Governor Rick Perry (R) of Texas has approved legislation that will require applicants for unemployment insurance to face state-administered drug tests as a condition of receiving benefits.  S.B. 21 takes effect on September 1, 2013, but it would apply to claims filed with the Texas Workforce Commission beginning February 1, 2014.  In signing the bill on June 14, Governor Perry emphasized, that while Texans stand ready to help one another in times of need, through its unemployment insurance program, “Texas is also a state where personal responsibility is very important and recipients of unemployment benefits have a responsibility to be prepared to work when an opportunity presents itself.”  Taking illegal drugs when testing is required for employment in a chosen career, he said, is inconsistent with that objective.

The bill provides that an individual for whom suitable work is available only in an occupation that regularly conducts pre-employment drug testing will be deemed available for work (and, therefore, eligible to get benefits) only if the individual complies with the law’s drug screening and testing program, as further described in rules to be adopted by the TWC.

A covered individual who files an initial claim for unemployment benefits will have to submit to and pass a “drug screening assessment” (written questionnaire) designed to determine the reasonable likelihood that an individual is using a substance regulated by the Texas Controlled Substances Act.  If the TWC makes such a finding, the claimant will have to submit to and pass a state-administered drug test to get benefits.  (An individual who fails the test can take another no earlier than four weeks later.)  Appeals and exceptions are specified in the statute, including an exception for participation in a drug treatment program.

There are several hitches.  First, the TWC must develop regulations to administer the law.  Even then, the new law depends upon the U.S. Department of Labor issuing a list of occupations in which pre-employment drug testing is regularly conducted.  The DOL was charged with producing such a list under the Middle Class Tax Relief and Job Creation Act of 2012, which amended the Social Security Act to allow state unemployment insurance programs to conduct applicant drug testing as Texas law is intended to provide.  But the DOL has not done so, although it reportedly expected regulations would be ready by this May.

Just how many occupations will be covered by the DOL regulations is another question.  A TWC spokesperson said she anticipates at this time “a few limited occupations in healthcare and transportation may be impacted,” but she said the TWC would have to await DOL guidance as to other fields.  Survey data from The Society for Human Resource Management commissioned by The Drug and Alcohol Testing Association (DATIA), suggest pre-employment drug testing is widespread, but in forging the Tax Relief Act, some Democratic lawmakers said they expected the DOL list would be a narrow one.

A federal district court erroneously enjoined Florida Governor Rick Scott’s (R-Fl) Executive Order (No. 11-58) mandating pre-employment drug testing for all prospective new hires and random drug testing of all state employees within each agency, the U.S. Court of Appeals in Atlanta has held.  (AFSCME Council 79 v. Scott, 35 (BNA) IER Cases 1273 (11th Cir. No. 12-12908, decided May 29, 2013).  The Executive Order allowed Florida’s 85,000 state employees to be tested at least quarterly.

The district court granted an injunction against the random testing of all state employees, although it did not inquire into which employees, if any, might be employed in “safety-sensitive jobs,” . . . and despite the fact that the union which brought the challenge conceded that at least one of the 85,000 was engaged in a “high-risk safety-sensitive job.”  (It did not address the pre-employment testing.)

The Court of Appeals said that such a facial challenge to the Executive Order was justifiable only if there were no circumstances in which it could be applied in a constitutional manner.  Otherwise, the Court said, the challenge would have had to been brought on an “as applied” basis – examining each job to see whether suspicionless, random drug testing might be warranted on a “special needs” basis, generally meaning that the job is safety-sensitive.

Here, although the district court said it was addressing a claimed Fourth Amendment violation on an “as applied” basis, in fact it treated the claim on a facial basis.  “Rather than conducting any kind of job-category-by-category inquiry, and narrowly tailoring its decision to the precise contours of the constitutional violation, the district court facially invalidated the provision of the Executive Order that provides ‘for random testing of all employees with each agency,’” the Eleventh Circuit found.

Indeed, the Court of Appeals noted that based on the union’s own submission, approximately 33,000 state employees “served in arguably safety-sensitive positions.”  As to such positions, the district court on remand would have to engage in the necessary balancing of individual privacy against the government’s interests.  This would require considering the characteristics of the industry, whether the government interest was “compelling,” the efficacy of the policy, the character of the intrusion on privacy and the employees’ expectations of privacy, as prescribed by Supreme Court cases.  Among the categories of jobs where suspicionless testing had been upheld, the Eleventh Circuit summarized, were those involving drug interdiction, the carrying of firearms and the handling of classified material (“truly sensitive information”).  It observed further that sister circuits had upheld suspicionless testing where jobs involve heavy machinery or the operation of large vehicles, such as planes, trains, buses or boats; police officers and correctional officers also might be included in such testing.  These positions presented a substantial and real risk to public safety or direct involvement in drug interdiction – the employment-related rationales approved by the U.S. Supreme Court.

“[T]he sort of fact-intensive line-drawing required is a task that properly belongs to the district court,” the Eleventh Circuit said, declining to affirm any part of the judgment.  The Court also rejected the State’s argument that the employees’ consent to testing – on pain of termination – or the general need for a safe and efficient workplace alone were sufficient to justify random testing of all current employees.  The fact that some risk to employees inhered in many workplaces would not suffice.  The court said, “We reject the idea that a stack of heavy boxes or a wet floor falls within the same ballpark of risk as the operation of a ten-thousand-ton freight train or the danger posed by a person carrying a firearm.”

Recognizing that a “substantial, even onerous” task lay before the parties and the district court, the Court of Appeals nevertheless remanded the case stating, “Convenience cannot override the commands of the Constitution.”  The ruling does not affect Florida’s Drug Free Workplace Act.

The Governor responded to the Court of Appeals’ ruling with the following statement:

Many Floridians are required to take drug tests in their workplace and it is only right for state workers paid with taxpayer funds to be required to do the same.

The Court did the right thing today by reversing the injunction on our executive order for drug testing state employees.  We will go forward in arguing this case in both the appellate and trial courts in order to ensure that taxpayer funds are safeguarded from misuse by ensuring our state workforce is drug free.

An elementary public school classroom assistant was properly terminated for workplace drug abuse despite her 23 years of unblemished service and an arbitrator’s award reinstating her subject to various conditions because, a Pennsylvania appellate court has held, the award ran afoul of a “well-defined documented public policy of protecting children in school from the damages of illicit drugs and drug use.”  Westmoreland Intermediate Unit #7 v. Westmoreland Int. Unit #7 Classroom Assist. Ed. Support Pers. Ass’n, PSEA-NEA, Comm. Ct. of Pa., No. 1746 CD 2008, filed June 20, 2013.  The court vacated the award.

The Grievant was responsible for working on a one-to-one or small group basis with emotionally disturbed children.  She also assisted in administrative duties, such as escorting children to restrooms, lunch recess and to and from buses.  Her lengthy employment history was without disciplinary incident.

In March 2001 the Grievant was found unconscious in the school’s restroom as a result of a drug overdose.  She was wearing a 100 mcg Fenotyl patch on her back while performing her duties.  Fenotyl is a Schedule II narcotic opioid analgesic under the state’s controlled substances law, which makes its possession a misdemeanor, absent a valid prescription.  It is approximately 50 times more potent than  heroin and 50-100 times more potent than morphine, the court noted.  The patch was not prescribed to the Grievant; she had gotten it from a friend.  Emergency room records show the Grievant had worn it because it was “a temptation.”  The school fired the employee as a result of the incident.

The Grievant’s union took her case to arbitration.  It claimed the employer lacked “just cause” for the firing because her conduct did not amount to “immorality” under the Commonwealth’s Public School Code (describing valid causes for termination).

The arbitrator sustained the grievance with conditions.  He relied heavily on the Grievant’s lengthy, unblemished service.  Her single error of judgment did not amount to such a grievous offense that it would offend community morals, he concluded.  Recognizing the gravity of her conduct, however, the arbitrator required that the Grievant participate in a drug and alcohol treatment program, abstain from mood altering drugs or chemical substances while on duty, submit to drug and alcohol screenings and participate in counseling and a treatment program.  He also denied back pay.

The employer sought judicial relief from the award.  Years of litigation ensued, including in the State Supreme Court.  Meanwhile, the Supreme Court in an unrelated case crafted a new “public policy” exception to the familiar rule that arbitration awards must be upheld if they draw their essence from the parties’ collective bargaining agreement.  Philadelphia Housing Authority v. AFSCME, 52 A.2d 1117 (2012) (involving sexual harassment).  It substituted the new exception for a “core functions” exception which the High Court found “insufficiently precise.”

Applying Philadelphia Housing Authority, the Commonwealth Court concluded that “the Arbitrator’s award of reinstatement, even with the conditions imposed, would violate the public policy of this Commonwealth.”  The majority explained, “the public policy of educating our children about the dangers of illicit drugs and drug abuse and protecting children from exposure to drugs and drug abuse is compelling.”  Agreeing with the employer, the court said:

to reinstate an employee who attended work while under the influence, while charged with the duty of overseeing young children, with the hope that she will overcome her addiction, defies logic and violates public policy.  The award essentially would allow Grievant to be placed back in the classroom pending her attempts at recovery.  Simply put, an elementary classroom is no place for a recovering addict.  The Arbitrator’s award demonstrates a tolerance, rather than intolerance for illicit drug use, and is in direct contravention of public policy.  Grievant’s immediate reinstatement to the classroom while she attempted rehabilitation “eviscerated” Employer’s ability to enforce the dominant public policy.

The Court vacated the arbitrator’s award.

The dissenting judge reasoned much as did the arbitrator.  She would have sustained his award.  She also took issue with the majority’s characterization of the Grievant as an “addict,” finding no support in the record for that description.

Washington State’s U.S. Senators, along with five members of the state’s delegation to the House of Representatives, all Democrats, have requested U.S. Attorney General Eric Holder to announce the federal government’s position on Washington State’s and Colorado’s legalization of marijuana as soon as possible.  In a letter to Mr. Holder dated June 17, 2013, the lawmakers asked the Attorney General to “exercise [his] significant discretionary authority by choosing not to pursue preemption of these laws, or prosecute . . . residents and state employees acting in compliance with these state laws.”

The lawmakers further asserted that both Washington and Colorado already have invested significant resources in the regulatory and taxation systems necessary to legalize marijuana, which is expected to generate new jobs and tax revenue for both states.  The lawmakers also want to ensure that citizens will not be penalized by the federal government for activities that are legal under state laws.

Marijuana remains illegal under the federal Controlled Substances Act.  Despite federal illegality, both Colorado and Washington passed marijuana legalization laws in November 2012.  See our website articles for further details about these laws: Implications of Marijuana Legalization For Washington Employers, 11.9.2012, and Employers’ Anti-Drug Policies Remain Enforceable Under Colorado’s Marijuana Regulation Act, 11.12.2012.

The Obama Administration has yet to announce its position on the legalization of marijuana.  However, the website of the White House’s Office of National Drug Control Policy states: 

“The Administration opposes drug legalization. Legalization threatens public health by increasing availability of drugs and undermining prevention activities. It also hinders recovery efforts and poses a significant health and safety risk to all Americans, especially our youth. Marijuana is a harmful drug and its use should be prevented and treated – not promoted. Outside the context of Federally approved research, the use and distribution of marijuana is prohibited in the United States.”

Possession of alcohol on plant premises in violation of a published plant rule justified an employee’s discharge, a contract arbitration board has decided, rejecting a grievance that the company lacked proper cause for imposing the penalty because the violation was inadvertent.

The company maintained a rule prohibiting, among other things, “The … possession … of … alcohol on [company] property, including parking lots and grounds….”  Disciplinary action up to discharge was authorized for a violation.  A notice posted on the plant gate also warned against such possession, of possible discipline, and that entry onto plant property meant consent to a search.  The employee admittedly was aware of the rule and that its violation would constitute misconduct for which he could be disciplined.

The employee parked his pick-up truck on a plant lot near the building in which he worked.  A plant guard on patrol in the parking lot looked through a side window of the truck and saw beer behind the front seat. The employee was summoned to the parking lot and identified his truck.  He said a 30-pack and an 18-pack had been purchased for a fishing trip with friends, but he had forgotten to remove the remaining cans, which were placed behind the front seat, before he had driven to the plant.  He was subsequently terminated for violating the plant rule.  The company noted the vehicle was parked in close proximity to the employee’s workplace.  The plant had never imposed a penalty less than discharge for such an offense, according to a supervisor. The union eventually brought the employee’s grievance to arbitration.

The company prevailed.  The employee maintained credibly that he had no intention of bringing beer onto company property, there was no evidence the employee had been drinking on premises, that according to his supervisor he was “one of my better employees,” and that the rule allowed lesser sanctions, providing for “disciplinary action up to and including suspension or discharge from employment” for its violation, but the grievance was rejected.  The arbitration board could “not ignore the hard facts that Grievant…did bring beer onto plant property … in violation of known policy and that he possessed only about five months of continuous service at the time of this incident.  It was Grievant’s responsibility to have removed this alcohol from his truck before driving the truck onto plant property and yet, unfortunately, he did not do so.”  The board said it could not reasonably find the company’s action either discriminatory or unsupported by proper cause in the circumstances.  It noted, too, the company’s reliance on board precedent that the possession of alcohol (or drugs) on plant property constitutes “intolerable conduct” and proper cause for discharge, regardless of length of service.

The termination was sustained.  A strict prohibition could be complemented by strict enforcement under the parties’ collective bargaining contract.   U.S. Tubular Steel Products, Inc., subsidiary of United States Steel Corp., Wheeling Mach. Prods. Div., Hughes Springs Plant, and United Steelworkers, Local 4134, Case No. USS-47,400 (Petersen, Arb., approved by Board of Arb’n, Das, Ch., Feb. 19, 2013), 131 BNA LA

The National Transportation Safety Board (“NTSB”), an independent federal agency, known for investigating major railroad, aviation and highway accidents and with responsibility for making  recommendations aimed at preventing  accidents, has released 19 recommendations  to “eliminate” alcohol-impaired driving accidents.  The recommendations include the implementation of stronger laws, swifter enforcement and the use of new technology – and a lower threshold for determining alcohol-impaired driving, from 0.08 to 0.05 by blood alcohol content (“BAC”).

NTSB statistics indicate that each year nearly 10,000 people are killed in crashes involving alcohol-impaired driving and more than 173,000 are injured.  Chairman Deborah A.P. Hersman stated, “On average, every hour one person is killed and 20 more injured [from impaired driving].”  These statistics are grave enough for Chairman Hersman to state alcohol-impaired driving is a “national epidemic.”

According to NTSB research, although impairment begins with merely one drink, once an individual’s BAC has reached 0.05, both cognitive and visual functions decline.  Currently, all 50 states utilize a BAC of 0.08 before imposing criminal penalties for “driving while intoxicated.”  Thus, NTSB has recommended all states reduce the 0.08 BAC to 0.05 for imposing criminal penalties.

This would not be the first time BAC thresholds have been lowered.  Until 2000, an individual would not be found guilty of driving while intoxicated in the United States if his BAC was less than 0.15.  In contrast, the Federal Motor Carrier Safety Administration (“FMCSA”), the Department of Transportation agency tasked with regulating the driving of commercial motor vehicles, has established a BAC threshold of 0.04 for determining whether a driver has violated its rules and requiring the removal of the driver from duty.  Additionally, under the FMCSA regulations, drivers may not resume performing safety-sensitive duties, such as driving a commercial motor vehicle, until they have been assessed by a Substance Abuse Professional, who must determine the required treatment and/or education the driver needs in resolving problems associated with alcohol misuse, and received a return to duty alcohol test result of less than 0.02, among other things.

Other recommendations offered by the NTSB include, among others:

  • High visibility enforcement efforts such as checkpoints, patrols and media campaigns;
  • Ignition interlocks for all driving while intoxicated offenders; and,
  • Administrative license suspension, which allows law enforcement to immediately suspend or revoke driver’s licenses at the time of a DWI arrest, and not allow reinstatement until an ignition interlock is installed.

Many employers that maintain substance abuse testing policies utilize the FMCSA thresholds when it comes to positive alcohol test results.  However, those who have been more lenient may have to reevaluate their policies if the NTSB recommendations are adopted.

The omission of a private action remedy from the Idaho Private Employer Alcohol and Drug-Free Workplace Act bars a wrongful discharge suit based on the Act, a federal district court has concluded, refusing to imply a cause of action in the law in the face of statutory silence on the question.  Observing that no Idaho court has addressed the issue, the federal court reasoned that if presented with the question, the state Supreme Court would reject the claim because compliance with the Act is “‘voluntary’ by its very terms,…promoting rather than mandating compliance.”  Anderson v. Thompson Creek Mining Co., No. 4:11-CV-639-BLW (D. Id., May 2, 2013).

Following a positive drug test result leading to his termination, Anderson sued his employer claiming the testing procedures used by Thompson Creek Mining violated his rights under the Idaho Act.  Examining the Act’s provisions, the court found the statute contained only voluntary provisions for the taking of samples and the testing itself.  The statute, it said, sought to encourage employer compliance by offering for those who complied reduced unemployment insurance taxes (by presuming employees who tested positive in accordance with the law to have committed “misconduct” warranting a denial of benefits), affording protection from lawsuits (with some exceptions), saving them money on workers compensation insurance premiums and rendering employers eligible to contract for state construction projects. 

 The Idaho Act, however, did not by its terms authorize a private lawsuit for a violation.  Neither could such a right of action be implied in the law, the court concluded, for “it neither proscribes non-compliance nor requires compliance,” a threshold requirement; it promotes rather than mandates compliance by offering employers substantial economic benefits.  The court noted, moreover, that if the Idaho legislature had wanted to provide expressly for civil remedies, it would have been easy to do so, citing Oklahoma’s substance abuse testing law which does offer such remedies.  “To read an implied right of Action into the Act would be to impose a mandatory duty on employers to comply with its terms.  The Court refuses to rewrite the statute in that manner,” it held.

 The court also refused to find a wrongful termination in violation of public policy as expressed in the Act. To do so, in light of its finding that no private cause of action could be based on the Act, “would be to ‘judicially admit at the back door that which has been legislatively turned away at the front door.'”  The court granted judgment to the employer dismissing the action.

 A number of states have enacted “drug-free workplace laws” to discourage substance abuse in employment.  Many of them have analogous incentives for employers.  They, too, are voluntary. Others, however, may be characterized as “mandatory,” since they seek to regulate workplace drug testing and afford employees a cause of action for their violation, even if they do not require employers to engage in substance abuse testing in the first place.  What is less clear is whether, in the absence of express statutory civil lawsuit provisions, private sector substance abuse testing laws would imply a cause of action by employees or serve as a source of state public policy on which suit can be brought.  This case’s reasoning may offer employers some comfort in that regard.  But the laws must be examined closely in each instance to discern an employer’s rights and possible legal exposure.

An Iowa court held that a mechanic who only moved vehicles on the premises of his workplace was a “driver” for purposes of the Federal Motor Carrier Safety Administration’s drug and alcohol testing regulations.  Hargrove v. Mail Contractors of America Inc., No. 3-186/12-1210 (Iowa Ct. App. April 24, 2013). 

The mechanic was fired by his employer based on the results of a random drug test.  The mechanic filed suit, alleging that the employer violated Iowa’s drug testing law and that he was wrongfully terminated in violation of public policy.  The employer asserted that due to a contract with the U.S. Postal Service, it was required to conduct its operations in accordance with the U.S. Department of Transportation’s (“DOT”) regulations, and therefore, the mechanic’s claims under state law were preempted by federal law.  Iowa’s drug testing statute explicitly states that it does not apply to employees required to be tested under federal regulations.

The mechanic argued that he did not operate commercial motor vehicles and therefore was not subject to DOT drug and alcohol testing regulations.  He conceded that his job required him to possess a commercial driver’s license and to be able to drive a semi truck.  However, he stated that as a practical matter, he did not drive on public roads, and that he only drove a vehicle from the yard into the shop for repairs.

Based on the plain language of the DOT regulations, the court held that the mechanic was, in fact, a driver subject to DOT’s drug and alcohol testing regulations.  Those regulations define “driver” to include “any person who operates a commercial motor vehicle” including “casual, intermittent or occasional drivers.”  49 C.F.R. § 382.107.

The court further stated that the employer’s vehicles were used in commerce to transport mail in accordance with the U.S. Postal Service contract.  Given that the mechanic agreed that he operated the vehicles on occasion, he was a “driver” subject to DOT drug and alcohol testing regulations.  His state law claims therefore were dismissed because they were preempted by federal law.

DOT-regulated employers should not always assume that commercial motor vehicle drivers who do not drive “over the road” or cross state lines are not covered by DOT’s drug and alcohol testing regulations.  As this case highlights, the definitions of “driver” and “commercial motor vehicle” contained in the DOT testing regulations are rather broad.

If pilots and commercial truck drivers are subject to federally mandated drug and alcohol testing, why aren’t doctors?  According to an article recently published in The Journal of the American Medical Association, they should be. 

At least one in ten doctors will suffer from drug or alcohol addiction at some point during their career.  Despite these statistics, however, the American Medical Association has never required doctors to undergo drug or alcohol testing, either before beginning employment or following an unexpected patient death or injury.  And, unlike other high-risk industries, no federal agency or other regulatory body has ever mandated profession-wide testing. 

In their April 29 article, Drs. Julius Cuong Pham and Peter J. Pronovost, patient safety experts at Johns Hopkins University in Baltimore, Maryland (with Dr. Gregory E. Skipper of Promises Treatment Center in Santa Monica, California contributing),  argue that drug testing could have a wide variety of positive effects on the profession.  “Patients might be better protected from preventable harm.  Physicians and employers may experience reduced absenteeism, unintentional adverse events, injuries, and turnover, and early identification of a debilitating problem.”  While Johns Hopkins is among a small number of hospitals that requires doctors undergo drug testing as a condition of employment, it is not an industry-wide practice.  Drs. Cuong, Pronovost and Skipper believe that should change.    

The article recommends a number of steps, the first of which includes implementing an AMA-created and accredited testing body.  The testing body could then oversee a variety of testing standards for all AMA accredited hospitals, which would include requiring: mandatory physical examinations and drug screening before medical staff are appointed to a hospital; random drug and alcohol testing; and, testing all physicians involved in a patient’s unexpected death or injury. 

In cases where a doctor is found to be impaired, the article recommends the hospital suspending or revoking his privileges and, in some cases, reporting positive drug and alcohol tests to the state licensure board.  Any doctor found to be practicing while under the influence would be required to undergo treatment and routine monitoring as a condition for returning to practice.

The governor of Arizona signed a law on May 7, 2013 requiring drug testing and criminal background checks for all drivers of livery vehicles, taxis and limousines.  The law requires those who own or lease such vehicles to conduct pre-employment drug testing and criminal background checks on applicants for such driving positions.  After hire, drivers must be subjected to annual random drug testing.  Employers must make criminal background records and drug test results available for inspection by the Arizona Department of Weights and Measures.  The law is expected to take effect later this year.

The new law appears to require annual unannounced testing of all drivers, even though it is characterized as “random” testing.  Random testing means that names are selected at random and that everyone in the selection pool has an equal chance of being selected each time a selection is made.  When drug testing is truly random, there is no way to guarantee that an employee’s name will be selected at any time, let alone once a year.  More importantly, the law does not require employers to refuse to hire applicants who test positive, and does not require employers to fire those drivers who test positive on their annual drug tests, although the expectation appears to be that individuals who test positive should not be permitted to drive.  The law also is silent as to which drugs must be tested.

According to a statement released by the governor’s office, there were 6,449 transportation “for hire” vehicles licensed to operate in Arizona in 2012, and an estimated 13,000 taxi, livery and limousine drivers throughout the state.