The Minnesota Supreme Court has ruled that a claim for wrongful discharge under Minnesota’s Drug and Alcohol Testing in the Workplace Act (“DATWA”) is subject to a six year statute of limitations.  Because DATWA, codified at Minn. Stat. Section 181.951 et seq., does not contain an explicit limitations provision, the applicable limitations period has long been uncertain. In Sipe v. STS Manufacturing, Inc., No. A11-2082 (July 31, 2013), the Court ruled that claims under DATWA  fall under the state’s six-year statute of limitations for actions, “upon a liability created by a statute, other than those arising upon a penalty or forfeiture or where a shorter period is provided by section 541.07.” The Court held that the exception provided in section 541.07 of Minnesota statutes, which would have resulted in a two-year limitation period, did not apply, thereby overruling a decision from the Minnesota Court of Appeals.

The decision is important for employers doing business in Minnesota because it increases exposure for lawsuits under DATWA. Compliance with Minnesota’s drug and alcohol testing requirements is already very difficult. Employers must have a written policy in place that meets strict criteria. The law also provides that employees who test positive for drugs or alcohol for the first time must be allowed to attend treatment and to return to work if they successfully complete a treatment program.  Damages for technical non-compliance can include lost wages, reinstatement, emotional distress, attorney’s fees and punitive damages. Employers in Minnesota should take this occasion to review their drug and alcohol testing policies and procedures for compliance. 

 

To the drugs of abuse commonly plaguing employers, synthetic cannabinoids, such as K2 and Spice, and synthetic cathinodes, often label as “bath salts,” will have to be reckoned with.  Although the overwhelming majority of states have outlawed K2 and Spice, as well as bath salts, according to the National Council on State Legislatures, and although they have been added by legislation to Schedule I of the federal Controlled Substances Act,KSAT in San Antonio, an ABC affiliate, reminded employers recently that detecting them is not a given.  Employers need to check whether the laboratories they are using to analyze drug test results have the ability to test for these substances, KSAT cautioned.  The conventional tests used by laboratories to test for natural cannabis (delta 9-THC), for example, will not detect these synthetics. The chief operating officer of a chain of medical clinics in the San Antonio area, according to the station, described the problem as a “mushroom cloud [that] is exploding and getting more complicated.”

A spokesperson for a human resources consulting group in the area reportedly added, “The expansion of this type of testing is going to be a substantial tool for emplpyers.  If they can’t control the sale, they can at least deter the use.”

The Centers for Disease Control and Prevention (“CDC”) has published a new survey showing that prescription painkiller overdoses have increased sharply among women since 1999. Specifically, the CDC found that deaths from prescription painkiller overdoses among women have increased more than 400% since 1999, compared to 265% among men.  This rise relates to the increased prescribing of these drugs during the past decade.  Prescription painkillers include opioids such as OxyContin, Vicodin and Percoset.  The CDC’s survey also found that:

  • More than 5 times as many women died from prescription painkiller overdoses in 2010 as in 1999.
  • Women between the ages of 25 and 54 are more likely than other age groups to go to the emergency department from prescription painkiller misuse or abuse.  Women ages 45 to 54 have the highest risk of dying from a prescription painkiller overdose.
  • Non-Hispanic White and American Indian or Alaska Native women have the highest risk of dying from a prescription painkiller overdose.
  • Prescription painkillers are involved in 1 in 10 suicides among women.

The CDC study also gave these possible reasons to explain the increase:

  • Women are more likely to have chronic pain, be prescribed prescription painkillers, be given higher doses, and use them for longer time periods than men.
  • Women may become dependent on prescription painkillers more quickly than men.
  • Women may be more likely than men to engage in “doctor shopping” (obtaining prescriptions from multiple prescribers).
  • Abuse of prescription painkillers by pregnant women can put an infant at risk.  Cases of neonatal abstinence syndrome – which is a group of problems that can occur in newborns exposed to prescription painkillers or other drugs while in the womb – grew by almost 300% in the U.S. between 2000 and 2009.

New Hampshire’s legislature has set the stage for the Granite State to become the 19th State to legalize medical marijuana.  On June 26, 2013, the legislature approved  HB 573, also known as “Use of Cannabis for Therapeutic Purposes.”  The statute allows patients diagnosed with certain qualifying conditions (including cancer, multiple sclerosis, Chrohn’s disease, and HIV/AIDS) to possess up to two ounces of marijuana.  It will also establish four non-profit, state licensed medical marijuana dispensaries.

While the Democratic-controlled House and Republican-controlled Senate had both previously passed legislation legalizing medical marijuana, HB 573 is a compromise legislation that was necessary due to significant differences in each chamber’s bills.  The lawmakers reached a bicameral compromise in early June – agreeing to withdraw a controversial home cultivation provision and to remove post-traumatic stress disorder from the list of qualifying conditions in exchange for enacting a medical marijuana oversight commission.

New Hampshire Governor Maggie Hassan has stated publicly she intends to sign the legislation into law.  If so, medical marijuana dispensaries could open within the next eighteen months.

The bill provides some level of protection to employers with drug-free workplaces, stating specifically that it should not be construed to require “any accommodation of the therapeutic use of cannabis on the property or premises of any place of employment . . . [and] shall in no way limit an employer’s ability to discipline an employee for ingesting cannabis in the workplace or for working while under the influence of cannabis.”  Moreover, it does not provide any specific protections for employees who are terminated, disciplined, or refused hire because of failing a drug test or using medical marijuana.

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.