Potential Perils in the Application of a Drug Testing Policy by Daniel Loras Glynn

20-Dec-2015

There is little question that an employer possesses a strong interest in the establishment of drug and alcohol free work environments.  Not only do such policies serve an employer’s needs to assure a productive and safe work environment for its employees, but the implementation of such policies can also protect an employer from potential liability-creating events for which an employee’s drug or alcohol use may be a contributing cause.  For this reason, many states, including Idaho, have enacted legislation which not only gives guidance to employers with regard to the implementation of procedures relating to drug and alcohol testing policies, but also provides incentives for their implementation.  However, the implementation and enforcement of these policies are not without their peril.  While such statutes may provide certain safe harbors from potential litigation by an aggrieved employee, an employer must utilize such procedures with due regard for the potential privacy rights of its employees lest it find itself inadvertently embroiled in a liability-creating event by the subject employee.

The Idaho Employer Alcohol and Drug-Free Workplace Act (“the Act”) permits an employer to test its employees for the presence of drugs and alcohol, provided such testing is done in accordance with, and with due regard for, the provisions of the Americans with Disability Act[1]  (42 U.S.C.  12101 et seq.). See I.C. § 72-1701.  While an employer’s decision to implement a drug and alcohol policy is purely voluntary[2], I.C. § 72-1701(1), the Act does seek to incentivize the implementation of a compliant policy by providing that an employee who is terminated as a result of a positive drug or alcohol test will be presumed to have committed “misconduct” and be ineligible for unemployment benefits.  I.C. § 72-1708. 

To be in compliance with the Act, an employer must have an express written policy on drug and/or alcohol testing, which policy must be communicated to its employees. I.C. § 72-1705(1) & (3).  If such a policy exists, the Act recognizes the employer’s right to terminate an employee whose test returns a positive result, who refuses to provide a sample for a test, or who attempts to alter a test sample.  I.C. § 72-1707. However, in the event that an employee’s drug or alcohol test returns a positive test result, an employer in Idaho must provide the employee written notice of the test result and provide the employee with an opportunity to explain the test result with a medical review officer or other qualified person.  I.C. § 72-1706(1).   The subject employee is also entitled to request a retest (of the same sample), which may be at the employee’s expense and which retest must occur within seven working days from the first confirmed positive test.  I.C. § 72-1706(2).  It should be noted that in the event the retest results in a negative test outcome, the employer must reimburse the employee for the cost of the retest, compensate for any time suspended without pay, and, in the case of termination, be reinstated with back pay.  Id.

To further encourage the implementation of drug and alcohol testing policies which are compliant with the Act, employers are provided a safe harbor from lawsuits by employees who are terminated for returning a positive test result. The Act provides:

No cause of action arises in favor of any person against an employer who has established a program of drug and alcohol testing in accordance with this chapter, and who has taken any action based on its established substance abuse and/or disciplinary policies, unless the employer's action was based on a false test result, and the employer knew or clearly should have known that the result was in error.

Idaho Code § 72-1711(1).

The Act further provides that where an employee seeks to pursue a claim against an employer based upon a false test, there is a rebuttable presumption that the test result was valid if done in compliance with the Act.  Moreover, the employer is not liable for monetary damages if its reliance on the false test was reasonable and in good faith.  I.C. § 72-1711(2).

The United States District Court for the District of Idaho, confirmed that not only does the Act not provide for any private right of action by an employee against his or her employer for a termination as a result of a positive test result done in compliance with the Act, but also that no implied right of action exists under the Act where an employer possesses a drug and alcohol testing policy but that policy does not comply with the Act.  Anderson v. Thompson Creek Mining Co., 2013 U.S. Dist. LEXIS 63920, 35 I.E.R. Cas. (BNA) 861, 2013 WL 1867349 (D. Idaho May 2, 2013). As the Court explained in a subsequent order on the plaintiff’s motion for reconsideration, “when an employer fails to comply with the Act, the Act simply falls out of the picture, and the employee is left to his common law remedies.”  Anderson v. Thompson Creek Mining Co., 2014 U.S. Dist. LEXIS 33625 (D. Idaho Mar. 12, 2014)  In other words, an employer who implements a drug and alcohol testing policy that is not compliant with the Act does not open itself to potential litigation based on that fact alone, but it loses its entitlement to the benefits of the Act in the form of avoidance of an increased unemployment tax.   

However, this safe harbor contained within Idaho’s Act does not mean that an employer is wholly free of any potential for liability in any case where it takes an adverse employment action which involves, or is the result of, the use of a drug and alcohol testing policy. The Act does not change the at-will status of any employee.  I.C. § 72-1702(3).  Thus, an employer contemplating the termination of an at-will employee should be particularly cautious in the use of a drug or alcohol test as a means to support the termination of an employee, lest the testing be later construed as mere pretext for termination based on other, unlawful grounds.  For example, as it concerns an employer’s perception that an employee may be taking illegal drugs, an employer may find itself caught between the proverbial rock and hard place where such action results in the discovery of an employee whose use of a particular drug is under the direction of and consistent with a use prescribed by the employee’s health care provider.

In this regard, it must be remembered that, under the ADA, while the term “disability” does not include the illegal use of drugs, “the use of a drug taken under the supervision of a licensed health care professional” is not to be considered an “illegal use of drugs.”  29 CFR § 1630.3(a).  Accordingly, an individual who is, for example, taking hydrocodone as part of and consistent with a pain management program directed by his or her doctor, could be considered to possess a disability under the ADA and thus an employer unwittingly finds himself subject to extra considerations regarding the employee’s employment status in order to be in compliance with the ADA. 

However, and perhaps even more troublesome in this context, the ADA also defines disability to include an individual who “is erroneously regarded as engaging in [illegal drug] use, but is not engaged in such use…” 42 U.S.C. § 12114(b)(3).  Thus, in the case of an employee who is perceived to be engaging in behavior that may be consistent with drug addiction, the request of an employer for the employee to submit to a drug or alcohol test may cause such individual to also be considered as possessing a disability under the ADA.

Regardless, in either scenario an employer must tread carefully when its use of a drug and alcohol testing policy implicates an employee’s prescribed use of medications.  By way of example, in Fowler v. Westminster College, 2012 U.S. Dist. LEXIS 133269, 26 Am. Disabilities Cas. (BNA) 1565, 2012 WL 4069654 (D. Utah Sept. 17, 2012), a district court upheld the jury determination that an employer wrongly terminated an employee that it had regarded as having a drug addiction based upon a drug test that revealed the employee’s use of hydrocodone.  The employer had no evidence that the hydrocodone use was in excess of the dosages prescribed by the employee’s physician. Moreover, the court upheld the jury’s determination that despite being regarded by his employer as having an opiate addiction, there was no evidence to support the employer’s assertion that he was not able to perform the essential functions of his job and found the proffered performance-based reasons for his termination pretextual.

Thus, while the proper and consistent implementation of a workplace drug and alcohol policy does provide measures of protection for an employer, it is not without its perils and employers should not be lulled to complacency by any perceived safe harbor from liability.  Potential pitfalls can be created by the use of a drug and alcohol policy to support grounds for termination.  In the case of at-will employees, regardless of the benefits which may be provided by a termination supported by a drug or alcohol test compliant with the Act, the better practice is to avoid its use to seek grounds for termination.  In situations where the drug or alcohol test returns a result indicating the use of prescription medication, such situation should be considered a red flag event in order that any potential ADA implications are addressed. 

__________________________
[1] Providing for an ADA compliant drug or alcohol testing policy, which contains a number of pitfalls in its own right, is beyond the scope of this article.

[2] It should also be noted the purely voluntary nature of employer’s right to implement a drug and alcohol testing policy is confirmed by the fact that the Act prohibits any cause of action “based upon the absence of an employer established program or policy of drug or alcohol testing in accordance with [the Act].”  I.C. § 72-1710(1).