A federal district court in Pennsylvania ruled that an alcoholic employee may proceed with claims under the Americans with Disabilities Act (“ADA”) after she was fired for failing to report to work when she was arrested for public drunkenness.  Diaz v. Saucon Valley Manor Inc., No. 12-0433 (E.D. Pa. March 5, 2013).  The evidence showed that Diaz’s supervisors were aware of her alcoholism and knew that she had requested medical leave to obtain treatment for alcoholism.  Her request for leave had been granted.  Moreover, six weeks prior to her termination, she received “excellent” scores on her performance evaluation.  The day before Diaz was scheduled to begin alcohol rehabilitation, she did not report for work and was terminated after the employer heard a rumor that Diaz had been arrested for public drunkenness.

Diaz asserted claims of disability discrimination and retaliation under the ADA.  The employer argued that her termination was not discriminatory because she failed to report for work, was arrested for public drunkenness, and violated the employer’s attendance policies.  Diaz argued that she had no prior history of being late or absent from work; that she had requested the day off to attend a court hearing; and that she had already received approval to begin her medical leave on the following day.  Moreover, the company president testified at a deposition that Diaz’s arrest was “unimportant” because it did not happen at work.  The court denied summary judgment for the employer because there were issues of fact as to whether Diaz was terminated for legitimate, non-discriminatory reasons.

While employers are not required to tolerate drunkenness at work, employees who seek treatment for alcoholism or substance abuse are protected under the ADA as well as many comparable state and local laws.  Employers may not discriminate against recovering alcoholics and substance abusers and should examine the circumstances of a potential termination carefully to avoid the appearance of discrimination.

In Ralphs Grocery Co., NLRB ALJ, No. 21-CA-39867, 4/30/13, a National Labor Relations Board Administrative Law Judge held Ralphs Grocery Co. (“Ralphs”) committed an unfair labor practice by terminating an employee, Razi, who refused to submit to a drug and alcohol test until the employee had an opportunity to consult with his union representative.

Supervisors, including the Store Director at Ralphs, had observed Razi in an agitated, anxious and nervous state.  Razi exhibited slurred speech, would not make eye contact, spoke rapidly and in an animated fashion and had difficulty using the company computer.  Razi also had difficulty kneeling down to tie his shoes.  Based on these observations, the Store Director concluded Razi was under the influence of some type of substance and wanted to send him for a drug and alcohol test.

Upon notification of the Company’s decision, Razi refused to submit to the test and claimed he was insulted by the accusation.  The Store Director advised Razi that his refusal to submit would be grounds for immediate termination.  Razi then stated he wanted to contact a union representative.  The Store Director advised Razi that he did not have the right to union representation, but allowed him to try to contact a union representative anyway.  Under NLRB v. J. Weingarten Inc., 420 U.S. 251, 88 LRRM 2689 (1975), an employee has a right upon request to have a union representative present during an investigatory hearing the employee reasonably believes may result in disciplinary action.  Razi could not reach a union representative and after about 10 to 15 minutes the Store Director again requested he submit to a test.  Razi again refused despite the warnings from the Store Director that it would result in his termination from employment.  Ultimately Ralphs terminated Razi’s employment for refusing its request that he submit to a drug and alcohol test and an arbitration and unfair labor practice hearing ensued.

The Arbitrator held in favor of the Company on the ground that the National Labor Relations Act’s Weingarten Rights did not apply to a drug and alcohol testing directive since no questions were asked by Ralph’s and it already had made the decision to send Razi for a drug and alcohol test based on the Store Director’s observations.   The ALJ disagreed and found the Arbitrator’s decision to be “clearly repugnant to the Act.”  The ALJ held “the drug test was ordered as part of an investigation into employee conduct.”  Further, Razi had “an objectively reasonable belief that his employer’s investigation and request to take a drug test could put his job in jeopardy.”

The ALJ’s decision, in our view, is questionable.  The act of submitting to a drug and alcohol test is not an investigatory meeting that might result in discipline.  Had a union representative been available, the conversation between Razi and the union representative would have been, “go for the test or they can terminate you.”  There was no investigation into directing the employee to take the test; the employer already had decided there was reasonable suspicion to test the employees. And if a random drug test were involved, there would have been no “investigation into employee conduct” on which the ALJ would rely.  There was no dispute in the case as to whether the Collective Bargaining Agreement allowed Ralphs to test the employee or whether a refusal to submit would result in the employee’s termination from employment.  Drug and especially alcohol testing is time sensitive.  The ALJ’s decision in this case allows an employee and union to delay the test while waiting for a union representative to become available, leaving the employer helpless in the process as the substance metabolizes in the employee’s system — potentially altering test results.  The ALJ failed to recognize this point.  While this decision may be appealed to the NLRB and the courts, an employer who finds itself in this position should make sure the employee contacts a union representative, if only to explain that the employee must submit to the test or risk having his/her employment terminated.

The Food and Drug Administration announced on April 16, 2013 that it is taking two steps to address the “epidemic levels” of prescription painkiller addiction in the U.S.  First, it announced that it will not approve generic versions of the painkiller OxyContin.  In addition, the FDA approved updated labeling for OxyContin extended-release tablets to describe the product’s abuse-deterrent properties.  These physical and chemical properties make it more difficult to crush, break, or dissolve the tablets, and are expected to make abuse by injection or snorting more difficult.

OxyContin is a time-release form of the drug oxycodone, a synthetic opiate.  Many employers do not realize that their drug test panels typically do not include synthetic opiates.  A “standard” 5-panel tests for marijuana, cocaine, amphetamines, opiates and PCP.  The opiates tested for in a standard drug test panel generally include heroin, morphine and codeine, but not synthetic opiates such as oxycodone, hydrocodone, oxymorphone or hydromorphone (among others).  Employers who wish to test for potential abuse of prescription painkillers should speak with their drug testing vendors to request an “extended opiates” panel or “synthetic opiates” panel.  Of course, employers should have all positive drug test results reviewed by a Medical Review Officer (“MRO”) (a licensed physician with expertise in analyzing drug test results) to ensure that they do not take adverse employment actions based on lawful prescription drug use.  A MRO discusses the positive drug test result with an applicant or employee to determine whether the applicant or employee is using a prescription drug legitimately.  The MRO may request a copy of the prescription and may request to speak with the prescribing physician.  If the MRO is satisfied that the use of the prescription drug is legitimate, he will verify the result to the employer as a negative.  If the MRO is not satisfied that the use of the prescription drug is legitimate, he will verify the result to the employer as a positive.  This process ensures that employers do not take discriminatory actions against applicants or employees who lawfully use prescription medications.

The Massachusetts Medical society doesn’t think the bar will be set high enough for legal marijuana use under the Bay State’s Medical Marijuana Law effective January, 2013.  Under proposed regulations issued by the Department of Public Health, individuals with a debilitating medical condition (e.g., cancer, AIDS, multiple sclerosis and Parkinson’s disease) may seek the law’s protection.  But the Massachusetts Medical Society wants the DPH to require that individuals show they also suffer from “debilitating symptoms,” and that those symptoms can’t be addressed by conventional methods, its president, Richard Aghebabina, M.D., testified recently.  The Medical Society is asking DPH to establish an advisory clinical group within DPH that will set the appropriate standards for covered conditions and determine how serious symptoms must be before an individual can be certified for medical marijuana use.  The Society expressed concern that unfettered discretion allowed under the other states’ laws in determining qualifying conditions can threaten the integrity of the entire system. “We should not follow that model in Massachusetts,” it said.

The DPH regulations approved May 13, 2013, nevertheless, have defined a qualifying patient, for a person at least 18 years of age, as one having a debilitating medical condition.

Flunking a pre-employment drug test could cause South Carolina job applicants to lose unemployment benefits as well as being denied a job.

South Carolina legislators are voting on a bill allowing employers who administer pre-employment drug tests to report to state unemployment officials applicants who test positive for illegal drugs or drugs used unlawfully.  Unemployment benefits can then be cut off for a “failure to accept work.” The principle sponsor of the measure (H.3165), Rep. Edward R. Tallon, Sr. (R.-Spartanburg) explained, “If it’s a prerequisite to go to work for a company to pass a drug test and you don’t pass it, then you’re not fit and able to go to work, so therefore…you should be denied any benefits for being unemployed, because you were offered a job but weren’t fit to take it.”  The bill also covers refusals to test, including adulterated specimens.  The State House of Representatives will vote shortly.  A similar bill passed the House last year, but the legislative session ended before the Senate could vote.  The bill to amend §41-35-1200 of the South Carolina Code would not mandate that private employers perform pre-employment testing.

The bill provides that employers are not liable for acts or omissions arising out of the disclosure of test results to the Department of Employment and Workforce, provided the employer “complies with the requirements of this section and any applicable law.”  An employer may disclose to the Department when a pre-employment drug test is offered and refused or failed by a potential employee.  Refusals to cooperate by providing adulterated specimens also are covered, but need not do so.  The sample used for the testing, whether blood, hair or urine, must be collected and labeled by a licensed health care provider or other person authorized to do so by state or federal law, the test must be performed by a laboratory certified by the U.S. Department of Health and Human Services (Substance Abuse and Mental Health Services Administration (“SAMHSA”)), the College of American Pathologists or the State Law Enforcement Division, and an initial positive test on the specimen must be confirmed by gas chromatography/mass spectrometry, or an equivalent or more accurate method approved by SAMHSA.  Records obtained by officials relating to positive tests or refusals may not be used for any purpose other than to determine unemployment benefits and must be destroyed if they relate to any person not receiving benefits.

South Carolina employers may wish to review their substance abuse policies if this bill becomes law.  We will follow its progress here.

Governor Martin O’Malley has approved legislation creating Maryland’s first medical marijuana program, making it the 19th state to legalize medical marijuana.

H.B.1101 (also known as the “Medical Marijuana – Academic Medical Centers – Natalie M. LaPrade Medical Marijuana Commission” bill), signed into law on May 2, 2013, establishes a Medical Marijuana Commission that will allow the distribution of medical marijuana to qualified patients by “academic medical research centers”.  Unlike other states which allow for privately held dispensaries, academic medical research centers will be limited to non-profit universities and/or hospitals, though the medical centers are able to hire private growers to supply the drug.

While the bill doesn’t state specifically which medical conditions qualify for medical marijuana use, all academic medical centers will need to report to the Commission specific information about what medical conditions it will treat and how patients will be evaluated for diagnoses.  The medical centers will be required to provide the Commission with daily updated data on its patients and their medical conditions.

The bill specifically forbids smoking in public places, but 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.  It is too early to say how Maryland courts will respond to claims of discrimination due to the use of “medical marijuana.”

Illinois’ legislature also is considering a medical marijuana law, the Compassionate Use of Medical Cannabis Pilot Program Act.  If passed, the law will create a four year pilot program providing individuals with certain medical conditions – including cancer and multiple sclerosis – access to medical marijuana, pending approval by their doctors and the Illinois Department of Public Health.  Unlike Maryland’s law, the Illinois bill specifically prohibits employers from “penalizing” an individual for “his or her status as a registered qualifying patient.”  However, no cause of action will exist against an employer who terminates or disciplines an employee who, based upon the employer’s good faith belief, used or possessed marijuana on the employer’s premises and/or was impaired while working on the employer’s premises.

The EEOC filed a notice of appeal on April 22, 2013 concerning the dismissal of its suit challenging U.S. Steel’s random alcohol testing program for probationary employees.  A federal district court in the Western District of Pennsylvania ruled on February 20th that U.S. Steel’s random alcohol testing program did not violate the Americans with Disabilities Act.  EEOC v. U.S. Steel Corp., No. 10-1284 (W.D. Pa. Feb. 20, 2013).  For a complete discussion of the court’s decision, see the article on our website, “Random Alcohol Testing Policy Found Job-Related, Consistent with Business Necessity, Did Not Violate ADA” (Mar. 18, 2013).

Employers who conduct random alcohol testing – particularly those in industries where employees perform dangerous job duties – are watching this case closely.  Many employers utilize random drug and alcohol testing as a safety measure in dangerous workplaces.  Alcohol tests differ from drug tests, however, because they are medical tests under the ADA, meaning that they must be “job-related and consistent with business necessity.”  The EEOC argued that because alcohol tests are medical tests under the ADA, they are permissible only when there is individualized reasonable suspicion of a particular employee, and that generalized concerns about safety do not satisfy the ADA’s requirements.  The federal district court disagreed, finding that the extremely hazardous environment at U.S. Steel justified the testing, and that random testing serves a “unique deterrent effect.”  The court observed that “to survive a hazardous work environment that includes molten hot coke, toxic waste products, and massive moving machinery, employees must be alert at all times. No level of intoxication is acceptable on the job.”