The most obvious consequence is termination of the offending employee.  There are, of course, a number of other options, including graduated discipline and employee assistance programs.

 

If it is challenged in court, an employer's decision to terminate an employee based on a positive drug or alcohol test (or refusal to take a test) may be scrutinized on several bases.  Compliance with the employer's disciplinary policy is an important consideration in determining whether an employer can face exposure to liability for an employee's discharge.  In addition, federal and state drug and alcohol testing laws contain various requirements designed to protect the employee's privacy and guard against inaccurate test results.

 

Thus, compliance with these drug testing provisions may determine the legality of disciplinary measures based on a positive test result.  The bottom line, however, is that an employer may terminate an employee for testing positive for drugs or alcohol so long as the termination is consistent with applicable disciplinary policies, and drug and alcohol testing requirements.  Furthermore, although an employer's discretion in this regard is not without limitation, through careful drafting of employment policies employers can retain a rather broad prerogative in determining the appropriate level of discipline.

 

In a recent case (Burbank v. Wyodak Resources Development Corp., No. 99-291 (October 12, 2000),  the Wyoming Supreme Court was called upon to decide whether an employer had the prerogative to immediately terminate an employee who tested positive after showing up at work with alcohol on his breath.  The employee argued that the progressive discipline provision in the employee handbook was contractually binding on the employer, and that his immediate termination violated that provision.  The employer's Positive Discipline policy stated that it had the following goals and objectives:

The policy also specified the following steps in its discipline policy:

Significantly, the employer reserved the right to "accelerate discipline based on the severity" of the offense.  In addition, the employer's Drug and Alcohol Policy stated that if a drug test, based on reasonable suspicion, "proves to be unsatisfactory, the employee will be suspended immediately without pay pending further investigation and may be discharged."

 

Although the court accepted the argument that the handbook was binding on the employer, it held that the Drug and Alcohol Policy provision clearly allowed the employee's immediate discharge. Furthermore, although the Examples of Cause provision of the handbook suggested that reporting to work under the influence of alcohol was cause for discipline, and thus for following the three-step procedure for positive discipline rather than immediately discharging the employee, the Steps of Positive Discipline provision also authorized the employer to accelerate discipline.Implicit in this provision, the court stated, was the authority of the employer to move directly to the third step of the positive discipline procedure - decision-making leave -- which may be followed by termination.

 

In addition to complying with internal disciplinary policies, an employer must have a drug and alcohol policy that complies with applicable state and federal requirements, and the employer must carefully follow mandated procedures.  A number of states require notice to employees of any drug testing policy, and the best practice is to provide such notice, whether required by state law or not.

 

In a recent New York case, the notice given to employees was an important factor in the court's decision to uphold the termination of an employee pursuant to a drug testing policy that required termination of any employee who had two positive test results within ten years, Grippo v. Martin, 257 A.D.2d 952, 686 N.Y.S.2d 118 (3d Dept. 1999).   The court rejected the employee's argument that his termination violated the provisions of the Civil Service Law governing removal and other disciplinary proceedings, noting that the employer negotiated the policy with the employee's union, and the employee had expressly agreed to its terms by signing it.

 

In Garner v. Rentenbach Constructors, Inc., 501 S.E.2d 8 (N.C. App. 1998), rev=d, 515 S.E.2d 438 (N.C. 1999),   the North Carolina Court of Appeals held that an employer was not entitled to summary judgment in a wrongful discharge suit brought by an employee who was terminated following a positive drug test.  Despite the fact that the employer conclusively demonstrated that the employee knew of the policy and his responsibilities under it, the employee successfully countered by showing that the employer had its testing conducted by a laboratory which was not certified as required under North Carolina's drug testing statutes. 

 

Holding that the certification requirement signaled a clear state public policy in favor of accurate and reliable testing, the Court of Appeals ruled that it could not be avoided.  The case was appealed to the North Carolina Supreme Court, however, which held that the employer's failure to use an approved laboratory did not give the employee a valid claim for wrongful discharge absent a showing that, at the time of the testing, the employer knew or even suspected that the laboratory did not qualify as an approved laboratory, or that the employee's discharge based on the positive drug test was for an unlawful reason or a purpose that contravened public policy.

 

In some cases, the fact that a third party has administered the test may safeguard an employer from liability.  In a Texas case, a former employee sued when he was terminated after testing positive for cocaine, Halliburton Co. v. Sanchez, 996 S.W.2d 216 (Tex.App.?San Antonio1999.   The employee presented evidence that his supervisor and the manager's assistant were overheard saying that the employee would not pass the drug test.  The employee also presented evidence that, while he had never used cocaine, the manager's assistant had used cocaine. 

 

Although the court noted that this evidence could support the employee's suspicion that the employer tampered with the urine sample so that it tested positive for cocaine, a mere suspicion was insufficient.  The court held that the evidence was insufficient to support a verdict for the employee on a claim of intentional infliction of emotional distress, especially considering the fact that a third party handled the sample collection.  Furthermore, the employee was unable to produce any evidence that the manager's assistant had a motive to switch specimens or that anyone other than the assistant had an opportunity to switch specimens.

 

An Iowa court rejected an employee's suit alleging that his termination violated the state's statute governing employee drug testing, finding that the employer had complied with the statute's requirements, Pinkerton v. Jeld-Wen, Inc., 588 N.W.2d 679 (Iowa 1998).   The statute, as it existed at the time of the events giving rise to the employee's suit, required an employer to provide substance abuse evaluation and treatment, and prohibited disciplinary action against an employee who successfully completed recommended treatment. 

 

After the employee was convicted for operating a motor vehicle while intoxicated, the employer funded his first evaluation and treatment, and reserved his employment until he was finished with the recommended treatment.  Subsequently, the employee reported to work in an intoxicated state.  A drug test revealed codeine, morphine, and opiate metabolites in his system, and the employer terminated him.  Although the employee claimed that the employer was required to once again allow evaluation and treatment, the court rejected this position, stating that the statute extended such protection only to the first occurrence, not to the second.

 

As the Wyoming Supreme Court's recent decision demonstrates, employment policies should be drafted to allow the employer some discretion in disciplinary decisions.  This discretion should specifically preserve the employer's right to terminate an employee immediately if the employee tests positive for drug or alcohol use, and, in the employer's judgment, immediate discharge is appropriate.  Furthermore, as the other decisions discussed in this article show, compliance with applicable state and federal drug testing requirements is also necessary to avoid liability.

 

Consequently, every employer's drug and alcohol policies should be reviewed frequently to ensure compliance, and all supervisors should receive training regarding the applicable procedures for requesting and conducting drug tests.  For further information on federal and state drug testing policies, and guidance on formulating drug testing and employee assistance policies, see The State by State Guide to Human Resources Law (Panel/Aspen Publishers 2000).

 

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