Category: Drug Testing
In the case of ADP Direct v. Exxon Mobil Research and Engineering Company (Superior Court of New Jersey A-4806-1OT4 October 26, 2012) the Court claimed that Exxon Mobil may have violated disability law by subjecting plaintiff’s continued employment to random testing, not imposed upon other employees who are not alcoholics.
In 2007 the employee disclosed that she suffered from alcoholism and was seeking treatment. Upon return from that treatment she was required to sign an agreement to submit to random alcohol testing (commonly part of a Last Chance Agreement). She was fired in 2008 after a positive test. The court pointed out that there was no evidence of performance problems, nor was her job safety-sensitive at the time of the test.
While this is most likely going to be appealed, it sends a word of caution. This causes a trap for employers. Because the employee voluntarily disclosed her disability, and there were no performance problems, it would in fact violate the ADA to have her consent to the random testing.
Last Chance Agreements should be enforced with care. To this date I have not seen a court strike down a policy where somebody was caught intoxicated on the job due to reasonable cause but this New Jersey opinion could evidence a shifting in legal opinion.
Here’s the deal: Since 1996 seventeen states and Washington D.C. have passed marijuana laws for medical/personal use. To date all the courts have ruled that on the job use or intoxication is not protected. California, Oregon and Washington State court rulings have said use itself, even if legal, does not prevent an employer from have a no drug policy for hiring or employment. Statutes like Michigan’s explicitly say “nothing in this act shall be construed to require an employer to accommodate the ingestion of marijuana in any workplace or any employee working while under the influence of marijuana.”
Of course, as with a prescription drug where health and safety concerns govern it can be treated like the use of other prescription drugs. I doubt any court will require employers to hire stoner surgeons or crane operators. At least let’s hope not! It appears only the Maryland and Arizona statute specifically allows for use at works. Employers cannot discriminate against patients and caregivers and a positive test for marijuana metabolites is not cause for disciplining or terminating a patient. In a sense you have to catch them intoxicated in the moment, not just in their blood stream. Every one of these laws will be tested in court to find out where their workplace boundaries lie.
To the extent Federal laws such as DOT provisions and government contract drug-free workplace laws apply, they control. The Feds are still reviewing the situation as these laws impact on their ability to control illegal use and sale nationwide.
To keep abreast of these legislation trends here are two great resources:
Of course there are those who wonder what all the fuss is about. Here’s an interesting blog on the smokers view of drug testing for the weed.
Note: Just the millionth reason why employers should have their employee handbooks reviewed by an attorney on an annual basis.
The Equal Employment Opportunity Commission has filed suit against insurer United Insurance Co. of America, accusing it of disability discrimination for withdrawing a job offer to a recovering drug addict in a methadone treatment program.
According to the lawsuit filed in U.S. District Court in Raleigh, N.C., in Equal Employment Opportunity Commission vs. United Insurance Co. of America, Craig Burns applied for a job as an insurance agent and representative at the Raleigh office of Chicago-based United Insurance, a Unitrin Inc. unit that provides life and accident and health insurance.
The insurer extended a job offer, conditional on his passing a drug test.
Mr. Burns is a recovering drug addict who has been enrolled in a methadone treatment program since at least 2004, according to the lawsuit.
His drug test showed the presence of methadone in his system. When United Insurance asked for a copy of his methadone prescription, he provided a letter from his treatment provider explaining his participation in the program. United then withdrew its job offer, according to the lawsuit.
Violation of ADA
The suit filed Tuesday alleges that the job withdrawal was due to Mr. Burns’ disability and violated the Americans with Disabilities Act.
“The effect of the practices complained of…has been to deprive (Mr.) Burns of equal employment opportunities and otherwise adversely affect his employment status because of his disability,” according to the EEOC suit, which seeks back pay, compensation, punitive damages and injunctive relief.
A Unitrin spokeswoman said the company does not comment on ongoing litigation.
Article courtesy of www.businessinsurance.com.
SAMSHA has created a ton of great tools for developing drug testing programs, including their free Hotline. To learn more, go to http://workplace.samhsa.gov/HelpLine/Helpline.html.