Employee Drug Testing - Privacy Rights

Question 1

Fact Scenario: Employee Shirley enters a drug rehabilitation program and while she completes the detox portion, she checks herself out prior to participating in the second step of the program of treatment that addresses the addiction. She starts using drugs again, goes back into rehab and then checks herself out after a day.

When she goes back to her employer, is she protected under the Americans with Disabilities Act?

What applicable law applies?

Answer 1

Under the Americans with Disabilities Act, a qualified individual who on with or without a reasonable accomodation, can perform the essential functions of the employment position. The ADA EXPRESSLY excludes from the class of “qualified individuals” any employee “who is currently engaging in the illegal use of drugs” at the time that the employer makes an employment decision“on the basis of such use.” This exclusion applies not just to the use of illegal street drugs, but also to illegal misuse of pain-killing drugs controlled by prescription.

SAFE HARBOR: The DRUG-USE EXCLUSION is inapplicable to an otherwise qualified individual who,

1. Has successfully completed a supervised drug rehabilitation program and is NO LONGER engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;
2. is participating in a supervised rehabilitation program and is no longer engaging in such use;
3. is erroneously regarded as engaging in such use, but is not engaging in such use

“Currently engaging” in the illegal use of drugs - includes “sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem (Courts have included weeks or even months preceding as “currently engaging”)

5th Circuit - Shirley v. Precision Castparts Corp. Case - The mere fact that an employee has entered a rehabilitation program does not automatically bring employee under safe harbor nor does employee telling employer about drug use. Holds taht Section 12114(b) Safe Harbor applies only to individuals who have been drug free for a significant period of time. Overall - Courts should look at CASE BY CASE BASIS

Question 2

What is the prima facie case under the ADA?

Answer 2

Prima Facie Case under the ADA requires a Plaintiff to show, that he

1. has a disability
2. was qualified for the job
3. was subject to an adverse employment decision BECAUSE of his disability

Shirley v. Precision Castparts Corp. (5th Cir. 2013)

Question 3

Under federal law, what constitutes “currently engaging” in drug use so as to take you out of the protections of the Americans with Disabilities Act?

Answer 3

“Currently engaging” in the illegal use of drugs - includes “sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem (Courts have included weeks or even months preceding as “currently engaging”)

Question 4

What limitations exists for Texas and Federal law to limit the right of private employers to drug test?

Answer 4

Very limited if no limitation. In the State of Texas here is no legislation that restricts priavte companies from practicing random drug testing in the workplace, as long as employee rights are not violated by company testing practices.

Must becareful of potential claims 1) discrimination (choosing only a protected class to be tested (Ex. Age or Race), 2) invasion of privacy(Forcing an employee to undress or urinate in the presence of others could be a privacy violation), 3) defamatory - False positive that affects employees life (false positive that employer knew was false and didnt do anything) 4) Americans with Disabilities Act

Question 5

What are the new laws in Texas regarding marijuana?

Answer 5

Anything with more than 0.3 percent THC is considered marijuana and still illegal, while anything under that is deemed legal hemp.

Medical Marijuana - The Texas Compassionate Use Program (T.CUP) was established in 2015, providing access to low-THC (.5%) cannabis for those with intractable epilepsy. Earlier this year, the Texas Legislature expanded access to T.CUP by adding the following qualifying conditions: all seizure and epilepsy disorders, multiple sclerosis, terminal cancer, incurable neurodegenerative diseases, ALS, and autism.

Question 6

What is the difference between a private employer and government employer random drug testing?

Answer 6

Government employer - Testing employees without showing some kind of compelling justification violates government employees’ rights to be safe from UNREASONABLE SEARCHES & SEIZURES

Private Employers - does not have searches & seizure issues

Question 7

What are ways that some private employers may be required to drug test?

Answer 7

• Employees are subject to US Department of Transporation mandatory testing guidelines
• Employees working for Employer under certain federal contracts and grants that require a drug-free workplace policies and possibly even to provide for drug testin

Question 8

Does any Texas or Federal law require employer to allow rehabilitation?

Answer 8

No.

Question 9

Can an employer test some but not all employees?

Answer 9

It is legal to test some but not all employees but employer must be careful. Advised to classify it by specific job categories such as All workers taht operate machinery or vehicles subject to drug testing but not clerifcal staff. Or test those whose jobs are inherently risky.

Question 10

What is a “last chance” agreement?

Answer 10

-Not required by law, but some employers provide a last chance agreement for someone who tested positive to have monthly random tests, a year’s probation, and immediate termination for any subsequent positive test result.

Question 11

What if an employee refuses to cooperate in a drug test, can employer force them to?

Answer 11

An employer should never physically force an employee to submit to a search, due to risk of civil and criminal complaints involving,

• assault
• battery
• false imprisonment
• invasion of privacy
• intentional infliction of emotional distress

Advised - Employer could warn them that they would be terminated if they do not participate.

Question 12

Is pre-employment drug testing allowed before you make an offer of employment?

Answer 12

Depends on the test if the employer is subject to the Americans with Disabilities Act,

ILLEGAL DRUGS -if only seeking illegal drugs then it is not considered a medical test and is allowed pre-hire.

LEGAL AND ILLEGAL DRUGS - Considered a medical examination and shall not make inquiries of an employee unless showing such examination or inquiry is job-related and consistent with business necessity.

Question 13

What do the Federal Motor Carrier Safety Administration (FMCSA) and US Department of Transprotation say in published guidance about employees smoking marijuana?

Answer 13

Still ILLEGAL TO SMOKE WEED - One area where employees and employers should be particularly mindful is with respect to positions that are regulated according to federal law. These positions usually involve federal money, federal contractors, and safety sensitive positions that cross state lines. For example, the Federal Motor Carrier Safety Administration (FMCSA) regulates interstate commercial trucking. The FMCSA and the U.S. Department of Transportation have published guidance stating “a person is not physically qualified to drive a [Commercial Motor Vehicle] if he or she uses any Schedule I controlled substance such as marijuana.” 49 CFR §§ 391.11(b)(4) and 391.41(b)(12)) (emphasis added). In other words, even if an employer is based in a state where medical marijuana is medicinally and recreationally legal under state law, federal regulation may prohibit employees from using marijuana products if they drive commercial motor vehicles or engage in other federally regulated professions.

Question 14

What does the TWC expect to see if it will disqualify a claimant from Unemployment Benefits based on a failed drug test?

Answer 14

Must see BOTH TESTS

• initial test
• confirmation GC/MS method

Question 15

How should test results be stored and what are potential consequences for employers that do not keep the test results confidential?

Answer 15

1) Stored in a seperate, confidential medical file (if ADA applies to employer) - but advised all employers definately keep it CONFIDENTIAL
2) Negligent release of test results - could result in legal action over issues such as invasion of privacy, intentional infliction of emotional distress, and defamation.

Question 16

Do employers need to have employees sign a HIPAA form to get the results of the drug test?

Answer 16

Generally yes.

***Also if the employer has to use it with the TWC, then they will want a consent form to allow for employer and testing lab to release the results to the TWC

Question 17

What 5 ELEMENTS are needed by the TWC to overcome a claimant’s sworn denial of drug use and determine the claimant’s positive drug test is MISCONDUCT? (To fight the unemployment claim)

Answer 17

1. A policy prohibiting a positive drug test result, receipt of which has been acknoledged by the claimant;
2. evidence to establish that the claimant has CONSENTED to drug testing under the policy;
3. documentation to establish that the CHAIN OF CUSTODY of the claimant’s sample was maintained;
4. Documentation from a drug testing labratory to establish that an initial test was confirmed by the GC/MS method (BOTH TESTS NEEDED);
5. documentation of the test expressed in terms of a positive result above a stated test threshold.

Question 18

What does Chapter 21 of the Texas Labor Code say regarding drug testing?

Answer 18

Is it similar to ADA as Amended?