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).