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Employers struggle with employee drug problems, both real and imagined

September 7th, 2013  |  Lorene Park

By Lorene D. Park, J.D.

This past year, many headlines on employee drug use have focused on new state laws on the medicinal use of marijuana. Decisions out this summer, however, reflect a much wider array of concerns that employers should take to heart. These include the overuse of prescription medication, defamation based on false reports of addiction, and more. Wise employers will stay abreast of recent developments, make sure that their drug use policies comply, and train all supervisors and investigators on the importance of even-handed enforcement, maintaining privacy, and ensuring that decisions are grounded in fact and based on business necessity.

Overmedicated. Most cases concerning overmedicated employees seem to involve pain or anxiety medication. For example, in Shirley v Precision Castparts Corp, an employee had long been prescribed Vicodin to manage pain from work-related injuries. He started taking multiple prescriptions from different doctors and, after a near overdose, went on FMLA leave. He twice failed to finish drug treatment programs and was fired under a drug-free workplace policy. Affirming summary judgment for the employer on his FMLA and ADA claims, the Fifth Circuit found that the termination did not violate either law and that he was a “current” drug user, not covered by the ADA’s safe harbor provision.

In another case, an employee became depressed and anxious after his mother died; his doctor prescribed Klonopin (Schummer v Black Bear Distribution, LLC). When the employer learned he was overmedicating himself, it provided FMLA leave and helped him find a physician. Three weeks after he returned, he was observed slurring his words, nodding off, and standing with difficulty. He was fired for violating the employer’s policies and coming to work in an “unfit condition.” Granting summary judgment, the court found the employer had a legitimate reason for firing him and did not violate the FMLA or New Jersey law.

As these cases suggest, the fair, even-handed enforcement of a drug-free workplace policy is generally a legitimate reason for taking an adverse action against an employee, including termination. Indeed, despite all the media hype about the new medical marijuana laws and what they mean for employers, the same holds true in that context as well.

Medical marijuana. Most state medical marijuana laws do not relate directly to workplace drug testing and none require employers to accommodate marijuana use on duty. The ones prohibiting discrimination make exceptions where the level of THC (the active ingredient in marijuana) in the blood is high enough to impair an employee while at work. Significantly, regardless of state law, marijuana use continues to be illegal under federal law, leaving employees who use medical marijuana with little recourse against employers for actions taken based on that use.

For example, in Curry v MillerCoors, Inc, a court dismissed the wrongful discharge claim of an employee who was fired for testing positive for marijuana, even though he had a state license to use medical marijuana, had never used it on the employer’s premises, and was not under the influence at work. A positive test for marijuana, even from medical use, is a legitimate basis for discharge under Colorado law, the court noted. Moreover, the state’s “lawful activities” statute (which prohibits termination based on lawful activity off premises and after hours) did not save the claim because the term “lawful” refers to both state and federal law and the latter prohibits marijuana use. The employee’s disability discrimination claim also failed because there was no allegation that the employer enforced its policy in a disparate manner.

When employers are wrong. While proper enforcement of a drug-free workplace policy can shield an employer from liability, the converse is also true. As illustrated by Williams v FedEx Corp Serv, there are many ways that supervisors can take the wrong steps and, if that happens, an employer may end up paying for defamation, invasion of privacy, or other claims. In the FedEx case, an executive took medical leave for stress after his workload tripled due to reorganization. When his short-term disability was denied, the insurer allegedly informed FedEx that his leave was due to a drug/alcohol related illness and FedEx concluded he had self-reported drug use. It required him to enter treatment and to take 11 drug tests, all of which were negative. The court refused to dismiss his intrusion upon seclusion claim because a reasonable person would find it “highly offensive” to be forced into drug treatment despite the lack of a drug problem.

The executive’s defamation claims also survived against FedEx and the clinic where he had his drug tests. His supervisor allegedly denigrated him, spread false rumors that he tested positive for illegal drugs, and disclosed health information to others. As for the clinic, the executive was twice informed in front of other patients that he had been reported as testing positive in the past. A third time, he was required to do the urine test in the presence of a counselor. This was enough to state a defamation claim. Note that his ADA claim failed, however, because he did not show he had a disability under the Act or was regarded as such. In addition, though the court found it to be a closer question, his emotional distress claim also failed.

School your employees. It should go without saying that employers must school supervisors, investigators, and HR staff on the laws that apply when an employee is suspected of misusing prescription medication or using an illicit substance. Applicable laws vary depending on the circumstances. As far as federal laws, both the FMLA and ADA can apply, particularly if an employee takes leave and/or seeks treatment for an addiction. Note that obligations under the ADA can include making a reasonable accommodation for prescription medication and related side effects. In one case, an employer accommodated the side effects of an employee’s sleeping medication by allowing her one hour of unpaid leave every morning (Murry v General Serv Admin).

There are also Title VII discrimination cases involving the disparate enforcement of drug policies (e.g., Ivie v Exterran Energy Solutions, LP). Other laws that could apply include OSHA (which imposes a general duty to provide a safe work environment); the Drug Free Workplace Act of 1988 (which applies to federal contractors or grantees), and industry-specific regulations (e.g., DOT regulations require drug testing in some instances).

Common law claims are also a significant risk depending on how employers respond to suspected drug use. Anyone involved in an investigation or in decisionmaking should be trained on privacy-related claims such as false light and intrusion upon seclusion claims, as well as defamation, emotional distress, and other claims that can arise in this context. It would not hurt to point out the potential for individual liability. The fear of personally being sued can be a powerful motivator for supervisors and others to take the training to heart.

Policy considerations. When drafting or tailoring your policy to comply with laws applicable in your jurisdiction, consider the following:

  • Focus on promoting a safe, health, and productive environment
  • Follow the bounds of applicable law (use statutory language as necessary) when listing the types of conduct prohibited and the consequences for engaging in it
  • Identify when drug tests may be required (workplace accidents, erratic behavior, other reasonable grounds that are clearly defined in the policy)
  • Consider other standard provisions in drug policies, including standard at-will disclaimers, details on the logistics of a test (where it is done; who pays) and a release that gives the employer consent to receive test results, among other provisions

Decisions should be grounded. In general, make sure the policy is clear and uniformly applied. Require that decisionmakers have a legitimate business reason for taking any adverse action. In one case, for example, a welder who took medication for hand pain survived summary judgment on his ADA claim against a company that withdrew his conditional offer of employment because there was a dispute over whether its drug policy, which precluded narcotic use within eight hours of a shift, was based on business necessity (Huffman v Turner Industries Group, LLC). The court noted that the welder had evidence that he did not experience side effects, as well as statistical evidence that few workplace accidents were actually caused by the medication.

Also insist that supervisors, investigators, and HR reps have a solid basis for any conclusion that an employee has violated a drug policy (e.g., an admission or a positive test result). In light of the FedEx case, it wouldn’t hurt to limit the number of negative results it takes to end the matter (e.g., the court found 11 tests excessive, considering they were all negative). Given the vast potential for liability, every drug-free workplace or substance abuse policy should be reviewed by an attorney before use.

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