ compensation claims.  However, Phillips could not identify one employee who was discouraged from filing a workers’ compensation claim due to the drug testing requirement.  Additionally, the court noted that this discouragement argument was in tension with the Illinois Workers’ Compensation Act, which expressly contemplates drug and alcohol testing in connection with workers’ compensation claims.  Moreover, workplace drug testing is not against Illinois public policy, because the state’s medical marijuana law and its Human Rights Law both provide that employers may adopt and enforce drug testing policies.

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.”