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.

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.