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.

 

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.