The United States Department of Transportation (“DOT”)’s Office of Drug and Alcohol Policy and Compliance announced on December 5, 2013 the annual minimum drug and alcohol random testing rates for 2014 for employers regulated by each DOT operating agency:                                                                         

Employers subject to more than one DOT Agency drug and alcohol testing rule may continue to combine covered employees into a single random selection pool, as long as they test at or above the highest minimum annual random testing rates established by the DOT Agencies under whose jurisdiction they fall.

Millions of truck drivers subject to the Department of Transportation’s Federal Motor Carrier Safety Administration drug and alcohol testing regulations may be subject to hair testing for alleged drugs in addition to the urine testing currently authorized under the FMCSA rules, if recently proposed federal legislation is enacted. Relying on the results obtained by Arkansas-based J.B. Hunt Transport Services, Inc., which has been using hair testing in its drug screening procedures for over seven years, Rep. Rick Crawford (R.-AR.) and Senator Mark Pryor (D.-AR.) and others, introduced bills in both houses, entitled the ‘Drug Free Commercial Driver Act of 2013” (S. 1625; H.R. 3403) : (Senate Bill 1625) to allow motor carriers to conduct hair testing for drugs, as an alternative to urine testing, for certain DOT-required drug tests.

J.B. Hunt reported that by using hair testing for pre-employment drug tests the company had rejected more than 3200 prospective drivers between May 2006 and February 2013. Meanwhile, only 90 applicants failed urine tests required by federal regulations, the company said. J.B. Hunt reportedly regards hair testing as superior to urine testing for pre-employment purposes. The bills would permit, but not require, truckers to use hair tests for pre-employment and random drug testing of drivers, instead of urine tests.

Hair testing can detect drugs used within the past 90 days, while urinalysis testing has a much shorter look-back period. (Hair testing, however, may not detect very recent use. Accordingly, while it may be suitable for pre-employment and random testing, it generally is avoided for reasonable suspicion or post-accident drug testing.)

“This is all about trying to create a safe environment in the industry,” Rep. Crawford explained, as reported by the Arkansas Democrat-Gazette on October 31, since it helps identify “chronic drug users instead of relying on a two or three day snapshot.” Sen. Prior added that “right now, our companies are saddled with duplicate drug-testing procedures that are wasting time and money,” referring to DOT’s refusal to accept any drug testing other than urinalysis under its testing regulations for transportation employees.

Various industry groups, including the American Trucking Association, reportedly have voiced support for hair testing, although the owner-operator Independent Driver Association opposes the method, claiming it is too costly, discriminates against certain ethnicities, and is not relevant to random testing.

The bills were referred to the committee responsible for transportation in each chamber.

Michigan’s new drug testing disqualification law (Act No. 146 of 2013) amending the state’s “Employment Security Act” (MCL 421.129), provides that for one year after the enactment’s effective date (October 29, 2013), an individual will be considered to have refused an offer of suitable work if the prospective employer administers pre-employment drug tests on a non-discriminatory basis and the applicant tests positive for a controlled substance without a valid prescription, or the individual refuses without good cause to submit to the drug test. This pilot program does not require businesses to notify the state when job applicants fail a drug test or refuse to take them, but if they do, applicants whose conditional offer of employment has been withdrawn as a result will lose their unemployment checks.

The new law may draw some statistical support from the most recent National Survey on Drug Use and Health,. As noted by CNN Money.com, according to the 2012 Survey, about one in six (17%) unemployed workers had a substance abuse disorder, almost twice the rate for full-time workers (9%), based on self-reporting; the actual numbers could be higher. Moreover, CNN Money also reports that economists at the Federal Reserve Bank in St. Louis have pointed to some data that may show that long bouts of unemployment lead people to substance abuse, even among those who previously were drug-free, despite the loss of income from being out of work. (Alcohol, however, remains the largest substance of abuse among the unemployed according to the Survey.)

 

Quest Diagnostics’ 25th Anniversary Drug Testing Index reports a deep drop in drug use among American workers in the quarter century the Index has been published.  Based on over 125 urinalysis drug tests, the laboratory network and provider of diagnostic information said use had plummeted 75% since its data assessment initiative began shortly after passage of the 1988 federal Drug Free Workplace Act through 2012.  Among the more significant findings announced by Quest on November 18: 

  • “The positivity rate for the combined U.S. Workforce dropped from 13.6% in 1988 to 3.5% in 2012 (74%).
  • The positivity rate for the Federally Mandated Safety-Sensitive Workforce declined by 38% from 2.6% in 1992 to 1.6% in 2012.
  • The positivity rate for the U.S. General Workforce declined by 60%, from 10.3% in 1992 to 4.1% in 2012.”

Despite the overall decline, the positivity rate for certain drugs rose during this period.  Quest reports:

  • “Positivity rates for amphetamines (including amphetamine and methamphetamine) nearly tripled (196% higher) in the combined U.S. workforce and, in 2012, were at the highest level since 1997.  The positivity rate for amphetamine itself, including prescription medications such as Adderall®, has more than doubled in the last 10 years.
  • Positivity rates for prescription opiates, which includes the drugs hydrocodone, hydromorphine, oxycodone and oxymorphine, have also increased steadily over the last decade—more than doubling for hydrocodone and hydromorphine and up 71% for oxycodone—reflective of national prescribing trends.”

A 2012 report by Quest Diagnostics found that the majority of Americans misused their prescription medications, including opioids and amphetamine medications. 

The data suggests, in our opinion, that workplace drug testing, with its threat of disclosure and risk of disciplinary action and termination, has helped reduce markedly the positivity rates for illegal drugs over the last 25 years, but that employers’ testing programs must be reviewed periodically and revised to address the abuse of new and different drugs and controlled substances, and changes in laws and regulations.

The Jackson Lewis Drug Testing and Substance Abuse Management Practice Group assists employers in the review, revision and preparation of substance abuse policies to meet workplace needs and comply with applicable laws.

A mental health worker at a drug addiction treatment center was not “regarded as disabled” by his employer when he was discharged for failing to disclose three felony cocaine possession convictions on his employment application, a federal court in North Carolina has held.  Rocha v. Coastal Carolina Neuropsychiatric Crisis Servs., P.A., No. 7:12-CV-2-D (E.D.N.C. Oct. 16, 2013). 

During the application process, Rocha completed an employment application that asked whether he had ever been convicted of a felony or misdemeanor, other than traffic violations.  Rocha answered “no.”  The employment application further contained a certification that all of the information provided by the applicant was “true, correct and complete.”  When Rocha was interviewed for the position as a mental health worker (interacting with patients to whom controlled substances were dispensed), he never revealed any felony convictions, or that he was a recovering drug addict.  He also did not ask for any accommodations under the Americans with Disabilities Act (“ADA”).  After the interview, Rocha received an offer of employment that was conditioned on the receipt of satisfactory results from a criminal background check.  Rocha completed an authorization/release form for purposes of the criminal background check.

Before the employer received the results of the criminal background check, Rocha revealed that he had a drug conviction when he was young.  He did not disclose additional details.  The criminal background check revealed that Rocha was convicted of three felonies related to possessing illegal drugs.  Based on the material discrepancy between Rocha’s employment application and his criminal history, the employer determined that Rocha had made a material misstatement on his employment application, and he was terminated.

Rocha filed suit under the ADA, arguing that the employer regarded him as a drug addict, among other things.  Specifically, Rocha argued that because he disclosed one of his drug convictions after his job interview, the employer mistakenly regarded him as being a drug addict and fired him for that reason.  The Court rejected this argument because Rocha only disclosed to the employer that the criminal background check would reveal a criminal conviction for drugs when he was young.  This statement would not lead to the conclusion that Rocha currently was a drug addict; indeed, Rocha conceded that not every person convicted of illegally possessing drugs is a drug addict.  Rocha then argued that his previous convictions were related to his history of drug addiction.  The Court held that even if Rocha could prove he was disabled – which he could not – his disability would not excuse his misconduct when he did not provide honest answers about his criminal history on the employment application.  Summary judgment was granted to the employer.

Employers who desire to test their employees, particularly when conducting on-site testing using specimens other than urine, should consider the New York Court of Appeals’ 4-3 decision allowing subjects of drug tests to sue laboratories for “negligent testing.” Landon v. Kroll Laboratory Specialists Inc., 2013 NY Slip Op 6597 (Oct. 10, 2013), illustrates risks that attend employment-related drug testing. For details on the decision, please see Lesson for Workplace Drug Tests in Convicted Probationer’s Suit against Lab for Positive Result.

 

The U.S. Food and Drug Administration announced on October 24, 2013 that it intends to recommend that products containing hydrocodone should be reclassified from Schedule III to Schedule II of the federal Controlled Substances Act, to increase controls on the use and misuse of opioid products.  Hydrocodone is a narcotic pain reliever that is found in drugs such as Vicodin and Lortab.  The FDA has become increasingly concerned about the nationwide epidemic of prescription painkiller abuse, and has made efforts to address this problem.  (See our blog post “FDA Takes Steps to Address Epidemic Levels of Prescription Painkiller Abuse” dated May 3, 2013).

Schedule II of the Controlled Substances Act is a more restrictive schedule than Schedule III.  The scheduling system, which is overseen by the U.S. Drug Enforcement Administration, classifies drugs into five distinct categories, or schedules, depending on a drug’s accepted medical use and its potential for abuse and addiction.  The abuse rate is considered a significant factor in the scheduling of a drug.  Schedule I drugs are the most dangerous class of drugs with a high potential for abuse and potentially severe psychological and/or physical dependence.  Schedule II drugs are drugs with a high potential for abuse, with use potentially leading to severe psychological or physical dependence.  Schedule III drugs are drugs with a moderate to low potential for physical and psychological dependence.

The FDA’s proposed schedule change will require patients to take prescriptions for hydrocodone-based pain pills to a pharmacy, rather than having a doctor call it in.  In addition, the proposed schedule change will reduce the number of refills patients could obtain without seeing a physician again.  Current rules allow patients to refill hydrocodone-based prescriptions five times during any six-month period before having to return to a doctor for a new prescription.

The FDA expects to submit its formal recommendation to the U.S. Department of Health and Human Services in early December 2013.  The recommendation is then expected to be adopted by the U.S. Drug Enforcement Administration in 2014.

In a case of first impression, a federal court in Maryland ruled recently that the state’s drug and alcohol testing statute prohibits private employers from conducting breath alcohol tests on its employees.   Whye, et al v. Concentra Health Services, Inc., 12-cv-3432 (ELH) (D. Md. Sept. 24, 2013).

As employees of Vector Security, Inc., Wendell Whye and William Trout underwent periodic, random breath alcohol testing, pursuant to the Company’s substance abuse policy.  The tests, which were administered by third-party testing provider Concentra Health Services, Inc., required Plaintiffs “breathe deeply for several minutes [into a breath testing device] so as to produce alveolar or ‘deep lung’ breath for chemical analysis.”  The breath samples were not preserved and, in the event of a positive test result, could not be later retested for accuracy.

While neither employee tested positive for alcohol, nor did Vector ever take disciplinary action against them based on test results, Whye and Trout filed suit against Concentra on behalf of themselves and others similarly situated, alleging the breath alcohol tests were illegal under Maryland law.  Conceding that Maryland’s testing statute does not provide a private right of action, the Plaintiffs alleged common law claims for invasion of privacy and fraud.

Hon. Ellen Lipton Hollander analyzed whether Maryland’s testing statute permits the use of breath alcohol testing.  Since the Maryland courts had not yet considered this issue, Judge Lipton reviewed both the plain language of the statute and its regulatory framework.  In doing so, the Court held the Maryland legislature intended to only permit testing of the specimens specifically enumerated in the statute, i.e. blood, urine, hair and saliva.  The Court relied heavily on the statute’s legislative history, finding significant the fact that the legislature had on four occasions unsuccessfully attempted to amend the law to add breath as an enumerated specimen.  Further, a declaratory ruling from the Maryland Department of Health and Mental Hygiene, which administers the testing law, had held previously that employers may not require job-related breath testing.

In addition to finding breath alcohol tests per se illegal, the Court found the tests administered by Concentra were specifically unlawful, as they did not allow for the retesting of breath specimens.

Though the Court held the breath tests were unlawful, it dismissed with prejudice Plaintiffs’ invasion of privacy claim, stating “the employees had no privacy interest in the information sought by breath testing.”  Plaintiffs’ fraud claim was also dismissed, though the Court allowed Plaintiffs fourteen days with which to amend their Complaint and allege Concentra made a deliberately false representation with the intent to deceive.  The Court noted, however, that the named Plaintiffs did not have any damages, as neither was subject to discipline by Vector.

Any Maryland employers conducting breath alcohol testing should cease immediately.  Although this decision is not binding on Maryland state courts, this opinion, as well as the Maryland Department of Health and Mental Hygiene’s declaratory ruling, indicates such testing is impermissible within the state.

An Iowa appellate court reversed an award of damages to an employee under the Americans with Disabilities Act (“ADA”) after the employee was discharged for refusing to submit to a post-accident drug test.  Phillip M. Brown v. Mystique Casino, No. 3-723, 13-0012 (Iowa App. Oct. 2, 2013).

The employee had taken a number of prescription painkillers throughout his employment, including hydrocodone, oxycodone and hydromorphone.  Due to safety issues associated with his job as a maintenance laborer, the employer prohibited the employee from using power tools or driving vehicles at one point during his employment.  At a subsequent time, the employee took a medical leave of absence while using the prescription painkillers and eventually returned to work.

Shortly after his return to work, the employee cut his finger while at work.  He was advised by a supervisor that he needed to go to the hospital to determine whether he needed stitches.  The Company’s drug and alcohol policy required a post-accident test because the employee suffered an injury at work.  The employee refused to submit to the drug test, even after he was advised that the test was for illegal drugs, not for prescription medications.  Because the employee continued to refuse, his employment was terminated.

The employee filed suit under the ADA, arguing that he was terminated based on his disability.  The case proceeded to a jury trial and the jury entered a verdict in the employee’s favor.  The employer filed a motion for a judgment notwithstanding the verdict, which was denied.

The appellate court reversed and dismissed the case.  Among other things, the court found that the employer had the right to subject the employee to a post-accident drug test under its policy, and noted that the employee testified that he was aware that refusing to test could be grounds for termination.  The court rejected the employee’s argument that the jury’s verdict was supported by “a theory that the company allowed him to return to work, then waited for him to suffer an injury, knowing he would be required to take a drug test and further knowing that he would refuse the drug test.”  The court held that there was no evidence supporting such a theory, and that there was no evidence that the drug test was merely a pretext for terminating the employee’s employment.

Employers should always include a provision in their substance abuse policies advising employees that refusing to test will lead to termination, and defining the types of conduct that constitute a “refusal to test.”

A Pennsylvania court has upheld a commercial motor vehicle driver’s eligibility to receive unemployment benefits where the Medical Review Officer (“MRO”) did not advise the driver of his right to request a split-specimen test, as required under the Federal Motor Carrier Safety Administration’s (“FMCSA”) regulations.  Carlisle Carrier Corporation v. Unemployment Compensation Board of Review, No. 567 C.D. 2013, 2013 Pa. Commw. Unpub. LEXIS 740 (Pa. Commw. Oct. 3, 2013).

The driver was discharged after testing positive for cocaine on a random drug test.  Pursuant to U.S. Department of Transportation (“DOT”) regulations, the driver should have been advised by the MRO that he had the right to request a split-specimen test within 72 hours of being notified of the positive test result.  49 C.F.R. §§ 40.153 & 40.171.

The driver testified that he was not so notified.  The employer did not call the MRO as a witness, but had a Human Resources employee testify about what “would” have happened when a driver tests positive.  The employer also argued that the driver had been trained on the Company’s drug and alcohol policy which discussed the right to request a split-specimen test.  The Court rejected the Human Resources employee’s testimony as hearsay, and held that the employer’s training on the drug policy did not satisfy the obligation under FMCSA regulations to notify the driver of his right to a split-specimen test within 72 hours of being notified of the positive test result.

The Court affirmed the order of the Unemployment Compensation Board of Review which affirmed a referee’s determination that the driver was eligible to receive unemployment compensation benefits.

This case serves as a reminder that DOT-regulated employers are ultimately responsible for compliance with all DOT drug and alcohol testing regulations, and are responsible for the actions taken by their service agents, including MROs.  49 C.F.R. § 40.15(c).