Thursday, January 18, 2018

Employee’s refusal to take drug test dooms discrimination claim

Can an employee, terminated for refusing to submit to a “reasonable suspicion” drug test, sue the employer for discrimination?

According to one recent federal district court opinion (and good ol’ common sense), the answer is no.

James Tombeno worked for FedEx for 22 years as a sales executive. At the time of his hire, Tombeno signed an agreement that required him to submit to drug and alcohol testing upon FedEx’s request.

FedEx required Tombeno to submit to a drug screen after his supervisor smelled marijuana in Tombeno’s work vehicle. When Tombeno refused, FedEx fired him.

The court had little difficulty dismissing Tombeno’s claims of discrimination (age and sex), as well as his claims for hostile work environment harassment, retaliation, and breach of contract.

Why did this employer win? Beside the fact the employee refused to take a required drug test, the employer had a policy, to which the employee agreed, that defined when a drug test could could be required and the consequences an employee would suffer upon a failed or refused test.

What are some considerations for your workplace drug testing policy? Here are five thoughts:
  1. What is the scope of your policy? When are employees expected to be drug-free? At work? Away from work? How many strikes are employees allowed (i.e., is your policy zero tolerance)?

  2. Under what circumstances can you test employees? Pre-employment (allowed by the ADA for illegal drugs)? Reasonable suspicion (if you reasonably believe, based on objective factors, that an employee might be under the influence)? Periodic or random (but, note that random does not mean at your whim; you need a process to ensure bona fide randomness)? Post-accident (provided there is a reasonable nexus between the accident and potential impairment)?

  3. What are the consequences for failure? Your policy should expressly state the consequences of a positive drug test, or a refusal to submit to, or complete, a test (i.e., termination of employment).

  4. Do you offer resources for employees upon a failed test? The ADA does not protect employees who are under the influence of an illegal substance while at work. Nevertheless, addiction is an ADA-protected disability. Offering assistance to an addicted employee (EAP services, unpaid time off for rehabilitation) will satisfy an employer’s reasonable accommodation requirements for employee-addicts who are not impaired at work.

  5. Do you ensure confidentiality? Drug-test results are medical records protected under the ADA’s confidentiality requirements, and should be treated as such.

The one thing you should not do is drug test employees without a policy protecting both the act of the drug test itself, and any employment actions you take against employees as a result. 

If you don’t have a workplace drug testing policy, or aren’t sure that yours is up to snuff, I may know an employment lawyer who’d be happy to draft or review for you.