Drug Testing News

Getting High On Drug Testing

by Rita Risser

At the beginning of the 90's, there was no clear guidance on the law of drug testing, especially in California. Today, that's changed. The law is clear. Applying it is another matter.

Two particularly difficult questions arise when an employer implements drug testing:

1.When is a manager's suspicion of drug use sufficiently reasonable to justify sending the employee for testing?

2.How may an employer lawfully use test results?

Beyond these questions, counsel must encourage their client employers to ask themselves how drug testing fits with their organization's values.

The Established Law

The California Supreme Court resolved most issues last year in its sweeping ruling in the case of Loder v. City of Glendale (1997) 14 Cal.4th 846, 59 Cal.Rptr.2d 696. The Court held that the city could require all job applicants to submit to drug testing. However, suspicionless drug testing of all current employees who were offered promotions was not reasonable under the Fourth Amendment.

Of course, suspicionless or random testing of some current employees has been allowed since two seminal U. S. Supreme Court cases in 1989. Skinner v. Railway Labor Executives Association, 109 S.Ct. 1402 (1989), National Treasury Employees Union v. Von Raab, 109 S.Ct. 1384 (1989) Since then, the courts consistently have upheld federal laws mandating random drug testing for employees in interstate transportation, nuclear power plants, law enforcement and other safety-sensitive positions.

The courts also consistently have upheld the employer's right to send an employee for drug or alcohol testing if management has a reasonable suspicion that the employee is under the influence of drugs at work.

But how do employers prove reasonable suspicion? The vast majority of managers have not been trained to assess whether an employee is under the influence. Can you imagine how much fun plaintiffs' attorneys have cross-examining them? And plaintiffs' attorneys have plenty of opportunities, because most employers bungle reasonable suspicion testing.

According to SmithKline Beecham Clinical Laboratories, last year 73% of employees sent for reasonable suspicion testing came out clean. All of those employees have potential claims for invasion of privacy, intentional infliction of emotional distress, ADA violations and more.

That's Not Reasonable!

An example of the disasters that await employers who attempt reasonable suspicion testing is Kraslawsky v. Upper Deck, 56 Cal.App.4th 179, 66 Cal.Rptr.2d 297 (CA 4, 1997)

Upper Deck had a reasonable suspicion drug testing program. Ms. Kraslawsky was an Executive Secretary. One day, a senior manager saw her sitting with her elbows on her knees, looking down at the ground. When she did not move, he asked her what was wrong and she didn't answer. He then called the HR director and told her that he thought Ms. Kraslawsky might be having "female problems."

The HR director then went to Kraslawsky and observed that her "speech was slurred, that her demeanor was lethargic, that she was swaying, that her eye contact was not there, that it seemed to be deliberate in the answers, it was very controlled and very deliberate." Based on these observations, Kraslawsky was ordered to take a drug test, and when she refused, she was fired.

Both the senior manager and the HR director admitted they had never received formal training on detecting substance abuse. The court also found it significant that Kraslawsky was told to drive herself to the lab for drug testing. After she was fired, she was allowed to drive herself 60 miles home. These facts implied management did not believe at the time that she was truly impaired.

Similarly, the Connecticut Supreme Court ruled earlier this year that an employee who had an attendance problem and was caught stealing could not reasonably be sent for a drug test based on those facts alone. Poulos v. Pfizer, Inc., 244 Conn. 598, 13 IER Cases 1679 (1998)

How Do You Prove Reasonalble Suspicion?

The prudent employer may be thinking the only way to deal with these problems is to send every manager through drug awareness training. As the President of a management seminar company, I'd love to recommend that, but training is not the answer. Nor is bringing in the cops or increasing security.

Instead, employers should forget about drug testing and focus on work performance. Who cares why an employee like Ms. Kraslawsky is non-responsive? The important thing is that she is. Whether she is ill, drunk or stoned is of less concern than protecting her and other employees from harm.

Kraslawsky's employer should have treated this like any other illness on the premises. If she is unable to respond appropriately, have her taken to the local medical clinic. If the doctor, based on medical evidence, suggests a drug test, the employer will certainly be considered at that point to have reasonable suspicion.

So, too, in the Connecticut case, the employer already had the right to fire the employee for stealing. There was no reason to order him to a drug test.

Positive Test - Now What?

Employers initiate drug tests for reasons other than reasonable suspicion. Random, periodic, return from leave, fitness for duty and post-accident tests also are given. The danger area here for employers is when they take action based on positive test results. A 1997 Court of Appeals decision on alcoholism is equally relevant to the issue of drug testing.

In Pettus v. Du Pont, 49 Cal.App.4th 402, 57 Cal.Rptr.2d 46 (1997) Mr. Pettus was an employee with 22 years of service who was advised by his doctor to take a 90-day disability leave for stress. The company required him to be examined by its own psychiatrists to confirm the diagnosis.

The company doctors agreed Mr. Pettus should be given the leave. But they also mentioned to his employer that he had expressed violent thoughts about two of his co-workers, although the doctors said given his background and history, such thoughts were normal letting off steam. The doctors' reported he had admitted that some years before he "almost became an alcoholic," but in their opinion, he did not have a drinking problem. None of them recommended treatment for alcoholism.

Based on this information, the employer hired security guards and ordered Mr. Pettus into a 30-day alcohol rehabilitation program. This was in direct conflict with standard Du Pont policy on handling substance abuse. When he refused to enter rehab, he was fired.

When it's put this starkly, we can predict the court's opinion. The court held that forcing him into a program was an invasion of his right to privacy. If he had a drinking problem, he has the right to deal with it as he wants. The employer's only interest is what happens at work.

This emphasis on a workplace nexus has been established at least since 1987. That's when the U. S. Supreme Court ruled in favor of a papermill worker who was found in the company parking lot in his car, which was filled with marijuana smoke. Later, gleanings of marijuana were found in the upholstery. The Court said, "The assumed connection between the marijuana gleanings found in Cooper's car and Cooper's actual use of drugs in the workplace is tenuous at best." United Paperworkers International Union v. Misco, Inc., 484 .S. 29 at 44 (1987)

Another example of the employer's failure to show a workplace nexus is in a 1996 decision by the Massachusetts Supreme Court. O'Connor v. Commissioner of Employment and Training, 422 Mass. 1007, 664 N.E.2d 440 (1996). The employee was required by policy to have a routine drug test before returning from medical leave of absence. He tested positive for a "morphine-like" substance. Based on this, the employer terminated him for violating the policy which prohibited employees from using, possessing or being under the influence of illegal drugs at work.

The Court held that the drug test was not evidence that the employee used illegal drugs, had illegal drugs, or was under the influence of illegal drugs while at work. He was tested before returning to work. He could have been taking prescription medication.

Handling Drug Testing Positively

The above cases illustrate that it is critical for employers to have fair and effective policies and procedures. But before drafting policies, employers must look at the issue of drug use in the workplace from a systems perspective, and clarify their own values.

Some questions to consider: Do we have a problem? How do we know? What will be the impact on morale? Could it lead to increased turnover? What policies are followed at other area employers? How do we balance trust and respect for employees with our legitimate business interests?

The most important question to answer is this: How should we handle employees who test positive? California Labor Code section 1025 requires most employers to accommodate an employee's voluntary request for time off for rehabilitation. It also permits firing employees for current drug use on the job. But employers may choose to offer employees rehab who test positive for drug use.

From a values perspective, it may be in the best interest of all concerned to allow an employee one opportunity for rehabilitation. If as a result a good employee is saved, the cost is far less than hiring and training a new one.

If an employer does choose to offer the employee the opportunity for rehab, the Pettus case requires that employees have the right to autonomy, to decide about their own health care. The court said in that case the company should have offered the employee a disability leave to pursue whatever options he desired, followed by a fitness-for-duty examination before he returned to work.

How Do You Define Drugs?

Another important question for employers to address is what substances should be included in the policy. In the Massachusetts case, the policy prohibited using, possessing or being under the influence of illegal drugs while at work. That wording is almost identical to the policies of every major employer. However, those policies are in some respects too narrow, and in others too broad.

To broaden, the policy should prohibit prescription and over-the-counter drugs or any other substance that could impair an employee's ability to work.

Conversely, many employers (including the NBA) have narrowed their policies by eliminating testing for low levels of marijuana. One reason for this is the questionable nexus between low levels of marijuana and impairment in the workplace.

For example, of the workers who test positive for drugs by SmithKline Beecham, 59% were for marijuana. However, a positive result for marijuana may indicate only that the employee smoked it days or months earlier. In fact, the U. S. Postal Service, in a study of 4,375 new hires, found there was no significant difference in the success rates of employees who tested positive versus those who tested clean.

Finally, an employer must decide if it is worth the time and expense. Many employers have found that drug testing simply is not cost effective. It costs about $100 for a drug lab test, not including the employer overhead and administration costs. The overall rate of positive tests is 5%. Thus, if an employer sends 100 employees for drug tests, it will cost $10,000 to discover 5 drug users, 3 of whom smoked marijuana.

To avoid this expense, one of our clients has a very simple drug testing program: in all their recruiting material, they emphasize that they drug test. That's the whole program. They don't actually test, but they sure scare away the applicants who don't want to be tested!

Given these policy considerations, there is no such thing as a "one size fits all" policy on drug testing. Any competent employment counsel can recommend specific details for an effective policy and procedure. But this should be done only after the employer has clarified its values.

For citations to all cases mentioned here, go to http://www.FairMeasures.com/category/privacy.html

This article originally appeared in the Employment Law special section of The Recorder legal newspaper on August 24, 1998.

RITA RISSER is an attorney and President of Fair Measures, providing legal information and management seminars to companies that want to implement their values. She is the author of the book, Stay Out of Court! The Manager's Guide to Preventing Employee Lawsuits (Prentice Hall).