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THE LITTLER NATIONAL EMPLOYER LIBRARY

LITTLER ON EMPLOYMENT TESTING:

POLYGRAPHS, MENTAL & PHYSICAL EXAMINATIONS, DRUG TESTING & WORKPLACE SUBSTANCE ABUSE AUTHORS: Dale L. Deitchler Steven D. Dellinger Nancy N. Delogu


ABOUT THE AUTHORS Dale L. Deitchler is a shareholder in the Minneapolis office of Littler Mendelson, P.C., the largest U.S.based law firm exclusively devoted to representing management in labor and employment law. He represents management in a variety of labor law, labor relations and standards, including: labor negotiations; arbitrations; unfair labor practice proceedings before the National Labor Relations Board; and minimum wage and overtime proceedings before the Employment Standards Administration’s Wage and Hour Division of the Department of Labor. Renowned for his knowledge on drug and alcohol testing, Dale also has extensive knowledge of both federal and state Department of Transportation policies and regulations. He counsels clients on a wide variety of employment law issues, offering advice and practical solutions about: the Family and Medical Leave Act and other leaves of absence; discipline and discharge; employment discrimination; employment and non-competition agreements; and unemployment compensation. He also is a contributing author to a number of nationally recognized labor and employment law publications. Stephen D. Dellinger, a shareholder in Littler's Charlotte Rffice, advises and represents employers and management in a broad range of employment law matters and labor issues. His practice focuses on employment-related litigation involving: Title VII; the Americans with Disabilities Act (ADA); the Family and Medical Leave Act (FMLA); the Age Discrimination in Employment Act (ADEA); wage and hour issues; and labor matters under the National Labor Relations Act. He also handles wage and hour and discrimination class and collective actions and routinely appears before federal, state and administrative agencies. In addition to his litigation practice, Stephen briefs employment issues on appeal in state and federal courts. He also prepares and reviews policy and procedure manuals and employee handbooks. Stephen counsels clients on employment-related legal issues, including Title VII, the ADA, the ADEA, the FMLA, the Fair Labor Standards Act, and other federal and state laws and regulations. He also advises and defends retail and hospitality clients with regard to accessibility issues under Title III of the ADA. Additionally, he presents seminars for clients and employer organizations on a variety of employment law topics. Nancy N. Delogu is a shareholder in Littler’s Washington, D.C. office. She defends management in a range of employment disputes. She regularly appears before federal and state courts and administrative agencies, including the Equal Employment Opportunity Commission, and related state and local agencies. She has specific experience with claims involving: Title VII; ADA; the Omnibus Transportation Employee Testing Act; the Older Workers Benefit Protection Act; the Worker Adjustment and Retraining Notification Act; and state drug-testing and drug-free workplace laws. Nancy is a recognized authority on federal and state drug-free workplace and drug-testing issues and has drafted dozens of substance-abuse prevention policies, including Department of Transportation-mandated programs. She also helps DOT-regulated employers comply with regulations and requirements addressing workplace safety and medical certification. She also counsels clients on implementing reductions-in-force that comply with the federal OWBP and WARN acts and similar state statutes. Nancy is a frequent presenter and trainer on harassment avoidance, conducting lawful investigations, and drug and alcohol testing. She has testified before the United States Commission of Civil Rights regarding the ADA and substance abuse. She is former counsel and associate director of the Institute for a DrugFree Workplace.

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COVERAGE Scope of Discussion. The discussion below provides an overview of the common types of applicant and employee testing, including: honesty tests (written, oral, polygraph); aptitude tests; mental and physical skills tests; and other psychological, physical, medical examinations. Drug and alcohol testing, related procedures and requirements, as well workplace substance abuse issues are also covered. Disclaimer. This publication is not a do-it-yourself guide to resolving employment disputes or handling employment litigation. Nonetheless, employers may find the information useful in understanding the issues raised and their legal context. This publication is not a substitute for experienced legal counsel and does not provide legal advice regarding any particular situation or employer or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Although the major recent developments in federal employment and labor law are generally covered, this publication is not all-inclusive and the current status of any decision or principle of law should be verified by counsel. The focus of this publication is federal law. Although some state law distinctions may be included, the coverage is not comprehensive. To adhere to publication deadlines, developments and decisions subsequent to August 1, 2016 are generally not covered.

Š2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED. All material contained within this publication is protected by copyright law and may not be reproduced without the express written consent of Littler Mendelson.

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TABLE OF CONTENTS § 1 EMPLOYMENT TESTING § 1.1 INTRODUCTION § 1.2 EMPLOYMENT TESTING BASICS § 1.2(a) Business Necessity Defense § 1.2(b) Test Validation § 1.3 POLYGRAPHS & LIE DETECTOR TESTS § 1.3(a) Exceptions to the Employee Polygraph Protection Act § 1.3(a)(i) Ongoing-Investigations Exemption § 1.3(b) Administering a Polygraph Test § 1.3(c) Disciplinary Action Based Solely on Polygraph Results Prohibited § 1.3(d) Use of, Acceptance of, Reference to or Inquiries About Polygraph Results Prohibited § 1.3(e) Disclosure of Polygraph Test Information § 1.3(f) Notice to Employees § 1.3(g) Preemption of Other Laws & Agreements § 1.3(h) Enforcement & Penalties § 1.4 HONESTY & INTEGRITY TESTS § 1.4(a) State Law Considerations § 1.4(b) Personality Tests § 1.5 PSYCHOLOGICAL TESTING § 1.6 PHYSICAL EXAMINATIONS § 1.6(a) Physical Examinations for Job Applicants & Current Employees § 1.6(b) Medical Information Must Be Kept Confidential § 1.6(c) Medical Inquiries for Return to Work § 1.6(d) AIDS Testing § 1.7 GENETIC TESTING & GENETIC INFORMATION OBTAINED DURING TESTING § 1.7(a) Title II of GINA § 1.7(a)(i) Case Illustrations: Preemployment Medical Exams § 1.7(a)(ii) Genetic Monitoring & Other Exceptions to Prohibition on Requesting, Requiring or Purchasing Genetic Information § 1.7(a)(iii) Confidentiality of Genetic Information Obtained During Testing § 1.7(b) Title I of GINA: Health Plans & Health Insurance Issuers Prohibited from Requesting or Requiring Genetic Test § 2 DRUG TESTING & LAWS IMPLICATING WORKPLACE SUBSTANCE ABUSE § 2.1 INTRODUCTION § 2.2 DRUG & ALCOHOL TESTING BASICS § 2.2(a) Types of Testing § 2.2(a)(i) Preemployment Testing of Applicants § 2.2(a)(ii) Preassignment Testing § 2.2(a)(iii) Periodic Testing § 2.2(a)(iv) Reasonable Suspicion Testing § 2.2(a)(v) Post-Accident Testing § 2.2(a)(vi) Random Drug Testing § 2.2(a)(vii) Return-to-Work & Follow-up Testing § 2.2(b) Methods of Drug & Alcohol Testing § 2.2(b)(i) Urine § 2.2(b)(ii) Breath § 2.2(b)(iii) Blood § 2.2(b)(iv) Saliva § 2.2(b)(v) Hair § 2.2(b)(vi) Sweat § 2.2(c) Recommended Testing Procedures § 2.3 GOVERNMENTAL REGULATIONS REQUIRING EMPLOYER ACTION § 2.3(a) Omnibus Transportation Employee Testing Act § 2.3(b) FMCSA Regulations § 2.3(b)(i) Prohibitions & FMCSA Testing Requirements § 2.3(b)(ii) Employer Must Request Past Testing & Substance Abuse Information

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§ 2.3(b)(iii) FMCSA Notice & Training Requirements § 2.3(b)(iv) Consequences of Failing Drug/Alcohol Test & Other Drug/Alcohol Violations § 2.3(b)(v) FMCSA Records Retention Requirements § 2.3(c) Interaction with State Laws § 2.4 LEGAL CHALLENGES & RESTRICTIONS ON DRUG TESTING § 2.4(a) Constitutional Challenges by Public-Sector Employees § 2.4(a)(i) Fourth Amendment Challenges § 2.4(a)(ii) Due Process Challenges § 2.4(a)(iii) Equal Protection Challenges § 2.4(a)(iv) Freedom of Religion Challenges § 2.4(b): Privacy Challenges by Public-Sector Employees § 2.4(c) Americans with Disabilities Act (ADA) § 2.4(c)(i) Medical Exams & Inquiries § 2.4(c)(ii) Illegal Drug Use § 2.4(c)(iii) Alcohol Use § 2.4(c)(iv) Prescription Drug Use § 2.4(d) Family and Medical Leave Act (FMLA) § 2.4(e) Title VII of the Civil Rights Act (“Title VII”) § 2.4(f) Federal Drug-Free Workplace Act (DFWA) § 2.4(g) Health Insurance Portability & Accountability Act (HIPAA) § 2.4(h) Fair Credit Reporting Act (FCRA) § 2.4(i) National Labor Relations Act (NLRA) § 2.5 MARIJUANA LEGALIZATION EFFORTS & THE WORKPLACE § 2.5(a) Interaction with Employer Substance Abuse Programs § 2.5(b) Federal Government’s Treatment of State Marijuana Laws § 2.7 ADDRESSING SUBSTANCE ABUSE THROUGH MEANS OTHER THAN TESTING § 2.7(a) Antidrug & Alcohol Policies & Education § 2.7(b) Investigation by Undercover Agents or Drug Dogs § 2.7(c) Electronic Surveillance/Recording of Employee Conversations § 2.7(d) Surveillance of Physical Premises § 2.7(e) Searches of Offices, Desks, Lockers, etc. § 2.8 SUBSTANCE ABUSE: REHABILITATION & PREVENTION § 2.8(a) Providing an Opportunity for Rehabilitation § 2.8(b) Employee Assistance Programs § 3 PRACTICAL GUIDELINES FOR EMPLOYERS § 3.1 POLYGRAPH TESTS: EMPLOYER GUIDELINES § 3.2 HONESTY TESTS: EMPLOYER GUIDELINES § 3.3 PSYCHOLOGICAL TESTING: EMPLOYER GUIDELINES § 3.4 PHYSICAL EXAMINATIONS: EMPLOYER GUIDELINES § 3.5 GENETIC SCREENING: EMPLOYER GUIDELINES § 3.6 DRUG TESTING: EMPLOYER GUIDELINES

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§ 1 EMPLOYMENT TESTING § 1.1 INTRODUCTION Preemployment testing can be an effective means of screening for qualified applicants and monitoring current employees. The different types of tests include: written, oral or polygraphic honesty tests; mental or physical examinations; and pencil and paper, physical aptitude or skills tests. Despite their many benefits, such as screening applicants for necessary skills, the misuse of preemployment testing can violate federal antidiscrimination laws and become a source of liability for employers. Employers must keep in mind their legal obligations with respect to different manners of screening and preemployment testing as well as testing of current employees under federal laws including: Title VII of the Civil Rights Act of 1964 (“Title VII”), the Employee Polygraph Protection Act, the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). An employer should carefully assess the purpose and effectiveness of the tests it conducts and take care that all tests do not disproportionally screen out applicants based on protected characteristics or violate an applicant’s or employee’s rights. In recent years, such testing has been an active area of litigation and remains an area in which employers must be vigilant.1 Drug and alcohol testing may also be an important component of an employer’s screening process and/or ongoing compliance requirements. The discussion below includes an overview of drug testing procedures and requirements as well as substance abuse issues in the workplace.

§ 1.2 EMPLOYMENT TESTING BASICS As with all employment policies, preemployment testing may have an adverse impact on individuals in a protected class. Therefore, employers must be extremely cautious when implementing any testing procedure. A test that has an adverse impact on the employment opportunities of individuals of a particular race, color, religion, sex or national origin by disproportionately screening them out, is unlawfully discriminatory under Title VII unless the test or its component procedures have been validated in accordance with the Uniform Guidelines of Employee Selection Procedures.2 Conversely, if there is no disparate impact on any particular group, a test may be used regardless of validity or job-relatedness, provided that the test is not used unfairly against particular protected individuals or groups.3 Similarly, a test that disproportionately excludes applicants or employees age 40 and over may violate the ADEA unless the employer’s selection procedure is based upon a reasonable factor other than age. 4 An employer that believes its preemployment tests may be unlawfully discriminating against individuals in a protected class should take care when altering those tests or deciding to ignore the results, as such an action could trigger liability towards individuals previously favored by such tests. In Ricci v. DeStefano, the U.S. Supreme Court held that the City of New Haven had unlawfully discriminated against Caucasian and Hispanic firefighters who applied for promotions when it decided to ignore the results of a promotion test that disproportionately screened out African American firefighters. 5 The Court ultimately found that because the City could not demonstrate a strong evidentiary basis that, had it not ignored the test results, it would have been liable under Title VII for using a test which had a disparate impact on African Americans, its actions violated Title VII. 1

See, e.g., EEOC v. Kronos Inc., 2012 U.S. App. LEXIS 23431 (3d Cir. Nov. 15, 2012); M.O.C.H.A. Soc’y, Inc. v. City of Buffalo, 689 F.3d 263 (2d Cir. 2012); Bazile v. City of Houston, 858 F. Supp. 2d 718 (S.D. Tex. 2012). 2 29 C.F.R. § 1607. 3 Moore v. Southwestern Bell Tel. Co., 593 F.2d 607, 608 (5th Cir. 1979). 4 Smith v. City of Jackson, 544 U.S. 228 (2005). 5 557 U.S. 557 (2009).

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§ 1.2(a) Business Necessity Defense Even when a particular test has a disparate impact on a protected class, an employer can avoid liability under Title VII by proving the business necessity defense (i.e., by demonstrating that the test accurately predicts successful job performance). The burden of proof necessary to demonstrate that a particular test predicts successful job performance varies by circuit.6 • The most lenient and widely used test is the manifest relationship test. 7 This test merely requires that employers demonstrate a “manifest relationship” between the challenged job selection test and successful job performance. • Other circuits require that employers prove that their preemployment tests are demonstrably necessary to meet an important business goal for Title VII purposes.8 • The most strict standard is used in the Third Circuit Court of Appeals. The Third Circuit requires that a job selection test measure only the minimum qualifications necessary for successful job performance. 9 Under the Third Circuit’s standard, if an employer tests applicants’ physical abilities, the employer cannot merely claim that the job is physically demanding. Instead, the employer must demonstrate that without the particular physical skill tested (i.e., endurance, lung capacity, etc.), the employee would not be able to perform the job effectively. Additionally, employers must show that their test only measures the minimum skills necessary to perform the job in question, meaning that even the most minimally qualified could pass the test. In other words, employers must show that the test is not being used to screen for only the best candidates.

§ 1.2(b) Test Validation If test validation is required, employers are required to demonstrate that the test meets their circuit’s standard using validated, relevant studies and evidence. “While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under” the EEOC’s Uniform Guidelines on Employee Selection Procedures. 10 6

See EEOC v. Kronos, 620 F.3d 287 (3d Cir. 2010); Michael R. Sarno, Issues in the Third Circuit: Employers who Implement Pre-Employment Tests to Screen Their Applicants, 48 VILL. L. REV. 1403 (2003); David E. Hollar, Physical Ability Tests & Title VII, 67 U. CHI. L. REV. 777 (2000). 7 See Phillips v. Gates, 329 F. App’x 577 (6th Cir. 2009) (applying manifest relationship test to assess disparate impact claim); Association of Mexican-Am. Educators v. California, 231 F.3d 572, 585 (9th Cir. 2000) (using manifest relationship test to evaluate employer’s business necessity defense in disparate impact claim); Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1315 n.10 (10th Cir. 1999) (using manifest relationship test when no safety concerns implicated); NAACP v. Town of East Haven, 70 F.3d 219, 225 (2d Cir. 1995) (mandating manifest relationship between employment practice and test); Zamlen v. City of Cleveland, 906 F.2d 209, 217 (6th Cir. 1990) (following standard that uses manifest relationship test in cases where nature of employment does not involve safety concerns); Davis v. City of Dallas, 777 F.2d 205, 211 (5th Cir. 1985) (applying manifest relationship standard); Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir. 1971) (adopting manifest relationship standard). 8 See Bew v. City of Chicago, 252 F.3d 891, 894 (7th Cir. 2001) (outlining standard for business necessity defense, using demonstrably necessary standard); Anderson v. Zubieta, 180 F.3d 329, 342 (D.C. Cir. 1999) (employing demonstrably necessary standard for disparate impact cases); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1118–19 (11th Cir. 1993) (employing demonstrably necessary standard); Banks v. City of Albany, 953 F. Supp. 28, 35 (N.D.N.Y. 1997) (adopting demonstrably necessary standard). 9 See Lanning v. SEPTA, 181 F.3d 478 (3d Cir. 1999); see also Michael R. Sarno, Issues in the Third Circuit: Employers Who Implement Pre-Employment Tests to Screen Their Applicants, 48 VILL. L. REV. 1403, 1413–19 (2003) (discussing the four tests used by the various circuits and discussing Third Circuit test in detail). 10 EEOC, Fact Sheet on Employment Tests & Selection Procedures, at 5 (Sept. 23, 2010) (emphasis added) (referring to the EEOC’s Uniform Guidelines on Employee Selection Procedures, codified at 29 C.F.R. pt. 1607 (1978)).

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Validation studies must be conducted in a professionally acceptable manner, preferably by a professional that is familiar with the EEOC’s Uniform Guidelines and other applicable legal principles. The Uniform Guidelines outline three types of validation studies for three different categories of tests: (1) a criterionrelated study through which it may be shown by empirical data that the test may predict, or is significantly correlated with, important elements of the work behavior; (2) a content-validation study showing that the content of the test itself is representative of important aspects of performance on the job; and (3) a construct study showing that the test measures the degree to which candidates have identifiable characteristics important for successful job performance. 11 The validation study appropriate for a particular test is determined by the type of test administered. For example, a typing test for a typing position would be evaluated pursuant to a content-validation study. On the other hand, a personality test for a sales position would be validated by a construct study because the test measures characteristics important for successful job performance, including, for example, the ability to communicate with people—obviously a desirable quality in a sales employee. Because of the highly technical nature of test validation, courts have struggled to strike some balance between protecting the rights of individuals excluded from employment by tests that are not job related and allowing employers to conduct reasonable testing. For example, it can be extremely costly to develop a test that complies in its entirety with the Uniform Guidelines. Thus, while the courts have indicated that the Uniform Guidelines are to be given weight in determining whether validation is proper, they have also noted that careful and appropriate deviations from the Uniform Guidelines may be acceptable if based upon a legitimate reason, such as cost. Under no circumstances, however, will the general reputation of a test or other selection procedure, its author, its publisher or casual reports of its validation be accepted in lieu of actual validity. Specifically, assumptions of validity based on a procedure’s name or descriptive labels, promotional literature, testimonial statements, credentials of sellers, users and consultants, or other nonempirical and anecdotal accounts of selection do not establish the validity of a test.12 An employer may use a test before it is validated as long as the employer: 1. has substantial evidence of validity available; and 2. has in progress, when technically feasible, a study designed to produce the additional evidence necessary for a finding of validity within a reasonable time period.13 As mentioned above, a test need not be technically validated under the Uniform Guidelines unless the selection procedure has an adverse impact, as evidenced by statistical disparities, on the employment opportunities of any race, sex or ethnic group.

§ 1.3 POLYGRAPHS & LIE DETECTOR TESTS The federal Employee Polygraph Protection Act imposes severe restrictions on the use of lie detector tests, effectively eliminating the use of polygraph testing as a preemployment screening mechanism.14 The law bars most private-sector employers from requiring, requesting or even suggesting that an employee or job applicant submit to a polygraph test and from using or accepting the results of such a test. It further prohibits employers from disciplining, discharging or discriminating against any employee 11 12 13 14

29 C.F.R. §§ 1607.5, 1607.14. 29 C.F.R. § 1607.9. 29 C.F.R. § 1607.5. 29 U.S.C. §§ 2001–2009; see also Harmon v. C.B. Squared Servs. Inc., 624 F. Supp. 2d 459 (E.D. Va. 2009).

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or applicant: (1) for refusing to take a lie detector test; (2) based on the results of such a test; and/or (3) for taking any actions to preserve employee rights under the law. Initially, it is important to note that the Employee Polygraph Protection Act prohibits only mechanical or electrical devices, not paper-and-pencil tests, chemical testing or other nonmechanical or nonelectrical means that purport to measure an individual’s honesty. (Chemical testing is specifically excluded from the definition of lie detector tests so as to affirmatively permit the use of medical tests to determine the presence of drugs or alcohol in an individual’s bodily fluids. For more information on drug testing, see § 2.) Most states have laws that mirror the federal law. Some of these state laws place greater restrictions on testing by prohibiting lie detector “or similar” tests, such as pencil-and-paper honesty tests. Massachusetts, for example, specifically prohibits written honesty examinations. 15

§ 1.3(a) Exceptions to the Employee Polygraph Protection Act The Employee Polygraph Protection Act contains several limited exceptions to the general ban on polygraph testing, one of which permits the testing of prospective employees of security guard firms. To qualify for the security firm exemption, however, the employer’s primary business must consist of: providing armored car personnel; persons who design, install and maintain security alarm systems; or other uniformed or plainclothes security personnel. Thus, a security guard employed by an employer not in the business of supplying security services would not fall under this exemption. There is a second exemption for employers that manufacture, distribute or dispense controlled substances. The third exception, and the only one applicable to most private employers, permits any covered employer to test current employees reasonably suspected of involvement in a workplace incident that resulted in economic loss or injury to the employer’s business.

§ 1.3(a)(i) Ongoing-Investigations Exemption Most employers may lawfully request following conditions:

an employee to submit to a polygraph test only under the

1. the employer is engaged in an ongoing investigation involving economic loss or injury to the employer’s business; 2. the employee to be tested had access to the property in question; 3. the employer has a reasonable suspicion that the employee was involved in the incident; and 4. the employee receives the notice and information required under the Employee Polygraph Protection Act. For example, the Eleventh Circuit Court of Appeals held that summary judgment was properly entered in favor of an employer on an employee’s Employee Polygraph Protection Act claim. In Cummings v. Washington Mutual, the employer asked the employee to submit to a polygraph test in connection with an ongoing investigation involving the disappearance of approximately $58,000 from the branch bank that the employee managed. 16 The court determined that the employer had a reasonable suspicion17 that the 15

MASS. GEN. LAWS ch. 149, § 19B. 650 F.3d 1386 (11th Cir. 2011). 17 Reasonable suspicion under the Employee Polygraph Protection Act means “an observable, articulable basis in fact which indicates that a particular employee was involved in or responsible for an economic loss.” 29 C.F.R. § 16

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employee was involved. In support of that determination, the court cited evidence that the employee and those under his supervision had repeatedly violated a policy designed to prevent losses of cash. The employer also produced evidence that the employee had the opportunity to steal funds, supporting the inference that the employee was actually capitalizing on that opportunity. Employers must be aware, however, that the only acceptable test in this situation is the polygraph test. Use of any other mechanical or electrical honesty testing device will be deemed a violation of the law, even if the employer meets all of the other requirements of the exemption.18 Further, the polygraph test must be administered in connection with an ongoing investigation of economic loss or injury and, thus, use of a polygraph to first determine whether or not a theft occurred.19 Additionally, employers should note that the loss being investigated must be the employer’s own loss, not a loss of their employees or other related loss. As defined by federal regulation, “[i]t is the business of the employer which must suffer the economic loss or injury. Thus, a theft committed by one employee against another employee of the same employer would not satisfy the requirement.” 20 This distinction becomes especially challenging for employers where a small entity, like a family partnership or limited liability corporation, makes it difficult to distinguish between what a partner owns and what the company owns. Additionally, at least 48 hours before the test, the employer must provide the employee to be examined with a statement, in plain language that the examinee can understand, fully explaining the specific incident or activity under investigation and the basis for testing the particular employee. The notice must, at a minimum, identify the specific economic loss or injury to the business of the employer, describe with particularity the employee’s access to the property that is the subject of the investigation, describe in detail the basis of the employer’s reasonable suspicion that the employee was involved in the incident or activity under investigation 21 and include the signature of a person (other than the polygraph examiner) authorized legally to bind the employer. Furthermore, the employer must retain a copy of all such statements for at least three years.

§ 1.3(b) Administering a Polygraph Test In addition to the above-listed prerequisites, employers must adhere to certain procedural requirements. During the initial pretest phase, the examinee must be given advance notice of the date, time and location of the test and must be informed of the right to obtain and consult with counsel or an employee representative. The employee must be provided with a notice explaining the physical operation of the polygraph machine and the instruments involved in the test, including descriptions of any observations (e.g., use of two-way mirrors) or recordings to be made by the employer during the test. Before the test is administered, the employee must also be apprised of the fact that he or she need not submit to the test as a condition of continued employment, that any statement made during the exam can be used as evidence to 801.12(f)(1). Thus, the exemption was held inapplicable where there was no particularized suspicion and all employees were examined. See Campbell v. Woodard Photography, Inc., 433 F. Supp. 2d 857 (N.D. Ohio 2006). 18 See, e.g., Long v. Mango’s Tropical Cafe, Inc., 972 F. Supp. 655 (S.D. Fla. 1997) (court upheld validity of restaurant owner’s use of polygraph test administered by law enforcement since the intent and purpose of the statutory provisions had been met); see also Veazey v. Communications & Cable, Inc., 194 F.3d 850 (7th Cir. 1999) (employer’s request that employee suspected of leaving a threatening anonymous message on a coworker’s voicemail read a verbatim transcript of the message into a tape recorder could fall within the statutory definition of “lie detector” because it could be used in conjunction with a voice stress analyzer or similar device to gauge employee’s truthfulness); Watson v. Weekends Only, Inc., 26 Individual Empl. Rts. Cas. (BNA) 498 (E.D. Mo. 2007) (voice stress analysis is a “lie detector” for purposes of the Employee Polygraph Protection Act). 19 29 U.S.C. § 2006(d)(4)(A). 20 29 C.F.R. § 801.12(c)(3). 21 Literal compliance with the provisions of 29 U.S.C. § 2006(d) is the only way an employer can qualify for the exemption because access or opportunity, standing alone, do not constitute a basis for reasonable suspicion. See Polkey v. Transtecs Corp., 404 F.3d 1264 (11th Cir. 2005); Wolfe v. Tobacco Exp. II, Inc., 26 F. Supp. 3d 560 (S.D. Miss, 2014) (no reasonable suspicion where employer could not articulate its reasons for suspecting employee in theft, as no “eyewitnesses, video surveillance, or business records” suggested employee was culpable).

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support disciplinary action, the legal rights and remedies permitted by the Act if the provisions are violated, and any limitations imposed on the employer by the Act. Moreover, the examinee must be provided with all the questions to be asked on the exam and must be told of the right to terminate the exam at any time. Throughout the actual testing phase, the testing examiner is barred from asking any questions that were not presented in writing prior to the test for review by the examinee. Furthermore, employers are prohibited from permitting anyone other than a qualified examiner to administer the test. Additionally, the exam must last at least 90 minutes to ensure that there are a sufficient number and variety of questions and responses to accurately analyze the examinee’s response pattern and to avoid the accuracy problems involved in using cursory exams. The post-test phase refers to any questioning or other communication with the examinee following the polygraph exam, including a review of the test results with the examinee. Before an employer may take adverse employment action based on the results of a polygraph exam, it must interview the employee on the basis of the test results. Additionally, the examinee is entitled to a copy of the questions and charted responses from the test, along with the examiner’s opinions or conclusions regarding the test. The examiner must issue such opinions and conclusions in writing based solely on an analysis of the polygraph test charts. Examiners are barred from including conclusions and opinions that are not relevant to the purpose and stated objectives of the test and from making recommendations concerning the employment of the examinee. Moreover, the examiner is required to retain all data, interpretations, charts and opinions relating to each test for a minimum of three years. Any employee who exercises his or her right to terminate the test or to decline the test for medical reasons with sufficient supporting evidence shall be subject to adverse employment action only on the same basis as one who refuses to take a polygraph test, as described below.

§ 1.3(c) Disciplinary Action Based Solely on Polygraph Results Prohibited Neither polygraph test results nor an employee’s refusal to submit to an exam administered as part of an ongoing investigation of economic loss to the company can provide the sole basis for discharge, discipline, a refusal to promote or any other form of adverse employment action. 22 Instead, an employer 23 is required to provide additional supporting evidence prior to taking such action. Additional supporting evidence is defined as evidence indicating that the employee had access to the missing or damaged property that is the subject of an ongoing investigation, and evidence leading to the employer’s reasonable suspicion that the employee was involved in the incident or activity under investigation, or admissions or statements by an employee before, during or following a polygraph examination. 24 Moreover, analysis of a polygraph test chart or refusal to take a polygraph test may not serve as a basis for adverse employment action, even with additional supporting evidence, unless the employer observes all the requirements incident to testing as described above.

§ 1.3(d) Use of, Acceptance of, Reference to or Inquiries About Polygraph Results Prohibited In addition to the Employee Polygraph Protection Act’s prohibition on disciplinary action based solely on 22

29 U.S.C. § 2002(3). In analyzing claims for violation of section 2002(3), courts apply the same proof schemes as under other federal employment statutes including both the “pretext” and “mixed-motive” frameworks described in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), respectively. See Worden v. SunTrust Banks, Inc., 549 F.3d 334, 342–43 (4th Cir. 2008) (discussing application of both the “pretext” and “mixed-motive” frameworks to a claim under section 2002(3)). 23 See, e.g., Worden v. SunTrust Banks, Inc., 549 F.3d 334 (4th Cir. 2008). 24 29 U.S.C. § 2006(d).

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polygraph test results, the Act also makes it unlawful for an employer “to use, accept, refer to, or inquire concerning the results of any lie detector test of any employee or prospective employee.� 25 Under this provision, if an employee takes a polygraph test at the request of, and administered by, law enforcement authorities as part of a criminal investigation, an employer may not receive any information from the authorities regarding the results of the polygraph.26 An employer would violate this prohibition of the Act even if it does not take any adverse action against the employee based on the polygraph results.27 The Fourth Circuit Court of Appeals has considered the definition of accept under section 2002(2) of the Act. 28 In order to accept polygraph test results for purposes of section 2002(2), an employer must do 29 more than “passively receive� those results. As the court explained, the ordinary meaning of the word accept requires more than mere receipt. Rather, “acceptance� connotes receipt “with approval or satisfaction� or receipt “with intent to retain.�30 Accordingly, where the results of a polygraph test are, for example, announced by a law enforcement officer in the presence of a manager of the employer or communicated by the employee to the employer, the employer has not “accepted� those results in violation of section 2002(2). 31 Even if the polygraph test results were initially obtained in this way, however, an employer would still violate section 2002(2) by using or referring to the results and would violate section 2002(3) by taking disciplinary action against the employee based solely on those results.32

§ 1.3(e) Disclosure of Polygraph Test Information The Employee Polygraph Protection Act prohibits employers or examiners from disclosing any information obtained from a polygraph test, with a few specific exceptions. The polygraph examiner may disclose information developed during the exam to: (1) the examinee or any person designated in writing by the examinee; (2) the employer that requested the exam; or (3) a court, governmental agency, arbitrator or mediator that obtains a court order.33 The employer is authorized to disclose such information to an appropriate governmental agency without court order only when the information disclosed is an admission of criminal conduct. In 2013, the Sixth Circuit Court of Appeals issued an opinion addressing disclosure of polygraph examination results. In Bass v. Wendy’s of DowntownInc., an employee resigned, rather than be terminated, after a workplace complaint against him was substantiated.34 He then filed a charge with the Ohio Civil Rights Commission. In its response to the charge, the company disclosed results from a polygraph examination taken by the former employee. He then brought suit under the Employee Polygraph Protection Act, alleging a violation based on the disclosure of polygraph examination results 25

29 U.S.C. § 2002(2). Worden v. SunTrust Banks, Inc., 549 F.3d 334 (4th Cir. 2008) (reversing the trial court’s grant of summary judgment on employee’s section 2002(2) claim where employer learned results of polygraph from police, who administered the test as part of an investigation into a bank robbery). 27 549 F.3d at 344–47 (discussing section 2002(2), concluding that Congress intended section 2002(2) to be separate and apart from the discharge provisions of section 2002(3) and holding that employee could proceed with claims under section 2002(2) for “use� and “reference to� polygraph test results despite failure of claims under section 2002(3)). 28 549 F.3d at 344–47. 29 549 F.3d at 345–46 (rejecting 29 C.F.R. § 801.4(c), which provides: “The receipt by an employer of information from a polygraph test administered by police authorities pursuant to an investigation is prohibited by § 2002(2).�). 30 549 F.3d at 345–46 (quoting BLACK’S LAW DICTIONARY 12 (5th ed.1979) for definition of “accept�). 31 549 F.3d at 345–46. 32 549 F.3d at 344–47. 33 29 U.S.C. § 2008(c). 34 526 F. App’x 599 (6th Cir. 2013). 26

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and an employment claim based on denial of a promotion after the polygraph examination had been conducted. The Sixth Circuit affirmed the district court’s grant of summary judgment to the company on the alleged disclosure violation because the former employee had not shown any direct damages flowing from that violation itself, which had been technical in nature.35

§ 1.3(f) Notice to Employees Employers are required to post a notice informing employees and prospective employees of their rights under the Employee Polygraph Protection Act in a prominent and conspicuous place customarily used to display such notices. A copy of the notice will be sent to employers by the U.S. Department of Labor (DOL) upon request or may be obtained from local offices of the Wage and Hour Division of the DOL.

§ 1.3(g) Preemption of Other Laws & Agreements The Employee Polygraph Protection Act provides that state or local laws and collective bargaining agreements that provide at least as much protection for employees are not preempted. Some states, for example, prohibit the use of polygraph tests in all or virtually all circumstances, even those where a test would be permissible under the federal Act. 36 Additionally, some states allow employees to recover punitive damages if the employer requires a polygraph test despite knowing the test is prohibited by applicable law.37 Moreover, employee rights under the Act may not be waived, either voluntarily or involuntarily, by contract or otherwise, except as part of a written settlement to a pending action or complaint under the Act, agreed to and signed by the parties.

§ 1.3(h) Enforcement & Penalties The DOL is responsible for enforcing the Employee Polygraph Protection Act and is empowered to make investigations and inspections, require employers to keep records, issue subpoenas and fine employers that violate the Act. As a practical matter, however, the DOL has not pursued violations vigorously. Employers that violate the Employee Polygraph Protection Act are subject to a civil penalty in an amount not to exceed $10,000 per violation. Such a fine may be assessed against any employer for requiring, requesting, suggesting, or causing a prospective employee to take a polygraph test or using, accepting, referring to, or inquiring about the results of any polygraph test of any employee or prospective employee, other than as provided in the above exemptions. Furthermore, employers that take adverse action or discriminate in any manner against any employee or prospective employee on the basis of the employee’s or prospective employee’s refusal to take a lie-detector test, other than as provided above, will be subject 35

526 F. App’x at 602. See, e.g., states prohibiting use of lie detector tests in the employment context, except for the employment of law enforcement officers (ALASKA STAT. § 23.10.037; DEL. CODE. ANN. tit. 19, § 704 ; HAW. REV. STAT. §§ 378-26 to 378-27; IOWA CODE § 730.4 (including employees of law enforcement agencies)); states prohibiting use of lie detector tests in the employment context, except for government employees (CAL. LAB. CODE § 432.2; CONN. GEN. STAT. § 31-51g; D.C. CODE § 32-902; MD. CODE. ANN. LAB. & EMPL. § 3-702); states prohibiting use of lie detector tests in the employment context (IDAHO CODE § 44-903; MASS. GEN. LAWS ch. 149, § 19B; MINN. STAT. § 181.75; MONT. CODE ANN. §§ 39-2-303, 39-2-304; OR. REV. STAT. § 659-840; R.I. GEN. LAWS § 28-6.1-1); states prohibiting use of lie detector tests in the employment context, except for employees involved in employment related to dangerous or controlled substances (N.J. STAT. ANN. § 2C:40A-1 (except for employees directly involved in the manufacture, distribution or dispensing of legally distributed controlled dangerous substances); 18 PA. CONS. STAT. ANN. § 7321 (except for employees or other individuals who dispense or have access to narcotics or dangerous drugs); W. VA. CODE § 21-5-5b (except for employees or applicants who would have direct access to the manufacture, storage, distribution or sale of any controlled substance)); states prohibiting use of lie detector tests in the employment context, except for the employment of law enforcement officers, persons involved in manufacture, distribution or dispensing of controlled substances, and persons in sensitive positions directly involving national security (WASH. REV. CODE § 49.44.120). 37 See, e.g., Bucko v. First Minn. Sav. Bank, F.S.B., 452 N.W.2d 244 (Minn. Ct. App. 1990), aff’d in part and rev’d in part, 471 N.W.2d 95 (Minn. 1991). 36

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to a penalty. Moreover, employees or applicants that have been unlawfully subjected to a polygraph test or that are otherwise adversely affected by an employer’s violation of the Employee Polygraph Protection Act may bring a civil suit within three years of a violation. The employer could be required to reinstate or promote the employee and also pay back wages, and benefits and possibly punitive damages. A court finding that an employer violated provisions of the Act may also award the prevailing employee his or her reasonable costs, including attorneys’ fees. Whether punitive damages may be awarded under the Employee Polygraph Protection Act is an unsettled, but emerging, question. The statute itself does not expressly authorize the award of punitive damages. However, in legislative history, a joint statement of the House and Senate conferences addressing the bill that would later become the Employee Polygraph Protection Act reads, “[t]he conferees intend that the enforcement provisions are not to be construed as a limitation upon private actions being brought under current law. Nothing in the Act is intended to limit the courts in granting any and all remedies currently available.” 38 It is unclear whether a court would give weight to the legislative history in light of the absence of any express statutory authorization.

§ 1.4 HONESTY & INTEGRITY TESTS The Employee Polygraph Protection Act effectively forces employers to use alternative means to test for honesty in the job application process. One of these alternative methods is paper-and-pencil honesty testing, also sometimes referred to as “integrity testing.” The most popular form of these written paperand-pencil examinations purports to assess the honesty or integrity of an applicant by quantifying the applicant’s self-perceptions through a series of questions directed at attitudes toward theft and personal experiences with dishonesty. A second form of these examinations seeks to gain insight into honesty or integrity by asking questions about more general concepts, like reliability and thrill-seeking. Through the use of these tests, their authors contend, an employer can often avoid hiring employees predisposed to honesty-or integrity-related misconduct, such as theft. Honesty or integrity tests generally include a large number of questions that attempt to increase the test’s reliability. Many questions are designed to isolate dishonest behavioral tendencies and the attitude of the test taker towards punitive responses to dishonesty. A profile of the test taker is compiled from the responses, which generally are in a multiple-choice, true-false and yes-no format. Under some variations, an evaluation of the individual’s profile then is obtained by comparing his or her answers to the profiles of persons who have been independently judged honest or trustworthy or dishonest. The results are utilized as a predictor of an applicant’s on-the-job honesty and integrity by purportedly identifying individuals whose psychological profiles are consistent with others having a predisposition towards certain misconduct.

§ 1.4(a) State Law Considerations For many employers, the use of paper-and-pencil honesty or integrity tests began in response to the enactment of the federal Employee Polygraph Protection Act in 1988. However, the tests had been in use previously because of dissatisfaction with the predictive value of polygraph and other examinations. States have taken several different paths in attempting to regulate this type of test. Some state legislatures and courts have concluded that the privacy interests of employees and applicants require that honesty or integrity tests should be treated the same as polygraph tests and be either heavily regulated or forbidden. For example, at least two states—Massachusetts 39 and Rhode Island 40—include 38 39 40

H.R. Conf. Rep. 100-659, 1988 U.S.C.C.A.N. 749, 752 (1988). MASS. GEN. LAWS ch. 149, § 19B. R.I. GEN. LAWS §§ 28-6.1-1 to 28-6.1-4.

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written honesty tests within the statutory definition of lie detector. As a result, the use of written honesty tests is completely forbidden in Massachusetts. In Rhode Island, an employer can give an employee a written honesty test; however, the results of that test cannot be used as the primary basis for an employment decision. Relatedly, the Wisconsin Court of Appeals held that a written test used to evaluate an employee’s psychological profile in response to theft at an employer’s warehouse was not an unfair honesty test within the meaning of Wisconsin Fair Employment Act because the test did not measure the physiological responses of the subject of the test. 41 Several other states define the term lie detector in such a way that written honesty or integrity tests may— or may not—fall within the scope of the statute. These statutes typically refer to a lie detector, polygraph or “similar test.” 42 In the vast majority of these states, courts have not considered whether a written honesty test is a “lie detector” within the meaning of these statutes. At least two state supreme courts have considered this issue, however, and concluded that a written honesty or integrity test is not a “similar test” to a lie detector because it does not measure physiological changes.43 It remains unclear whether written honesty or integrity tests are permissible in a number of states. Even in states where employers can use written honesty or integrity tests, employers must ensure that the specific test they use has been validated in accordance with the U.S. Equal Employment Opportunity Commission’s Uniform Guidelines on Employee Selection Procedures.44

§ 1.4(b) Personality Tests Some employers have turned to personality tests as a way to find those applicants who would be the best fit with the corporate culture. While assessing an applicant’s personality traits such as propensity for honesty or ability to get along with others is generally permissible, conducting a psychological examination of an applicant could reveal protected disability related information. 45 The EEOC has issued guidance regarding such tests finding these tests are not unlawful so long as they are not medical tests and are designed to measure honesty, tastes and habits.46 For example, the EEOC has determined that the Predictive Index 47 complies with its guidelines because it is a “free-choice tool,” meaning that individuals choose the words that best describe themselves as opposed to being limited by multiple-choice answers. In determining if a test is truly a “personality” test (versus a medical examination), the EEOC lists several factors. These factors include whether the test is administered and/or interpreted by a medical professional or whether the test measures an individual’s psychological responses to performing a particular task. 48 Nonetheless, in 2011, the Rhode Island ACLU filed a complaint with the Rhode Island Commission for Human Rights against an employer for using a personality test, which the ACLU, and ultimately the EEOC, viewed as discriminatory. 49 Courts may also rely on the EEOC’s factors to determine that a purported personality test is in fact a 41

Pluskota v. Roadrunner Freight Sys., 524 N.W.2d 904 (Wis. Ct. App. 1994). See, e.g., MD. CODE ANN., LAB. & EMPL. § 3-702 (prohibiting use of “lie detector or similar test”). 43 Pluskota v. Roadrunner Freight Sys., Inc., 524 N.W.2d 904 (Wis. Ct. App. 1994); State by Spannaus v. Century Camera, Inc., 309 N.W.2d 735 (Minn. 1981). 44 29 C.F.R. pt. 1607. 45 See, e.g., Thompson v. Borg-Warner Protective Servs. Corp., 1996 U.S. Dist. LEXIS 4781 (N.D. Cal. Mar. 12, 1996) (test that examines personality traits is not a medical examination). 46 EEOC, Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (Oct. 10, 1995). 47 http://www.predictiveindex.com/the-predictive-index. 48 EEOC, Enforcement Guidance: Disability Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) (July 27, 2000). 49 Eve Tahmincioglu, Employers Turn to Tests to Weed out Job Seekers, Aug, 15, 2011, available at http://today.msnbc.msn.com/id/44120975/ns/business-personal_finance/. 42

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medical examination, regardless of the employer’s intent in conducting the test.50 Thus, employers should be sure to carefully review preemployment personality tests and use such tests with caution.51

§ 1.5 PSYCHOLOGICAL TESTING As with other forms of employment testing, both federal and state law regulate psychological testing of employees. Under federal law, the Americans with Disabilities Act (ADA) governs psychological testing of employees. 52 Several courts have held that preemployment psychological testing is a form of medical examination subject to the ADA. For example, in Karraker v. Rent-A-Center, Inc., 53 the Seventh Circuit Court of Appeals considered whether the company’s pre-offer administration of the Minnesota Multiphasic Personality Inventory (MMPI) violated the ADA. The MMPI measures a job applicant’s personality traits, but also can be used to diagnose certain psychiatric disorders. Because the ADA prohibits pre-offer medical examinations and disability-related inquiries, the court had to decide whether the MMPI fit the ADA’s definition of a “medical examination.” Turning to the EEOC guidelines, the Seventh Circuit found that the MMPI is designed to reveal mental illness and has the effect of screening out employees with a mental disability whether it is used as a medical exam or a personality test. Therefore, despite the company’s use of the MMPI only as a personality test, the court held that the test amounted to a preemployment medical examination in violation of the ADA. (For further discussion of issues related to psychological testing under the ADA, see LITTLER ON DISABILITY IN THE WORKPLACE.) Psychological testing in the employment arena has also been attacked by public employees as an unconstitutional invasion of their privacy. In considering these claims, courts have reached sometimes inconsistent conclusions. For example, in McKenna v. Fargo, the court held that questions on a psychological test administered to firefighter applicants concerning religious, political and social beliefs, sexual preferences, and familial relationships did not violate any constitutional or privacy right.54 The court found the tests useful in identifying applicants whose emotional makeup makes them high-risk candidates. Additionally, the court held that the tests did not violate the firefighters’ rights to freedom of belief and that the state’s compelling interests justified any intrusion on their constitutionally based privacy interest. Several states also regulate the use of psychological testing by employers. Some states have enacted laws that mirror the provisions of the ADA with regard to medical examinations and, as a result, likely apply to psychological testing by employers. 55 However, as with polygraph testing, a number of states specifically allow psychological testing of applicants for employees in law enforcement, corrections and other civil service jobs. 56 In terms of its prevalence, the popularity of psychological testing seems to be declining. However, before 50

Cf. Karraker v. Rent-A-Center, Inc., 411 F.3d 831 (7th Cir. 2005) (determining that the Minnesota Multiphasic Personality Inventory (MMPI) test was “designed to reveal a mental impairment” and was, thus, a medical examination). 51 It also should be noted that the EEOC will review personality tests to determine if it has an adverse impact on individuals with disabilities. 52 42 U.S.C. §§ 12111 et seq. 53 411 F.3d 831 (7th Cir. 2005); see also Staples v. Rent-A-Center, Inc., 2000 U.S. Dist. LEXIS 11394 (N.D. Cal. July 7, 2000) (approving $2.1 million settlement of a class-action suit alleging that the company’s psychological tests (the MMPI and the Bernreuter Personality Inventory) violated federal and state law). 54 451 F. Supp. 1355 (D.N.J. 1978), aff’d, 601 F.2d 575 (3d Cir. 1979). 55 CAL. GOV’T CODE § 19940(e), (f). 56 See, e.g., ALASKA STAT. § 39.26.010; CONN. GEN. STAT. § 7-413; DEL. CODE ANN. tit. 11, § 6506(a); 55 ILL. COMP. STAT. 5/3-7008; KAN. STAT. ANN. § 74-5605(a); N.Y. CORRECT. LAW § 8; OHIO REV. CODE ANN. § 124.23; OKLA. STAT. tit. 70, § 3311(E)(2); TEX. OCC. CODE ANN. § 1701.306; W.VA. CODE § 15-2-7.

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implementing psychological testing, employers should consult with legal counsel—in part to help determine whether the jurisdictions in which they operate include restrictions on psychological testing.

§ 1.6 PHYSICAL EXAMINATIONS The ADA addresses several issues surrounding an employer’s right to request that its employees submit to physical examinations.57 (For further discussion of employer-required physical examinations under the ADA, see LITTLER ON DISABILITY IN THE WORKPLACE.) In addition to traditional physical examinations, employers should also be wary of utilizing agility or strength tests as a preemployment screening device. In EEOC v. Dial Corp., the Eighth Circuit Court of Appeals upheld a jury award of compensatory damages for female employees that were not hired after taking a newly implemented strength test, noting the statistical disparity between males hired and females hired, even though males and females had previously been doing the same job. 58 Also, in Deneen v. Northwest Airlines, the Eighth Circuit upheld a jury verdict in favor of a pregnant employee who could not satisfy a 75-pound lifting requirement. The court noted that the airline’s policy requiring its customer service agents to be able to lift 75 pounds is not discriminatory on its face, but there was evidence that the airline did not strictly apply the requirement to all employees, and discriminatorily applied the requirement based on the plaintiff’s pregnancy. 59

§ 1.6(a) Physical Examinations for Job Applicants & Current Employees The ADA generally prohibits employers from requiring medical examinations or making disabilityrelated inquiries before extending a conditional offer of employment to an applicant.60 The prohibition reflects the belief that results from such preemployment examinations and inquiries frequently are used to exclude applicants with disabilities from jobs they are able to perform. However, the ADA recognizes that some employers may need to conduct physical examinations to determine whether an applicant can perform certain jobs safely and effectively. Thus, an employer may condition a job offer on the satisfactory result of a post-offer physical examination or inquiry if such an examination is required of all entering employees in the same job category. 61 An employer may not refuse to hire a person who has been extended a conditional offer of employment, based upon the results of the physical examination, unless the reason is job-related and justified by business necessity. 62 An employer’s reason for refusing to hire a job applicant based upon the results of a physical examination generally will be considered “job related and consistent with business necessity” if the employer had “a reasonable belief, based on objective evidence, that: • an employee’s ability to perform essential job functions will be impaired by a medical condition; or • an employee will pose a direct threat due to a medical condition.”63 Direct threat means that the individual poses a significant risk of substantial harm to him or herself or

57

42 U.S.C. §§ 12111 et seq. EEOC v. Dial Corp., 469 F.3d 735 (8th Cir. 2006). 59 Deneen v. Northwest Airlines, 132 F.3d 431 (8th Cir. 1998). 60 42 U.S.C. § 12112(d)(2)(A). 61 42 U.S.C. § 12112(d)(3). 62 42 U.S.C. § 12112(d)(4). 63 EEOC, Enforcement Guidance: Disability-Related Inquiries & Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) (July 27, 2000), available at https://www.eeoc.gov/policy/docs/guidanceinquiries.html. 58

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others and that the risk cannot be reduced through reasonable accommodation.64 An applicant or employee does not have to have a disability within the meaning of the ADA to have standing to invoke these protections against medical examinations that are not job related and consistent with business necessity. 65 However, to establish that an employer violated the ADA as a result of making an unlawful medical inquiry, courts generally have held that a plaintiff must show that he or she suffered a tangible injury. The ADA’s requirements are equally stringent with respect to physical examinations of current employees. After hiring, an employer may require a physical examination only if the exam is job related and justified by business necessity. 66 For example, prohibited physical examinations encompass far more than fitness-for-duty exams. Employers, for example, generally are prohibited from asking employees about the prescription drugs that they are taking or to provide specific details of an illness that has caused an absence from work. 67 Employers also are not permitted to ask employees about their genetic information, including information concerning the employee’s genetic tests and the occurrence of a disease, medical condition or disorder in the employee’s family. 68

§ 1.6(b) Medical Information Must Be Kept Confidential The ADA imposes strict limitations on the use of information obtained from medical examinations and inquiries. 69 The following are the only exceptions to the general rule that an employer must keep medical information on applicants or employees confidential: 1. supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations; 2. first aid and safety personnel may be told if the disability might require emergency treatment; 3. government officials investigating compliance with the ADA must be given relevant information 64

EEOC, Enforcement Guidance: Disability-Related Inquiries & Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) (July 27, 2000) (citing 29 C.F.R. § 1630.2(r) (1998)). 65 See EEOC, Enforcement Guidance: Disability-Related Inquiries & Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) (July 27, 2000), available at https://www.eeoc.gov/policy/docs/guidance-inquiries.html (the “statutory language makes clear that the ADA’s restrictions on inquiries and examinations apply to all employees, not just those with disabilities. … Any employee, therefore, has a right to challenge a disability-related inquiry or medical examination that is not job related and consistent with business necessity.”); see also Conroy v. New York State Dep’t of Corr. Servs., 333 F.3d 88, 94 (2d Cir. 2003); Griffin v. Steeltek, Inc., 160 F.3d 591, 595 (10th Cir. 1998). 66 Allmond v. Akal Security Inc., 558 F.3d 1312 (11th Cir. 2009) (upholding hearing test for court security officers); see Smith v. City of Des Moines, 99 F.3d 1466 (8th Cir. 1996) (upholding lung capacity testing for firefighters based on business necessity); Boyer v. KRS Computer & Bus. Sch., 171 F. Supp. 2d 950, 966 (D. Minn. 2001) (vocational school did not violate the ADA when it required a janitor to take a blood test after an accident in which other employees came into contact with his blood and he acknowledged that he had hepatitis B). But see Employer Cannot Require Offshore Workers to Have Periodic Medical Exams, EEOC Says, 228 Daily Lab. Rep. (BNA), at A-3 (Nov. 29, 2004) (stating that the EEOC’s informal guidance letter of September 10, 2004, found that workers on offshore drilling rigs could not be required to take periodic medical examinations to screen for threatening illnesses because it did not find that the employees fit within the public safety exception). 67 EEOC, Enforcement Guidance: Disability-Related Inquiries & Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), at § B1 (July 27, 2000), available at https://www.eeoc.gov/policy/docs/guidance-inquiries.html. 68 EEOC, Enforcement Guidance: Disability-Related Inquiries & Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), at § B1. 69 For a more detailed discussion of the ADA see “Disability Discrimination” at §§ 20.1 et seq.

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on request; 4. employers may give information to state workers’ compensation offices, state second injury funds or workers’ compensation insurance carriers in accordance with state workers’ compensation laws; and 5. employers may use the information for insurance purposes. 70

§ 1.6(c) Medical Inquiries for Return to Work Employers may have a legitimate need to monitor the fitness of employees who are returning from medical leave or from industrial injuries. In such cases, an employer must have sufficient information about the employee’s condition to evaluate whether the employee is capable of returning to work without jeopardizing his or her own safety or the safety of others. Any policy requiring a physical examination of an employee returning from a medical leave must be reasonable and take into account the type of injury and length of absence. Fitness examinations must be applied consistently for all workers and serve the purpose of evaluating ability to return to work, rather than advance any other interest.71 While an employer may inquire into whether an employee is capable of performing job-related functions after returning from leave, an employer cannot conduct a medical examination. For example, the Ninth Circuit Court of Appeals held that summary judgment in favor of an employer was inappropriate where an employer required that an employee returning from medical leave after knee surgery participate in a physical capacity evaluation (PCE). The court ruled that PCE potentially could have violated the ADA because it was overbroad insofar as: (1) the occupational therapist measured the employee’s heart rate and recorded observations about her breathing and aerobic fitness; (2) the occupational therapist interpreted her performance, recommended that she not return to work and submitted the test results to her treating orthopedic surgeon; and (3) the test was capable of revealing impairments of the employee’s physical and mental health unrelated to the reason for her leave. 72

§ 1.6(d) AIDS Testing A number of state laws and/or human rights agencies include Acquired Immune Deficiency Syndrome (AIDS) as a protected disability (e.g., Colorado, the District of Columbia, Florida, Kansas, Maine, Massachusetts, New Jersey, Ohio and Oregon). Many states also have adopted AIDS antidiscrimination and/or confidentiality legislation. Additionally, in a potentially far-reaching decision, the U.S. Supreme Court held that HIV infection can constitute a disability under the ADA.73 Therefore, employers should consider the risk of liability if they institute AIDS testing for applicants or employees. This is not to say that inquiry into a person’s HIV status is per se prohibited. For example, the Sixth Circuit Court of Appeals ruled in 1997 that an employer did not violate the ADA where a produce clerk in a supermarket was fired after he refused to submit to a company-paid examination or provide medical proof of HIV status. 74 The court explained the ADA permits medical examinations of a current employee but only in certain limited circumstances. Whether a medical exam is permissible depends on its jobrelatedness and business necessity. With regard to the produce clerk, the court determined that the supermarket’s duty to protect its other employees and the general public from HIV infection provided a legitimate business purpose for the exam and established business necessity. The court also found it significant that the supermarket’s test was not based upon a mere suspicion that the employee may be 70

EEOC, Enforcement Guidance: Preemployment Disability-Related Questions & Medical Examinations (Oct. 1995), available at http://www.eeoc.gov/policy/docs/preemp.html. 71 Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289 (4th Cir. 2010). 72 Indergard v. Georgia-Pacific Corp., 582 F.3d 1049 (9th Cir. 2009). 73 Bragdon v. Abbott, 524 U.S. 624 (1998). 74 EEOC v. Prevo’s Family Market, Inc., 135 F.3d 1089 (6th Cir. 1997).

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sick. Rather, the employee had directly communicated his alleged HIV status to the employer. The court ruled that under these circumstances, terminating the employee’s employment based on his refusal to submit to the examination was “not the sort of unfounded and biased discrimination that the ADA was created to prevent.” 75 Similarly, a Michigan court ruled in favor of an employer that had asked an employee not to return to work until she had undergone an AIDS test. 76 The employee was a food service worker who could be endangering the health and safety of others if she had the virus. The employer had “reasonable suspicion” that the employee had AIDS and relieved her from duty until she could verify that she did not have AIDS. The employee tested negative for HIV and took the results to the employer, who let her resume her duties. The employee then sued for invasion of privacy. The court held that because the request was job related and because the employer had reasonable suspicion that the employee was endangering others, the request was proper. This result, however, would likely have been challenged in many other states. Many states have enacted statutes that specifically regulate the testing, consent, confidentiality and disclosure of AIDS testing.77 Since each state’s laws are unique, employers should consult individual state statutes to ascertain their applicability, all the while keeping the Bragdon decision in mind for any ADA ramifications. Employers should also be mindful that some cities have enacted ordinances that place additional limits on how and when employers may test for HIV and AIDS. In San Francisco, California, for example, employers cannot test for AIDS unless they can show that the absence of AIDS is an essential employment qualification.78 An ordinance in Austin, Texas bans any “medical procedure or test designed to show or help show whether a person has AIDS, or is an HIV-infected individual” unless required as a “bona fide occupational qualification.” 79

§ 1.7 GENETIC TESTING & GENETIC INFORMATION OBTAINED DURING TESTING Recent scientific advances in genetics have improved the understanding of links between genes and diseases, and the potential for earlier detection and better treatment of these diseases. However, these scientific advances raised concerns about the potential for the misuse of genetic information in insurance and employment. In response, federal and state legislation have created significant limitations on the ability of employers to conduct genetic testing and screening. 80

75

135 F.3d at 1094. Sanchez v. Lagoudakis, 581 N.W.2d 257 (Mich. 1998). 77 For example: Some states have enacted testing and confidentiality statutes that restrict the use of HIV testing or HIV test results for discriminatory purposes (e.g., Arizona, Florida, Kansas, Maine, Massachusetts, Missouri, Nebraska, New Mexico, North Carolina, Rhode Island, Texas, Vermont and Wisconsin). Such statutes provide significantly weaker protection than antidiscrimination statutes. Other states have enacted antidiscrimination statutes that define discriminatory conduct and the protected category more broadly (e.g., California, Colorado, Iowa, Kentucky, Maryland, Nevada, New Jersey, Ohio, Vermont and Washington). North Carolina’s HIV-specific statute, the North Carolina Communicable Disease Act (NCCDA) prohibits, among other things, discrimination in continued employment. However, the NCCDA allows HIV testing of job applicants, denial of employment to applicants based on HIV status and HIV testing as an annual medical examination routinely required of all employees. 78 S.F., CAL., POLICE CODE art. 38, §§ 3801–16. 79 AUSTIN, TEX. ORDINANCE § 5-5-8. 80 For example, California’s Fair Employment and Housing Act generally prohibits employers from subjecting applicants and employees to genetic testing. See CAL. GOV’T CODE § 12940(o). 76

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The federal Genetic Information Nondiscrimination Act (GINA) prohibits health insurers and employers from discriminating against individuals based on their genetic information, 81 and imposes broad restrictions on the use of genetic information, as well as the collection and disclosure of genetic information. 82 It applies to all employers with 15 or more employees, as well as to employment agencies and labor unions and joint labor-management training programs as those terms are defined in Title VII. There is no individual liability under GINA. 83

§ 1.7(a) Title II of GINA In the employment context, Title II of GINA prohibits employers from: •

using an individual’s genetic information when making employment decisions or otherwise discriminating against employees or applicants because of genetic information;84

retaliating against employees that complain of discrimination based on genetic information;

requesting, requiring, or purchasing genetic information (with a few exceptions as discussed in more detail below); 85 and

disclosing genetic information to others (except in some limited situations as discussed below).

86

GINA defines genetic information as information about: 1. an individual’s genetic tests; 2. the genetic tests of the individual’s family members; 3. the manifestation of a disease or disorder in the individual’s family members; 4. an individual’s request for, or receipt of, genetic services; and 5. the genetic information of a fetus or any embryo legally held by an individual or family members using reproductive technology. 87 In part, the definition is intended to prevent an employer from inferring that an employee is predisposed to the same disease or disorder as a family member. Significantly, GINA defines family member expansively to include not only the employee’s dependents, but also relatives of the employee or of the employee’s dependents from the first to the fourth degree.88 The EEOC is empowered to enforce the provisions of Title II of GINA and issue regulations 81

42 U.S.C. § 2000ff et seq. Pub. L. No. 110-233, § 2. “Congress has collected substantial evidence that the American public and the medical community find the existing patchwork of State and Federal Laws to be confusing and inadequate to protect them from discrimination. Therefore Federal legislation establishing a national and uniform basic standard is necessary to fully protect the public from discrimination and allay their concerns about the potential for discrimination, thereby allowing individuals to take advantage of genetic testing, technologies, research, and new therapies.” 83 Wright v. Stonemor Partners L.L.P., 2012 U.S. Dist. LEXIS 129593, at **6–7 (W.D.N.C. Sept. 12, 2012) (dismissing GINA claims against individual defendants). 84 42 U.S.C. § 2000ff-1(a); 29 C.F.R. part 1635. 85 42 U.S.C. § 2000ff-1(b); 29 C.F.R. § 1635.8. 86 42 U.S.C. § 2000ff-5; 29 C.F.R. § 1635.9(a). 87 42 U.S.C. § 2000ff(4); 29 C.F.R. § 1635.3(c). 88 42 U.S.C. § 2000ff(3); 29 C.F.R. § 1635.3(a). 82

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For more information regarding discrimination and retaliation under GINA, see LITTLER ON DISCRIMINATION IN THE WORKPLACE: RACE, NATIONAL ORIGIN, SEX, AGE & GENETIC INFORMATION.

§ 1.7(a)(i) Case Illustrations: Preemployment Medical Exams Since GINA’s enactment, the EEOC has focused its enforcement activities on companies that request prohibited genetic information as part of a preemployment medical exam. The first GINA case brought by the EEOC, EEOC v. Fabricut Inc., settled when the company agreed to pay $50,000 to a single plaintiff and take specific actions designed to prevent future discrimination, including the posting of an antidiscrimination notice to employees, dissemination of antidiscrimination policies to employees and providing antidiscrimination training to employees with hiring responsibilities.89 The case arose when the company made an offer of permanent employment to a memo clerk and, then as part of a preemployment drug test and physical by a contract medical examiner, asked the clerk about the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and “mental disorders” in her family. Based on the results of further medical tests, the company ultimately rescinded the clerk’s job offer. The EEOC also filed a class action, based on GINA and the ADA, against a rehabilitation and nursing facility. 90 In the suit, the EEOC alleged that the facility requested applicants provide it with information about their family medical history as part of a post-offer, preemployment medical exam. The case settled for $370,000.

§ 1.7(a)(ii) Genetic Monitoring & Other Exceptions to Prohibition on Requesting, Requiring or Purchasing Genetic Information As noted above, GINA prohibits employers from requesting, requiring or purchasing genetic information except in limited circumstances.91 These exceptions include: Genetic Monitoring Programs: Employers do not violate GINA where the information involved is to be used for genetic monitoring92 of the biological effects of toxic substances in the workplace if all of the following conditions are met: • the employer provides written notice of the genetic monitoring to the employee; •

the employee provides prior, knowing, voluntary and written authorization, or the genetic monitoring is required by federal or state law;

the employee is informed of individual monitoring results;

the monitoring is in compliance with any federal or state genetic monitoring regulations; and

the employer, excluding any licensed health care professional or board certified genetic counselor that is involved in the genetic monitoring program, receives the

89

No. 3:13-cv-248-cve-PJC (N.D. Okla. May 7, 2013). EEOC v. Founders Pavilion Inc., No. 13-CV-06250 (W.D.N.Y. Jan. 9, 2014); see also EEOC, Press Release, EEOC Files Class Genetic Information Discrimination Suit Against Corning Rehab Center (May 16, 2013), available at http://www.eeoc.gov/eeoc/newsroom/release/5-16-13a.cfm. 91 42 U.S.C. § 2000ff-1(b); 29 C.F.R. § 1635.8(a). 92 Genetic monitoring means the periodic examination of employees to evaluate acquired modifications to their genetic material, such as chromosomal damage or evidence of increased occurrence of mutations, that may have developed in the course of employment due to exposure to toxic substances in the workplace, in order to identify, evaluate, and respond to the effects of or control adverse environmental exposures in the workplace. 42 U.S.C. §§ 2000ff(5). 90

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results of the monitoring only in aggregate terms that do not disclose the identity of specific employees. 93 Employees that refuse to participate in voluntary genetic monitoring programs may not be discriminated against on that basis. 94 Inadvertent Acquisition of Genetic Information: Employers do not violate GINA by “inadvertently” requesting or requiring family medical history, which highlights the need for employers to eliminate intentional requests for family medical histories.95 In describing the “inadvertent” or “water cooler” exception in the regulations, the EEOC applies the exception to any genetic information that the employer inadvertently acquires, despite the fact that the statute refers only to family medical history. As examples of situations covered by the exception, the EEOC explains that a supervisor’s questions to an employee, such as “How are you?” or “How’s your son feeling today?” do not violate GINA even if such questions inadvertently elicit genetic information. 96 Employers may not ask follow-up questions such as whether other family members also have the condition or whether the individual has been tested.97 The regulations provide a safe harbor provision for employers that inadvertently acquire genetic information in response to a lawful request for medical information.98 The EEOC states that the acquisition of genetic information will not be considered inadvertent unless the employer directs the individual and/or health care provider supplying the information not to provide genetic information. Importantly, in the context of employment-related medical examinations, a warning to health care providers instructing them not to ask for genetic information is mandatory.99 Employers must also take additional reasonable measures within their control if they learn that medical providers conducting such examinations are requesting or requiring genetic information. 100 Genetic Information Obtained as Part of Health or Genetic Services (e.g., Wellness Programs): Recognizing that employers may offer genetic services as an employee benefit, such as genetic counseling as part of a wellness program, GINA carves out an exception for requests for genetic information in connection with such services. To qualify, three requirements must be satisfied: 1.

the employer must obtain prior, voluntary, and written authorization for disclosure of genetic information to the service provider;

2.

only the employee and the licensed health care professional or board certified genetic counselor involved in providing the services may receive individually identifiable information related to the service; and

3.

no individually identifiable information related to the service may be disclosed to the employer. 101

Thus, an employer’s involvement in an offering of genetic services effectively must be limited to 93

42 U.S.C. § 2000ff-1(b)(5). 29 C.F.R. § 1635.8(b)(5). 95 42 U.S.C. § 2000ff-1(b)(1); 29 C.F.R. § 1635.8(b)(1). 96 29 C.F.R. § 1635.8(b)(1)(ii)(B). 97 29 C.F.R. § 1635.8(b)(1)(ii)(B). 98 29 C.F.R. § 1635.8(b)(1)(i)(A). 99 29 C.F.R. § 1635.8(d). 100 29 C.F.R. § 1635.8(d). 101 42 U.S.C. § 2000ff-1(b)(2). 94

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structuring and paying for the service. The EEOC’s regulations explicitly state that for this exception to apply, the wellness program must be “voluntary,” meaning the employer neither requires the individual to provide genetic information nor penalizes those that choose not to provide it. 102 Consistent with the voluntary requirement, an employer may not offer a financial inducement for individuals to provide genetic information. However, an employer may provide a financial inducement for employees to complete a health risk assessment that includes questions about family medical history and other genetic information, provided that the employer clearly explains to the participants that the financial inducement is available regardless of whether the individual answers the questions about genetic information.103 Request for Family Medical History as Part of FMLA Leave Certification Process: One of the most significant exceptions allows employers to request or require the disclosure of a family member’s genetic information, including manifested diseases or disorders, to comply with the federal Family and Medical Leave Act and state family and medical leave laws.104 Publicly Available Documents: Employers do not violate GINA if they purchase commercially and publicly available documents (excluding medical databases and court records) that contain genetic information about an employee or an employee’s family member. 105 The “publicly available” exception does not include documents obtained from sources that require permission of an individual to access or where access is limited to individuals in a particular group.106 Similarly, the exception does not apply where an employer obtains information from a media source, whether or not it is commercially and publicly available, if the employer is likely to obtain genetic information from that source.107

§ 1.7(a)(iii) Confidentiality of Genetic Information Obtained During Testing Genetic information must be treated as confidential, maintained on separate forms and in separate medical files, and internal access must be strictly limited to those with a need to know. 108 Thus, GINA generally prohibits employers from disclosing genetic information to third parties. However, it allows disclosure of genetic information under limited circumstances: 1. to the employee or member of a labor organization at the request of the employee or member of such organization; 2. to an occupational or other health researcher if the research is conducted in compliance with federal regulations; 3. in response to a court order provided that the employer notifies the employee of the disclosure if the court order was issued without the employee’s knowledge; 4. to government officials investigating compliance with GINA; or

102 103 104 105 106 107 108

29 C.F.R. § 1635.8(b)(2)(i)(A). 29 C.F.R. § 1635.8(b)(2)(ii). 42 U.S.C. § 2000ff-1(b)(3); 29 C.F.R. § 1635.8(b)(3). 42 U.S.C. § 2000ff-1(b)(4); 29 C.F.R. § 1635.8(b)(4). 29 C.F.R. § 1635.8(b)(4)(ii). 29 C.F.R. § 1635.8(b)(4)(iv). 42 U.S.C. § 2000ff-5; 29 C.F.R. § 1635.9(a).

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5. when necessary for the employer to comply with federal or state medical leave laws. 109 While the rule allows for disclosure in response to a court order, the rule does not allow disclosure in other circumstances during litigation, such as in response to discovery requests or subpoenas that are not governed by an order specifying that genetic information must be disclosed.110

§ 1.7(b) Title I of GINA: Health Plans & Health Insurance Issuers Prohibited from Requesting or Requiring Genetic Test Title I of GINA amends ERISA to prohibit group health plans and health insurance issuers from adjusting contribution amounts or premiums for the group based on the genetic information of a plan participant.111 It also prohibits plans and issuers from requesting or requiring a genetic test, 112 except in three circumstances: 1. A health care professional that is providing health care services to the individual is permitted to request that the individual undergo a genetic test.113 2. A plan or issuer is permitted to obtain and use the results of a genetic test for determinations regarding payment. 114 3. A plan or issuer is permitted to request, but not require, genetic testing for research if stringent requirements are met. 115 Group health plans and issuers are prohibited from requesting, requiring or purchasing genetic information prior to enrollment or for underwriting purposes.116 The regulations define the term underwriting purposes very broadly to include providing an incentive (“discounts, rebates, payments in kind, or other premium differential mechanisms”) in return for activities such as completing a health risk assessment or participating in a wellness program. 117 Such an interpretation of the term “underwriting purposes” prohibits health risk assessments for which an incentive is offered for participation from collecting genetic information, including family medical history. Even if an employer offers no incentive at all, Title I of GINA and its implementing regulations prohibit group health plans from using a health risk assessment prior to, or in connection with, enrollment in the plan if the assessment requests family medical history. 118 Because of the complexity of these rules, employers should consult counsel before implementing a health risk assessment that requests family medical history.

109 110 111 112 113 114 115 116 117 118

42 U.S.C. § 2000ff-5(b); 29 C.F.R. § 1635.9(b). 29 C.F.R. § 1635.9(b). 29 C.F.R. § 2590.702-1(b). 29 C.F.R. § 2590.702-1(c)(1). 29 C.F.R. § 2590.702-1(c)(2). 29 C.F.R. § 2590.702-1(c)(4). 29 C.F.R. § 2590.702-1(c)(5). 29 C.F.R. § 2590.702-1(d). 29 C.F.R. § 2590.702-1(d)(1)(ii). 29 C.F.R. § 2590.702-1(d)(2).

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§ 2 DRUG TESTING & LAWS IMPLICATING WORKPLACE SUBSTANCE ABUSE § 2.1 INTRODUCTION Thousands of employers must comply with federal laws—most notably the Omnibus Transportation Employee Testing Act and the 1988 Drug-Free Workplace Act—that require drug-free workplace initiatives and/or drug and alcohol testing. Thousands of others implement workplace substance abuse and drug and alcohol testing policies without any legal mandate to do so to promote safety, deter illegal drug use, diminish absenteeism and turnover as well as workers’ compensation costs, and, broadly, because of the pervasive presence of illegal drug users in the U.S. workforce. For example, according to a 2015 report based on a survey by the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration: 119 •

10.6% of full-time workers (ages 18 to 64) used illicit drugs in the past month (17.3% in the past year); and

9.2% were dependent on or abused alcohol or illicit drugs in the past year.120

Given the pervasive extent of the problem, a number of employers have come to realize that a drug-free workplace can improve employee morale, decrease absenteeism, increase productivity, improve workplace safety and positively impact costs. Employers must recognize, however, that substance abusers may also have rights under the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA) and other laws. This section discusses compliance with relevant federal laws and suggests strategies to achieve the goal of a drug-and alcohol-free workplace, even where government regulations do not apply. For the most part, however, workplace drug and alcohol testing is governed by state law. State laws differ dramatically in this area and continue to evolve. However, a comprehensive survey of these laws is outside the scope of this discussion. There is no one substance abuse testing policy that can satisfy the law of every state. Furthermore, employers may not lawfully extend testing procedures mandated by the U.S. Department of Transportation (DOT) to non-regulated employees without running afoul of the law in some jurisdictions. Recent state and local law efforts to legalize marijuana for some purposes have also caused confusion among employers about whether they may continue to penalize an employee’s marijuana use given marijuana’s federal illegality. Accordingly, an employer wishing to implement a comprehensive substance-abuse prevention program, an employer encountering employee substance-abuse problems, or an employer contemplating testing, rehabilitation or education programs should proceed with the advice of counsel.

§ 2.2 DRUG & ALCOHOL TESTING BASICS § 2.2(a) Types of Testing For many employers, drug and alcohol testing is a key element in maintaining a drug-and alcohol-free workplace. Other elements of a comprehensive drug-free workplace program—mandated in some states but recommended for all employers—are a written policy, reliable testing procedures, employee education, supervisor training, medical review of all positive results, employee assistance programs and 119

The Substance Abuse and Mental Health Services Administration (SAMHSA)is the federal agency whose mission is, in part, to reduce the impact of substance abuse in the workplace. 120 SAMHSA, Center for Behavioral Health Statistics and Quality, Results from the 2014 National Survey on Drug Use and Health: Detailed Tables, Tables 1.23B, 5.7A and 5.7B (Sept. 10, 2015).

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search/inspections policies. There are at least eight types of testing: 1. preemployment testing; 2. preassignment (customer-required) or pre-promotion/pre-transfer testing; 3. routine or periodic testing, such as testing as part of a physical examination; 4. “reasonable suspicion” or other “cause” testing; 5.

post-accident testing;

6.

random or suspicionless testing;

7.

return-to-duty testing; and

8. post-rehabilitation testing or “follow-up testing.” In any testing program, the employer must take steps to assure test accuracy and validity, and maintain the confidentiality of any information obtained from the tests or the testing process.

§ 2.2(a)(i) Preemployment Testing of Applicants Preemployment testing is: 1. testing that is part of the application process before an offer of employment is made; 2. testing that is part of the hiring process after an offer of employment is made, but before actual employment begins (a “conditional offer of employment”); or 3. testing that occurs sometime soon after the individual begins work, but passing the drug test is made a condition of employment (i.e., even though the individual is already working, his or her hiring will not become final unless the individual passes the required test). This type of preemployment testing is generally problematic and discouraged because, once an applicant has employment status (i.e., is permitted to work) he or she may claim rights belonging only to employees. Generally, testing conducted after a conditional offer of employment is extended is the least controversial type of testing. In fact, several states require that job applicants be extended a conditional offer of employment before being asked to submit to a test. The ADA also addresses preemployment testing; it provides that a medical examination that includes alcohol tests, but not drug tests can be required only after a conditional offer of employment has been made and prior to the beginning of the applicant’s duties. Generally speaking, employers have the latitude to conduct preemployment drug testing, even in states that protect privacy rights from intrusions by private employers.121 In addition, the National Labor Relations Board has held that preemployment drug testing is generally not a mandatory subject of collective bargaining. 122 Public sector employers have more limited rights to conduct preemployment drug testing than private employers because of constitutional limitations on searches and seizures. 121

See, e.g., Ross v. Ragingwire Telecomm., Inc., 174 P.3d 200 (Cal. 2008) (approving preemployment drug testing in California). 122 RCA Corp., 296 N.L.R.B. 1175 (1989).

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Preemployment drug testing for certain classes of public employees are common. 123 There is a distinction in the law between preemployment alcohol testing and tests for the illegal use of drugs: •

Preemployment Alcohol Testing: Under the ADA, preemployment alcohol testing is considered a medical examination and, thus, can be conducted: 1. only after an employer has extended the applicant a conditional offer of employment; and 2. in accordance with ADA regulations governing preemployment medical examinations. For a description of failed litigation brought by the EEOC against U.S. Steel and its employees’ union, allegedly because of overbroad alcohol-testing requirements, see § 2.4(c)(iii).

Preemployment Testing for Illegal Drugs: If an employer wishes to conduct a drug test before a conditional offer is made to an applicant, it may do so provided the test is consistent with state law. But the test must be designed to accurately identify only the illegal use of drugs, and should not be performed in conjunction with a preemployment physical examination. The search for illegal drug-use is permitted under the ADA because a test to determine whether an applicant is illegally using drugs is specifically exempted from the definition of what constitutes a medical examination and current illegal drug use is not protected by the ADA. Applicants (and employees) ordinarily should not be asked to reveal information about prescription or over-the-counter drug use absent a confirmed positive test that could be explained by such use, and ideally this process will be conducted by a third party Medical Review Officer so that the potential employer is not privy to applicant medical information.124 The ADA’s impact on drug and alcohol testing is discussed in greater detail at § 2.4(c)(iii) below. Whether an employer can decline ever to hire an individual who has once failed a preemployment drug test remains something of an open question. EEOC interpretative guidance and some past litigation efforts suggest that an employer cannot refuse to consider an applicant who previously tested positive, so long as the result was so far in the past that the applicant could no longer be considered a current illegal drug user based on the prior test alone. The EEOC’s approach is that the employer’s protection in these cases is through administration of another preemployment drug test. However, a 2011 decision from the Ninth Circuit Court of Appeals reached the opposite conclusion. In Lopez v. Pacific Maritime Association, the employer implemented a “one-strike” rule that permanently disqualified applicants from future consideration for employment if an applicant failed a drug test. 125 The applicant had tested positive for marijuana when he first applied for employment with the employer and was rejected for employment. Two years later, the applicant reapplied for a position with the employer. Pursuant to its “one-strike” rule, the employer declined to consider the applicant. The applicant alleged that the employer’s policy

123

See, e.g., Kerns v. Chalfont-New Britain Twp. Joint Sewage Auth., 2000 U.S. Dist. LEXIS 5188 (E.D. Pa. Apr. 18, 2000) (preemployment testing of sewage plant superintendent upheld); Willner v. Thornburgh, 928 F.2d 1185 (D.C. Cir. 1991) (urine tests of applicants for positions as attorneys with Department of Justice did not violate Fourth Amendment protection against unreasonable searches and seizures); Fowler v. New York City Dep’t of Sanitation, 704 F. Supp. 1264 (S.D.N.Y. 1989) (testing urine as part of a physical examination to determine fitness for employment did not constitute a search under the Fourth Amendment); Loder v. City of Glendale, 927 P.2d 1200 (Cal. 1997) (preemployment testing for City employees upheld). But see Lanier v. City of Woodburn, 518 F.3d 1147 (9th Cir. 2008) (preemployment drug test of part-time library aide violates Fourth Amendment to the Constitution). 124 42 U.S.C. §§ 12101 et seq.. 125 657 F.3d 762 (9th Cir. 2011).

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violated the ADA. The Ninth Circuit rejected the applicant’s claim, holding that “[t]he ADA prohibits employment decisions made because of a person’s qualifying disability, not decisions made because of factors merely related to a person’s disability.” 126

§ 2.2(a)(ii) Preassignment Testing Preassignment drug tests: •

may be required by an employer’s customers as a condition of assignment to a project or account;

may be part of a temporary worker’s assignment process; or

in somewhat different circumstances, may be part of a promotion process.

This type of drug test is becoming popular in circumstances where the employee will work at the customer’s or client’s worksite or even with prospective customers of the employer’s clients. In most states, preassignment drug testing required by customers, can only be conducted with careful advance notice in writing of such testing. Nevertheless, in states with mandatory workplace testing laws, it is likely that the employer can only implement such tests, if at all, if the employer meets the state law criteria governing suspicionless testing of current employees. (In some states, suspicionless testing is tied to unannounced testing of employees in safety-sensitive positions. Thus, preassignment testing—which is announced—may not be lawful). Other forms of preassignment testing include pre-promotion and pre-transfer drug testing. Employers conducting these kinds of tests have an interest in determining whether employees advancing within their organizations or determining whether employees that are new to a position (e.g., applicants) are not current illegal drug users. Similar to customer-required testing (with carefully worded advance written notice), these kinds of drug tests would be lawful in most states, but would not generally be lawful in states with mandatory testing laws, rules/regulations or court decisions.

§ 2.2(a)(iii) Periodic Testing Periodic testing is any drug test that is conducted on a periodic basis, most often in conjunction with an annual physical examination. Typically, employees have notice that a drug test will be conducted at the scheduled exam. However, periodic testing can include unannounced suspicionless testing for a class or group of employees (usually employees in safety or security sensitive positions) where it is impractical to set up a program that is truly random because of the size of the group subject to testing. Federal (and some state) courts have approved government-mandated drug testing as part of annual or periodic physical examinations for sensitive positions.127 This type of testing by both private and public sector employers is on the wane because such tests do little to actually deter or detect substance abuse, given their scheduled nature. Some states with drug-testing statutes permit periodic testing only in conjunction with physical examinations. Under the ADA, however, the physical examination must be either voluntary or job-related and consistent with business necessity. 126

657 F.3d at 764–65 (citing Raytheon Co. v. Hernandez, 540 U.S. 44 (2003)). But see EEOC v. Exxon Corp., 202 F.3d 755 (5th Cir. 2000) (accepting EEOC’s argument that analyzing the company’s policy of refusing to consider for rehire any individual who violated its drug policy in the past tended to screen out individuals with disabilities and evaluating the company’s defenses under the “direct threat” provision of the law). 127 See, e.g., Rothernberg v. Daus, 2014 U.S. Dist. LEXIS 105598 (S.D.N.Y. July 31, 2014) (city-mandated annual drug test in NY taxi drivers upheld); International Bhd. of Teamsters v. DOT, 932 F.2d 1292 (9th Cir. 1991) (periodic testing did not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures); Amalgamated Transit Union, Div. 1279 v. Cambria County Transit Auth., 691 F. Supp. 898 (W.D. Pa. 1988) (pursuant to Federal Highway Administration regulations, drug testing as part of an annual physical examination upheld). The requirement for periodic examinations of drivers has since been eliminated.

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§ 2.2(a)(iv) Reasonable Suspicion Testing

Reasonable suspicion testing is generally defined as including those tests that are triggered by an employer’s specific, contemporaneous and articulable observations of behavior, appearance, odors and/or speech that suggest drug or alcohol use, or where other credible factors suggest a violation of the company’s substance-abuse prevention policy. 128 With regard to reasonable suspicion for drug testing, such observations may, if known by supervisory staff, “include indications of the chronic and withdrawal effects of controlled substances.” 129 However, one employee’s association with another employee 130 believed to be involved with drugs may not justify reasonable suspicion testing. Refusal to submit to reasonable suspicion testing under an appropriate testing policy has been held to be appropriate grounds 131 for terminating the employee. An employer’s reasonable suspicion testing policy may be subject to challenges based on inconsistent application among employees.132 For this reason, employers should ensure that supervisors know the company’s policy on what constitutes “reasonable suspicion,” that they are trained and that they apply the policy fairly.

§ 2.2(a)(v) Post-Accident Testing Post-accident testing focuses on employees who have been involved in an on-the-job accident (vehicular or otherwise) that may have involved human error, and that causes a fatality, a serious injury or significant property damage. Many employers conduct drug and alcohol testing of employees following a workplace accident or near-accident (such as an employee’s loss of control of a vehicle which nevertheless comes to a stop without harming anyone or causing significant property damage), although this is not permitted in a substantial minority of jurisdictions. It is generally wise to test only those employees whose actions, or failure to act, caused or contributed to the accident and not to test injured employees who may not have had a role in the accident’s cause (e.g., bystanders); otherwise, the testing may be perceived as suspicionless or even retaliatory. 133 The DOT’s Federal Motor Carrier Safety Administration (FMCSA) requires testing after an accident when: 1. there is a fatality; 2. there is an injury requiring immediate treatment away from the scene, and the driver receives a citation for a moving violation; or 3. one or more vehicles incurs disabling damage, and the driver receives a citation for a moving violation. 134 As noted above, many employers conduct post-accident tests in a broader range of circumstances.

128

49 C.F.R. § 382.307(a). 49 C.F.R. § 382.307(b). 130 Jackson v. Gates, 975 F.2d 648 (9th Cir. 1992). 131 See, e.g., Slaughter v. John Elway Dodge Southwest/AutoNation, 107 P.3d 1165 (Colo. Ct. App. 2005); Rawlings v. Police Dep’t of Jersey City, 133 N.J. 182 (1993). 132 See, e.g., Jones v. Ottenberg’s Bakers, Inc., 999 F. Supp. 2d 185 (D.D.C. 2013); Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995) (reasonable suspicion testing may be subject to abuse because of the inherently subjective nature of decision to test). 133 See, e.g., Jones v. Ottenberg’s Bakers, Inc., 999 F. Supp. 2d 185 (D.D.C. 2013) (employee alleged race discrimination on basis of post-accident drug test where employee did not contribute to accident). 134 49 C.F.R. § 382.303(a). 129

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§ 2.2(a)(vi) Random Drug Testing Random testing means selecting employees for tests at random, without suspicion and without advance notice of when the test will occur. Random testing may also include the testing of all employees in a company (or a particular division of a company) when the date and time of the testing is unannounced, and is more appropriately termed “suspicionless” testing as the choice of whom to test is not truly random. Employers in some regulated industries—including the trucking, nuclear power, oil and gas and airline industries—are required to conduct random drug and/or alcohol tests of designated classes of employees. The percentage of employees selected for random testing in a given year varies both by industry and by previous evidence of drug or alcohol abuse. Several states limit an employer’s right to conduct random testing by statute or by judicial decision. For example, Rhode Island and Vermont prohibit random testing altogether. Other states, including California, Connecticut, Maine, Massachusetts, Minnesota, New Jersey, Puerto Rico and West Virginia restrict random testing to some extent-generally to employees in safety-or security-sensitive positions. For example, the Supreme Judicial Court of Massachusetts has held that a company’s random drug-testing program was invalid because it did not distinguish between employees who held safety-sensitive positions and those who did not. 135 Other states, like Iowa and Oklahoma, permit such tests but regulate the pools of employees who are subject to testing. Random drug testing in the private sector is, however, legal in the vast majority of states. An employer cannot, of course, conduct random drug testing in a manner that interferes with employees’ rights under sections 8(a)(3) or 8(a)(1) of the National Labor Relations Act or under applicable labor agreements. 136 In the public sector, cases that uphold random drug testing usually involve employees in specific, narrowly defined job classifications or professions that may be categorized either as part of a pervasively regulated industry (when the employee has a diminished expectation of privacy given the nature of employment) or critical to public safety or the protection of life, property or national security. For example, random testing has been upheld for: economists for the Office of Management and Budget who hold access passes to office buildings within the White House security perimeter; customer agents; and correctional officers who have contact with prisoners (but not public employment). 137

§ 2.2(a)(vii) Return-to-Work & Follow-up Testing Rehabilitation testing occurs during an employee’s participation in a rehabilitation program and is generally conducted by that program without employer involvement. Return-to-work testing occurs after an employee has tested positive or otherwise violated a company policy, following rehabilitation and prior to resuming work. Follow-up testing is post-rehabilitation testing designed to encourage recovering addicts to stay “clean” and is usually administered by an employer after an individual has been cleared to return to work by a treatment professional. Generally speaking, an employer should draft a written agreement with an affected employee that specifically addresses various terms and conditions for return135

Webster v. Motorola, Inc., 637 N.E.2d 203 (Mass. 1994). See Wayne Mfg. Corp., 317 N.L.R.B. 1243 (1995) (holding that the employer violated section 8(a)(1) by making threats regarding union activity and violated section 8(a)(3) by administering a drug test motivated by its employees’ union activity). 137 Krieg v. Seybold, 481 F.3d 512 (7th Cir. 2007) (sanitation department driver/laborer); Stigile v. Clinton, 110 F.3d 801 (D.C. Cir. 1997) (economists); American Fed’n of Gov’t Employees v. Roberts, 9 F.3d 1464 (9th Cir. 1993); International Bhd. of Elec. Workers, Local 1245 v. Skinner, 5 I.E.R. Cases (BNA) 1621 (9th Cir. 1990) (pipeline workers); Bluestein v. Skinner, 908 F.2d 451, 454 (9th Cir. 1990) (aviation personnel); Taylor v. O’Grady, 888 F.2d 1189, 1199 (7th Cir. 1989) (correctional officers); Shepherd v. City of East Peoria, 2015 U.S. Dist. LEXIS 66947 (C.D. Ill. May 22, 2015) (wastewater operator) ; Byrne v. Massachusetts Bay Transp. Auth., 196 F. Supp. 2d 77 (D. Mass. 2002) (transportation police officers); O’Brien v. Massachusetts Bay Transp. Auth., 1998 U.S. Dist. LEXIS 4088 (D. Mass. Mar. 20, 1998), aff’d, 162 F.3d 40 (1st Cir. 1998) (truck drivers). 136

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to-duty and follow-up testing. While most states permit some type of rehabilitation or follow-up testing, some have laws restricting when and for how long it can be done. Employers should review the applicable state and local law, and consult with counsel to ensure compliance. All five of the operating administrations of the DOT require post-rehabilitation or follow-up testing, in order to perform regulated work for any employer in the transportation sphere, after an employee has violated DOT drug/alcohol prohibitions. With some variation among operating administrations, the rules minimally require that after a “substance abuse professional” (SAP) has determined that a regulated employee has complied with prescribed assistance in resolving problems associated with alcohol and/or controlled substances use, the employer must ensure that the employee tests negative on a return-to-duty test and is subject to unannounced and discretely observed follow-up alcohol and/or controlled substances testing as directed by the SAP, for a period of up to five years. 138 In fact, this obligation extends to subsequent regulated employers, until the SAP deems such tests no longer necessary.

§ 2.2(b) Methods of Drug & Alcohol Testing Urine and breath are the most frequently used specimens for drug and alcohol testing, respectively. The federal drug-testing regulations still require the use of urine for drug tests. In the private sector, however, alternative methodologies are gaining in popularity. Testing technology shows that breath, saliva, hair and sweat may be reliable, noninvasive alternative sources of specimens. Federal regulations permit the use of saliva for initial alcohol tests. All confirmatory alcohol tests in the federal arena must involve breath testing. Urine alcohol tests are widely regarded as undesirable. Not all specimen types are lawful for testing in every jurisdiction. State and local law must be considered to determine if an employer may lawfully require submission of particular specimens for testing in each jurisdiction.

§ 2.2(b)(i) Urine As noted above, urinalysis is the most common type of specimen used to test for illegal drugs. However, because the act of urination is private, urinalysis testing has been particularly vulnerable to claims of invasion of privacy. These concerns are in tension with potential donor efforts to tamper with, switch or adulterate samples. However, measuring specimen temperature and testing for adulterants, dilution and substitution is increasingly common, and the occurrence of such problems is grounds for invalidating the test even absent observation of sample collection. Urine typically contains the metabolites of the drugs tested for, rather than the drugs themselves. Detection periods for most drugs of abuse is one to three days after ingestion, although chronic marijuana use allegedly may be detected for up to a month. In BNSF Railway Co. v. U.S. Department of Transportation, the District of Columbia Circuit Court of Appeals ruled that the DOT’s revised regulation requiring urine drug tests under direct observation with partial disrobing for transportation employees with safety-sensitive duties who returned to work after failing or refusing to be tested did not violate the Fourth Amendment or the Administrative Procedure Act. 139 The DOT produced considerable undisputed evidence about the increasing availability of products designed to defeat drug tests and the inadequacy of existing drug test protocols to prevent cheating.140 The court reasoned that the DOT’s approach to limit direct observation testing to situations posing a high risk of cheating, i.e., returning employees who face heavy sanctions for repeat violations, was reasonable. 141 The court opined that “[g]iven the combination of the vital importance of transportation 138 139 140 141

49 C.F.R. § 382.311. BNSF Ry. Co., 566 F.3d at 202. 566 F.3d at 203. 566 F.3d at 204.

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safety, the employees’ participation in a pervasively regulated industry, their prior violations of the drug regulations, and the ease of obtaining cheating devices capable of defeating standard testing procedures,” the challenged regulations were facially valid as a reasonable search under the Fourth Amendment. 142 The EEOC has also begun to press claims challenging specific employer urine testing practices as violative of the ADA. For example, in 2011, the EEOC asserted in an advice letter that an employer violates the ADA when it fails to permit individuals claiming “shy bladder” (any medical condition that makes it difficult for an individual to urinate within a reasonable time on demand) to submit to an alternative type of test, such as a hair test. 143

§ 2.2(b)(ii) Breath Breath reveals the presence of alcohol that has reached the breath by diffusion from the bloodstream to the lungs. Unlike blood, a breath sample can be obtained without intrusion into the body. Most commonly, the sample is collected by trapping the terminal portion of a single full breath. Breath is the preferred specimen for detecting alcohol use in drunk-driving situations and is the confirmatory testing methodology required under the DOT alcohol testing regulations. However, some states do not explicitly permit breath alcohol testing and application of the express terms of some states’ testing statutes arguably prohibit breath testing. 144

§ 2.2(b)(iii) Blood Blood tests can be used to detect the presence of alcohol and/or drugs in an individual’s system. Because of the invasive nature of drawing blood, blood collections are regulated by most states’ laws. Blood tests are not common elements of an employer’s drug-testing program but may be used, e.g., in connection with post-accident tests performed by treating medical personnel.

§ 2.2(b)(iv) Saliva Saliva, or “oral fluids” tests are gaining in popularity for the detection of drugs, and saliva has long been used for evaluating alcohol use. DOT regulations permit the use of certain approved saliva-testing devices for initial alcohol tests, although positive tests must be confirmed using a breath test. The specimen is acquired by absorbing saliva, and sometimes cells from the lining of the mouth, on a blotter strip or dental 142

566 F.3d at 208. For other state and federal cases concerning public employers, see Anchorage Police Dep’t Employees Ass’n v. Municipality of Anchorage, 24 P.3d 547 (Alaska 2001) (random drug testing of police officers and firefighters struck down as an unreasonable search and seizure under the state constitution). But see Booker v. City of St. Louis, 309 F.3d 464 (8th Cir. 2002) (finding a city jail’s drug test was not unreasonable where a female contract employee stood one foot behind a male officer as he provided a sample); Geffre v. Metro. Council, 174 F. Supp. 2d 962 (D. Minn. 2001) (random drug-testing of wastewater workers does not violate the Fourth Amendment, where the employer bargained with the employees’ union for the policy and the union members consented to it by ratifying the collective bargaining agreement); Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299 (6th Cir. 2000) (mandatory random drug testing of a truck driver who occupies a safety-sensitive position does not violate the Fourth Amendment absent a showing of abuse of process); Kerns v. Chalfont-New Britain Twp. Joint Sewage Auth., 2000 U.S. Dist. LEXIS 5188 (E.D. Pa. Apr. 18, 2000) (no constitutional violation where safety concerns existed and township employee consented to test). 143 See, e.g., EEOC, Advice Letter, ADA: Definition of Disability Under ADAAA (Aug. 12, 2011), available at https://www.eeoc.gov/eeoc/foia/letters/2011/ada_definition_disability.html. Cf. Buckley v. Consolidated Edison Co. of N.Y., 155 F.3d 150 (2d Cir. 1998) (concluding that employer’s drug-testing policy, which followed federal guidelines as to “shy bladder” conditions, was reasonable). 144 Jones v. City of Boston, 752 F.3d 38 (1st Cir. 2014) (African American plaintiffs alleged that hair follicle tests result in false positives); Whye v. Concentra Health Servs., Inc., 2013 U.S. Dist. LEXIS 137142, at **28-29 (D. Md. Sept. 24, 2013) (Maryland’s drug testing statute, Maryland Code, Health-General § 17-214, did not permit breath alcohol testing because it contained an exclusive list of appropriate testing specimens, which did not include “breath;” however, plaintiff’s privacy tort claim failed because a breath test is minimally intrusive); see also MINN. STAT. §§181.950-181.957; VT. STAT. tit. 21, §§ 511-520.

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sponge. It is difficult for a donor to tamper with a saliva specimen and invasion of privacy concerns that make observed collection of urine undesirable are eliminated. Samples are much smaller than urine specimens, and may be difficult to re-test for this reason. Perhaps because the testing methodology is still relatively new, a number of states’ laws prohibit, or do not accommodate, such tests for the purpose of detecting drug use.

§ 2.2(b)(v) Hair Hair reveals exposure to drugs, approximately when the drug use occurred and whether it was interrupted by abstinence. Drug molecules, like other chemicals, are incorporated into hair as it grows, remain in the hair strand for the life of the strand, and thus provide a history of drug use for the same period. Head hair, the fastest growing of all body hair, grows about one-half inch every month. Accordingly, approximately three inches of hair will give a drug use history of the previous six months, although typically only the growth from the most recent 90-day period is tested. Drugs become detectable in the hair closest to the scalp three or four days after use. The test thus cannot show very recent use, and is, therefore, not recommended for reasonable suspicion or post-accident drug tests. Conversely, hair tests may be more desirable than other methods when used for preemployment, random and follow-up tests. Specimen collection is noninvasive, and generally is not detectable from a cosmetic perspective. When head hair is not available, other hair may be tested. Testing of hair to detect the presence of drugs generally is done through radioimmunoassay (RIA) analysis and confirmed using gas chromatography/mass spectrometry (GC/MS). The reliability of hair testing has been the subject of dispute. For example, the Nevada Supreme Court has held that “radioimmunoassay hair analysis, especially when coupled with confirmatory GC/MS is an accepted and reliable scientific methodology for detecting illicit drug use,” and hair testing generally has been deemed reliable by the courts that have evaluated the issue. 145 Likewise, hair testing at times has been subject to 146 disparate impact discrimination claims. Most, but not all states, permit the use of hair tests to detect the presence of drugs.

§ 2.2(b)(vi) Sweat A tamper-proof transdermal patch (similar to those being marketed as a stop-smoking aid) is available that collects sweat, and is then tested to reveal drug and alcohol use. Drug molecules and their metabolites are trapped in the patch over a period of at least one week, making the sweat patch best suited for monitoring over a period of time, such as follow-up to rehabilitation, rather than to detect current impairment. Although the sweat patch has been utilized in prisons for some time, it is not widely used in the employment setting.

§ 2.2(c) Recommended Testing Procedures Employers that have adopted drug and alcohol testing policies for their employees should provide formal training for supervisors and managers in the detection and recognition of drug abuse and alcohol misuse. 147 Employees and applicants should be provided with a copy of the testing policy that clearly sets forth drug and alcohol prohibitions and consequences of violating the policy, as well as an explanation of the testing protocols and the individual’s right, if any, to challenge adverse test results. Certain states require such measures. Further, to avoid potential liability for negligence based on the administration of the actual testing procedure, employers should contract only with collection sites that have personnel trained regarding appropriate protocol and laboratories certified by the U.S. Department of Health and Human Services or 145

Nevada Emp’t Sec. Dep’t v. Holmes, 914 P.2d 611 (Nev. 1996); see also Deitch v. City of N.Y., 90 A.D.3d 924 (N.Y. App. Div. 2011). 146 See, e.g., Jones v. City of Boston, 118 F. Supp. 3d 425 (D. Mass. 2015). 147 49 C.F.R. § 382.603.

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as otherwise required by law. 148 Confirmatory tests of all initial positive results are recommended, as is use of the services of an MRO to review all confirmed positive test results to ensure they are not caused by the legitimate use of prescription medication.149 Again, certain states require such measures. Consent forms should be used. Waivers of liability for negligence in the testing process may be ineffective or even unlawful.150 Waivers also are prohibited by the DOT. Waivers also often have an adverse impact on employee support for a testing program. After a drug test has been administered to employees, employers must be careful to limit disclosure of the results only to those with a need to know. For example, a New York federal court found that a city employee adequately pleaded claims under the ADA’s confidentiality provisions when the results of his drug and alcohol test were wrongfully disclosed to the media. 151 The City argued that because the ADA excludes tests for illegal drugs from its definition of medical examinations, the ADA’s confidentiality provisions could not be triggered. The employee, on the other hand, argued that the drug and alcohol tests at issue “represent inquiries into the ability of an employee to perform job-related functions,” as noted in 42 U.S.C. § 12112(d)(4)(B), “and such inquiries are accorded the confidentiality protections” in the ADA. 152 The court rejected the City’s argument and noted that the employee’s argument seemed to be supported by the EEOC’s regulations and interpretive guidance—the information “is to be treated as a confidential medical record.” 153 Therefore, the court ruled in favor of the employee on the defendants’ motion to dismiss the complaint finding that the confidentiality provisions of the ADA apply to both medical exams and medical inquiries relating to an employee’s ability to perform job-related functions.

§ 2.3 GOVERNMENTAL REGULATIONS REQUIRING EMPLOYER ACTION Whether an employer is required to implement a drug testing program for its employees is often determined by the industry in which it operates. For example, DOT drug and alcohol testing regulations require the testing of certain applicants and employees in the transportation industries. Federal testing requirements generally preempt state law to the extent the two conflict, but if there is no direct conflict, employers must harmonize federal and state law requirements.

§ 2.3(a) Omnibus Transportation Employee Testing Act Pursuant to the Omnibus Transportation Employee Testing Act, five operating administrations of the DOT have promulgated rules requiring private employers to implement alcohol and drug testing: • Federal Aviation Administration (FAA); 148

See Cooper v. Laboratory Corp. of Am. Holdings, 150 F.3d 376 (4th Cir. 1998); Coleman v. Town of Hempstead, 30 F. Supp. 2d 356 (E.D.N.Y. 1999) (employee may pursue claims against employer and laboratory for negligence in testing process). 149 Testing laboratories may also be liable to employees for errors made in the testing results that they report to employers. See, e.g., Webster v. Psychemedics Corp., 2011 Tenn. App LEXIS 335, at *19 (June 24, 2011); Berry v. National Med. Servs., 205 P.3d 745 (Kan. Ct. App. 2009), aff’d, 257 P.3d 287 (Kan. 2011); Sharpe v. St. Luke’s Hosp., 821 A.2d 1215 (Pa. 2003); see also Quisenberry v. Compass Vision, Inc., 618 F. Supp. 2d 1223 (S.D. Cal. 2007); Chapman v. LabOne, 460 F. Supp. 2d 989 (S.D. Iowa 2006). But see Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705 (Tex. 2003) (indicating that Texas law does not recognize a duty of care owed from a third-party testing laboratory to a test subject). 150 Webster, 2011 Tenn. App. LEXIS 335; see also Smith v. Grobet File Co. of Am., Inc., 20 I.E.R. Cas. (BNA) 718 (S.D.N.Y. 2003); CAL. CIV. CODE § 1668; ME. REV. STAT. tit. 26, § 683. 151 Giaccio v. New York City, 2005 U.S. Dist. LEXIS 642 (S.D.N.Y. Jan. 15, 2005). 152 2005 U.S. Dist. LEXIS 642, at *11. 153 2005 U.S. Dist. LEXIS 642, at **11–12.

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• Federal Motor Carrier Safety Administration (FMCSA); • Federal Railroad Administration (FRA); • Federal Transit Administration (FTA); and • Pipeline and Hazardous Materials Safety Administration (PHMSA).154

§ 2.3(b) FMCSA Regulations

The FMCSA regulations apply to any employer that employs or uses even one regulated driver.155 These regulations cover an estimated eight million individuals. Because of their broad coverage, they are discussed in more detail below.

§ 2.3(b)(i) Prohibitions & FMCSA Testing Requirements The FMCSA regulations set forth basic prohibitions pertaining to being on duty while having a bloodalcohol concentration of 0.02% or greater, using alcohol on duty, using alcohol prior to duty, using alcohol after an accident, testing positive for a controlled substance and refusing to submit to a required alcohol or controlled substances test. The regulations also prohibit an employee from reporting for duty or remaining on duty when the employee is using any controlled substance, except when the use is pursuant to the instructions of a physician who has advised the driver that the substance does not adversely affect the driver’s ability to operate a commercial motor vehicle safely. The regulations specifically allow an employer to require a driver to inform the employer of any therapeutic use of prescribed medication. The regulations also prohibit employers from using a driver who has tested positive for controlled substances or alcohol, or a driver who the employer knows to have used controlled substances or alcohol in violation of the regulations, to perform safety-sensitive functions. The regulations require preemployment testing, post-accident testing, random testing, reasonable suspicion testing, return-to-duty testing and follow-up testing. Employers must test for both alcohol and controlled substances, except that preemployment alcohol testing is not required. Critically, the FMCSA regulations obligate entities that use a driver to ensure that the driver is in compliance with the regulations, even if the entity is not the employer of the driver. Employees not subject to the regulations must not be included in the employer’s DOT testing program, although the employer can test these individuals pursuant to its own authority consistent with state law. The tests seek the presence of five classes of drugs and alcohol. The drug classes include: • amphetamines, methamphetamines and methylenedioxymethamphetamine (MDMA) (e.g., Ecstasy); • cocaine; • marijuana; 154

In addition, the U.S. Department of Defense, the Coast Guard and the Nuclear Regulatory Commission, as well as other government agencies, have adopted regulations requiring mariners, employers and contractors to maintain a drug-free workplace. Further, under the laws of some states, certain occupational testing legislation may apply to specific occupations (e.g., under Minnesota law, testing relating to staff of substance abuse treatment facilities). 155 See 49 C.F.R. pts. 40, 382. The regulations apply to all drivers engaged in interstate and intrastate commerce who operate a vehicle or vehicle combination with a gross vehicular weight or weight rating (GVWR) of 26,001 pounds or more, that is designed to carry 16 persons or more (including the driver) or that is of any size and requires placarding under the Hazardous Materials rules. 49 C.F.R. § 382.107.

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• opiates (but only heroin use will be reported as positive); and • phencyclidine (PCP or “angel dust”). 156 The procedures for sample collection, chain-of-custody and laboratory testing are specific and mandatory. The regulations also require the use of a medical review officer (MRO) to review all confirmed positive, adulterated and substituted drug tests. Sample collections generally allow individual privacy, but in certain circumstances, observed urine collections are required. Currently, only urine specimens may be used for drug testing. Regarding alcohol testing, positive saliva tests must be confirmed by an evidential breath-testing device before either test will be considered positive. However, in early 2012, the U.S. Department of Health and Human Services (HHS) adopted recommendations made by its Drug Testing Advisory Board (DTAB) that the regulations be expanded to include oral fluids tests for the presence of prohibited drugs. In addition, the HHS approved a recommendation to study whether certain Schedule II prescribed medications—including oxycodone, hydrocodone, oxymorphone, and hydromorphone—should be added to the federal testing panel, as the abuse of these drugs has become widespread. 157 As of August 1, 2016, no final action had been taken with respect to either oral fluids drug testing or the addition of these substances for testing.

§ 2.3(b)(ii) Employer Must Request Past Testing & Substance Abuse Information Under the regulations, a prospective employer must obtain from prior transportation employers information on the driver’s prior alcohol tests with a result of 0.04% or greater, positive controlled substances test results and refusals to be tested. The new employer may not permit a driver to perform safety-sensitive functions after 14 days without seeking to obtain the information and must obtain the information even if the driver works for fewer than 14 days. If the information shows that the driver has engaged in prohibited conduct, the employer must ensure that the driver is again eligible to perform safety-sensitive work, in accordance with the requirements described below, before permitting him to do so. Prior employers must maintain and release all information in their possession that relates to driver compliance with the drug and alcohol rules or risk a compliance action from the FMCSA.

§ 2.3(b)(iii) FMCSA Notice & Training Requirements The regulations also require each employer of regulated drivers to disseminate a policy outlining each of the DOT drug and alcohol rules, to provide specific educational materials to drivers and to provide at least two hours of training to supervisors (one hour on alcohol use and one hour on controlled substances use). The regulations set forth very specific requirements detailing the information that must be provided to drivers. Drivers must sign a certificate of receipt of the materials and the employer must maintain the original of the signed certificate.

§ 2.3(b)(iv) Consequences of Failing Drug/Alcohol Test & Other Drug/Alcohol Violations The regulations specify consequences for drivers who engage in prohibited conduct. First, the driver must be removed from safety-sensitive functions and referred to a substance abuse professional (SAP) for evaluation. Job applicants must be provided with a list of SAPs even if they are not hired. A referral need not be made when the positive test is for alcohol at a concentration of 0.02% or greater but less than 0.04% (but certain return-to-duty time limits apply for alcohol test results in that range). Second, a driver cannot return to safety-sensitive functions until the driver has been evaluated by an SAP, has completed 156

49 C.F.R. pt. 40. Drug & Alcohol Testing Industry Assoc., Breaking News—DTAB Recommendations Approved by HHS! (date not included), available at http://www.datia.org/component/content/article/89-federal-resources/1121-breakingnews-dtab-recommendations-approved-by-hhs.html. 157

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education and/or rehabilitation as the SAP deems appropriate and has taken a return-to-duty test with a negative result. The SAP must prescribe some education or treatment. Assuming the driver complies, he or she may resume performing safety-sensitive functions, subject to unannounced follow-up testing consisting of at least six tests in the first 12 months following the return to duty, and continuing for up to 60 months in accordance with the direction of the SAP. Simply setting forth the required elements of the DOT testing program does not establish a policy permitting the employer to take disciplinary action when a driver has tested positive or otherwise engaged in prohibited conduct. DOT regulations do not address discipline or other adverse employment actions such as withdrawal of an offer of employment following a positive test result. Rather, the rules permit employers to determine what, if any, action the employer may take in addition to those imposed by the regulations, consistent with state law and applicable labor contract. Therefore, if an employer goes beyond the basic requirements of the regulations, including a policy of disciplinary action, the employer must specify the additional policies or consequences and must describe the additional policies or consequences as being required by the employer, not by the federal regulations. In a unionized workforce, all nonmandatory program elements—such as termination following a positive test—are subject to negotiation and all employers must comply with state law requirements not preempted, such as laws relating to offers of rehabilitation following a positive test result. 158

§ 2.3(b)(v) FMCSA Records Retention Requirements Finally, the regulations require the employer to create and submit records and to retain them for specified periods of time. The types of records that the employer must obtain and maintain include records related to driver history of substance abuse violations with prior employers, supervisor training, the testing process, drivers’ test results, other violations of the regulations and SAP evaluations. The regulations require employers to prepare and maintain annual calendar year summaries of the results of their alcohol and controlled substances testing programs. These reports must be maintained using the required Management Information Systems (MIS) forms. Because the DOT regulations are complex and very specific, employers covered by the regulations should consult with counsel to ensure full compliance.

§ 2.3(c) Interaction with State Laws Employers in federally regulated industries need to consult both state and federal law when conducting drug testing because both sets of rules can apply. For example, in Williams v. United Parcel Service, Inc., the plaintiff claimed that his employer improperly terminated him after he had failed a drug test.159 The plaintiff alleged that the employer’s actions did not comply with Oklahoma law, which requires that employers that require drug testing offer an employee assistance program to provide referral services for substance abuse counseling, treatment or rehabilitation (there is no such requirement under federal law). 160 The employer argued that its drug testing program was required under federal law, therefore, it 161 162 was exempt from the state law requirements. The court agreed with the employer. Similarly, in Belde v. Ferguson Enterprises, Inc., the plaintiff sued his employer for terminating him after he refused to take a drug test. The plaintiff alleged that the termination violated Minnesota law. 163 The employer argued that the plaintiff was subject to random testing under federal motor carrier regulations. The court determined that federal law permitted termination of an employee who refused to take a drug 158

United Food Commercial & Workers Int’l Union Local 588 v. Foster Poultry Farms, 74 F.3d 169 (9th Cir. 1995). 159 Williams v. United Parcel Servs., Inc., 527 F.3d 1135, 1138 (10th Cir. 2010). 160 527 F.3d at 1138–39. 161 527 F.3d at 1139. 162 527 F.3d at 1139. 163 Belde v. Ferguson Enters. Inc., 460 F.3d 976 (8th Cir. 2006).

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test, and that Minnesota law exempted from its coverage employers that are subject to, and comply with, federal drug testing requirements. The court noted in the alternative that the state law prohibited termination only on the basis of a positive test result, and did not govern an employer’s actions when an employee refuses a drug test.

§ 2.4 LEGAL CHALLENGES & RESTRICTIONS ON DRUG TESTING § 2.4(a) Constitutional Challenges by Public-Sector Employees § 2.4(a)(i) Fourth Amendment Challenges The Fourth Amendment to the U.S. Constitution prohibits “unreasonable” searches and seizures by governmental entities and has been fertile ground for legal challenges to public sector drug and alcohol testing. Under the Fourth Amendment, any governmental invasion of an individual’s legitimate expectation of privacy must be reasonable. Whether the invasion is reasonable is determined by balancing the government’s interests (such as public safety or the need for supervision, control and efficient operation in the workplace) against an employee’s privacy expectations. In two landmark cases in 1989, National Treasury Employees Union v. Von Raab 164 and Skinner v. Railway Labor Executives’ 165 Association, the U.S. Supreme Court analyzed whether different government-mandated drug-testing programs satisfied the Fourth Amendment’s “reasonableness” standard. Both programs were upheld as reasonable. For public-sector employees, the Fourth Amendment generally requires suspicion or wrongdoing for a drug test to be considered reasonable. However, in Skinner, the Supreme Court upheld suspicionless and random drug testing where there are “special needs, beyond the normal need of law enforcement.”166 Courts must balance five factors when evaluating “special needs” drug testing: 1. the nature of the privacy interest upon which the search intrudes; 2. the character of the intrusion on the individual’s privacy interest; 3. the nature of the governmental concern at issue; 4. the immediacy of the government’s concern; and 5. the efficacy of the particular means in addressing the problem. 167 In 1995, a third Supreme Court decision—which did not address workplace drug testing in particular— upheld random testing of student athletes, and contained language that endorsed drug-testing programs generally and random testing in particular.168 However, in 2002, the Court held that drug-testing programs, to be reasonable, must be designed to respond to an actual concern about illicit drug use and its

164

489 U.S. 656 (1989) (upheld drug testing of job applicants and employees seeking “sensitive” positions with the U.S. Customs Service because the government had a compelling interest in preventing employment of drug users in positions involving the interception of illegal drugs or requiring the possession of a firearm). 165 489 U.S. 602 (1989) (upheld blood, urine and/or breath testing of private railroad employees involved in a train accident pursuant to government regulations because the compelling governmental interest in ensuring public safety outweighed employees’ diminished privacy expectations in a highly regulated industry). 166 Skinner v. Railway Labor Executives Assoc., 489 U.S. 602, 619 (1989). 167 See, e.g., Krieg v. Seybold, 481 F.3d 512 (7th Cir. 2007); Shepherd v. City of E. Peoria, 2015 U.S. Dist. LEXIS 66947 (C.D. Ill. May 21, 2015). 168 Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995).

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effects, and cannot be justified solely by a desire to appear “tough on drugs.”169 Several courts have issued opinions regarding drug testing and privacy rights of public employees. 170 In National Federation of Federal Employees-IAM v. Vilsack, the Eighth Circuit Court of Appeals reversed a summary judgment decision for the Secretary of Agriculture (“Secretary”) and reasoned that when balancing the employees’ privacy interests against the Secretary’s interests to determine whether it was impractical for the government to require a warrant or some level of individualized suspicion, the Secretary failed to demonstrate that “special needs” justified the random drug testing of all the Job Corps Center employees. 171 The court opined that if the Secretary had presented evidence of a concrete problem of drug abuse among the workers, such evidence would have likely resulted in a decision in favor of the Secretary. 172 In contrast, the same court reversed a district court’s grant of a preliminary injunction, which had halted a state school’s mandatory drug-testing policy for students. 173 In that case, a technical college offered programs in the mechanical, electrical, civil and computer fields, many of which involved hands-on training in what could be classified as “safety-sensitive” positions. 174 The court rejected the plaintiffstudent’s Fourth Amendment argument, reasoning that the purpose of the college’s drug-testing policy is to “provide a safe, healthy, and productive environment” and that the defendant had a valid interest in deterring drug use among students engaged in programs posing significant safety risks to others. 175 Random drug testing may be upheld where the government’s interest in safety outweighs the diminished expectation of privacy. In International Union v. Winters, the Sixth Circuit Court of Appeals, in light of the State of Michigan’s proffered public safety concerns, upheld random drug testing by the Michigan Civil Service Commission for select civil service employees that performed services at or for state correctional institutions.176 The State claimed that employees with substance abuse problems may be vulnerable to influence by others who would bring drugs into the prison. Further, employees under the influence suffer impaired judgment, which could adversely impact security within the facility. The court found that these and the other public safety concerns proffered by the state overrode the intrusion on the Fourth Amendment rights of the employees. Therefore, no individualized suspicion was necessary to administer the drug tests. The court further held that the employees’ claim of invasion of privacy failed because they agreed to work in a heavily regulated industry and, therefore, agreed to a diminished expectation of privacy. 177 A drug testing program must also be narrowly tailored. In 2013, the Eleventh Circuit Court of Appeals considered: (1) the extent to which an executive order that mandates suspicionless drug testing of all state 169

Board of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822 (2002); see also Chandler v. Miller, 520 U.S. 305 (1997). 170 National Fed’n of Fed. Employees-IAM v. Vilsack, 681 F.3d 483 (D.C. Cir. 2012); Kramer v. City of Jersey, 455 F. App’x 204 (3d Cir. 2011); BNSF Ry. Co. v. United States DOT, 566 F.3d 200 (D.C. Cir. 2009); UAW, Local 1600 v. Winters, 385 F.3d 1003 (6th Cir. 2004). 171 Vilsack, 681 F.3d at 498–99. 172 Vilsack, 681 F.3d at 499. 173 Barrett v. Claycomb, 705 F.3d 315 (8th Cir. 2013). 174 705 F. 3d at 319. 175 705 F. 3d at 322. 176 385 F.3d 1003, 1012 (6th Cir. 2004). 177 385 F.3d at 1012; see also Lynch v. New York City, 131 S. Ct. 415 (2010); Buracker v. Berkeley Cnty. Council, 2013 W. Va. LEXIS 893 (Sept. 3, 2013) (right to privacy was not violated where sheriff deputy was subjected to a drug test based on a rumor he was using drugs); cf. Cordero v. City of Columbia, 2013 U.S. Dist. LEXIS 45847, at **13–14, 19-20 (D.S.C. Feb. 21, 2013) (suspicionless drug screening of employee in non-safety-sensitive position did not violate the Fourth Amendment where the employee provided oral consent to drug screening. The court noted in the alternative that controlling law does not prohibit unannounced drug testing of an employee in a non-safetysensitive position who has demonstrated repeated and recent drug use.).

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employees violates the Fourth Amendment; and (2) the propriety of the district court’s decision to enjoin the state from testing all state employees. 178 The court rejected the district court’s ruling that the executive order was facially unconstitutional for all job types, but reasoned that the district court must balance the governmental interests in a suspicionless search against each particular job category’s expectation of privacy. As to employees in safety-sensitive positions, the executive order most likely would be constitutional. Thus, the court vacated the district court’s order and remanded for further proceedings, where the state would have to meet its burden of demonstrating important special needs for each job category. 179

§ 2.4(a)(ii) Due Process Challenges The Fifth Amendment of the U.S. Constitution requires that, before a public employer may discipline its employees, it must accord them both procedural due process (notice and an opportunity for a hearing) and substantive due process. Due process arguments made against government testing programs generally allege that the tests are inaccurate or that the employee was punished without being afforded an opportunity to explain or contest the test results. Most challenges brought under this theory fail. 180 While due process guarantees apply only to public sector employers, private employers must recognize that represented employees have the right to be accompanied by a coworker at an investigatory interview that could result in disciplinary action. This right is derived from the U.S. Supreme Court’s decision in NLRB v. Weingarten 181 recognizing unionized employees’ rights to representation at investigatory interviews and has been applied by the National Labor Relations Board in connection with referrals of unionized employees for workplace drug testing. 182

§ 2.4(a)(iii) Equal Protection Challenges The Fourteenth Amendment to the U.S. Constitution prohibits a state from denying any person within its jurisdiction equal protection of the laws. If a public employer’s drug-testing program is applied only to certain employees or in certain situations, employees can argue that it violates their right to equal protection. Such challenges are also rarely successful.183

§ 2.4(a)(iv) Freedom of Religion Challenges The First Amendment to the U.S. Constitution guarantees that the government will not interfere with the free exercise of religion. While it is unlikely that drug testing would interfere with an individual’s freedom of religion, the use of drugs made unlawful for public use and possession may implicate the First Amendment. In Employment Division v. Smith, 184 a member of the Native American Church was fired from his job because of his sacramental use of peyote. He was denied unemployment compensation 178

AFSCME v. Scott, 717 F.3d 851, 857 (11th Cir. 2013). 717 F.3d at 858. 180 See, e.g., Copeland v. Philadelphia Police Dep’t, 840 F.2d 1139 (3d Cir. 1988) (no violation of due process where officer was aware of reason for test, was advised that he had tested positive, and was afforded notice and hearing on charge of illegal drug use before written charges were prepared); Everett v. Napper, 833 F.2d 1507 (11th Cir. 1987) (no violation of due process where firefighter received adequate notice and full hearing prior to termination for failure to submit to reasonable suspicion urinalysis). But see Burka v. New York City Transit Auth., 739 F. Supp. 814 (S.D.N.Y. 1990) (employer’s drug test violated due process because there was no adequate safeguard in testing procedures and disciplinary measures). 181 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). 182 Ralph’s Grocery Co., 361 N.L.R.B. No. 9 (2014). 183 See, e.g., Shoemaker v. Handel, 795 F.2d 1136 (3d Cir. 1986) (holding that the New Jersey Racing Commission’s regulations that allowed daily breathalyzer as well as random urine testing of jockeys—but not of officials, trainers, and grooms—did not violate equal protection); Burka v. New York City Transit Auth., 680 F. Supp. 590 (S.D.N.Y. 1988) (holding that the different treatment of alcohol users from perceived or actual users of illegal narcotics under drug-testing program did not violate equal protection). 184 494 U.S. 872 (1990). 179

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because, under Oregon law, he was fired for illegal conduct. The U.S. Supreme Court held that Oregon’s prohibition on the sacramental use of peyote did not violate the First Amendment’s guarantee of freedom of religion. However, the Religious Freedom Restoration Act, passed later, exempts Native American Indians from prosecution related to the sacramental use of peyote. Challenges alleging that drug tests required by private sector employers violate an individual’s religious beliefs are rare and generally unsuccessful.185

§ 2.4(b) Privacy Challenges by Public-Sector Employees Drug testing has been challenged by employees as a violation of privacy under both state law and the Fourth Amendment to the U.S. Constitution. These challenges typically fail as long as the employer: • complied with any applicable state laws governing drug testing; and • conducted the test with the subject’s consent and in a manner that was not offensive and would not reveal information unrelated to the test’s purpose. For example, in Men of Color Helping All Society, Inc. v. City of Buffalo, the Second Circuit Court of Appeals upheld the dismissal of firefighters’ invasion of privacy claims regarding a drug-testing policy that required the plaintiffs to sign medical releases permitting the sharing of rehabilitation-related information with the fire department in the event of a failed drug test. 186 The court reasoned that in light of the compelling safety concerns of the fire department and the “wide-latitude” afforded governments to manage their employees, the required medical releases were reasonable.187 A Colorado federal court dismissed an employee’s invasion of privacy claim, rejecting the argument that an employer’s requirement that medical marijuana patients report their doctor’s recommendations for medical marijuana constitutes “an unreasonable manner of intrusion or an intrusion for an unwarranted purpose.” 188 The court further ruled that the employee’s privacy was not invaded when he was subjected to the employer’s drug test by saliva samples because Colorado law specifically recognizes an employer’s right to conduct drug testing, and taking an employee’s saliva samples is not an offensive form of testing to a reasonable person. 189

§ 2.4(c) Americans with Disabilities Act (ADA) The Americans with Disabilities Act (ADA) prohibits discrimination against a “qualified individual with a disability because of the disability” with respect to “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” The ADA has a direct impact on workplace drug and alcohol programs. 190 185

See Cary v. Anheuser-Busch, Inc., 116 F.3d 472 (4th Cir. 1997) (rejecting employee’s claim that unstated religious beliefs, rather than opposition to testing, motivated his refusal to consent to the testing process). 186 529 F. App’x 20, 25 (2d Cir. 2013). 187 529 F. App’x at 25. 188 Curry v. MillerCoors, Inc., 2013 U.S. Dist. LEXIS 118730, at *12 (D. Colo. Aug. 21, 2013). 189 2013 U.S. Dist. LEXIS 118730, at **12–14; see also Slaughter v. John Elway Dodge Southwest/AutoNation, 107 P.3d 1165, 1171 (Colo. App. 2005) (rejecting an employee’s Fourth Amendment public policy argument and affirming dismissal of an employee’s invasion of privacy tort claim where the employer terminated the employee after she refused to re-take a drug test. The court opined that the tort required “an unreasonable manner of intrusion or an intrusion for an unwarranted purpose,” and under Colorado’s laws, the employer clearly had the right to conduct drug testing). 190 Public employers and government contractors or subcontractors are prohibited, under the Rehabilitation Act, 29 U.S.C. §§ 701 et seq., from discriminating in hiring practices on the basis of a physical disability. The Rehabilitation Act requires an employer to “reasonably accommodate” an otherwise qualified person who has a disability in

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§ 2.4(c)(i) Medical Exams & Inquiries The ADA permits employers to request medical exams of employees and applicants only following a conditional offer of employment (in the case of applicants) and in all cases only if job-related and consistent with business necessity. Drug tests are specifically exempted from the definition of “medical examination,” but alcohol tests are not. Therefore, alcohol tests may be conducted only if they are jobrelated and justifiable as a business necessity. 191 In states within the jurisdiction of the Ninth Circuit Court of Appeals, medical examinations must be conducted only after all other prerequisites to employment have been met. This means that an employer must complete all pre-hire drug testing before requesting a pre-hire alcohol test of prospective employees. 192

§ 2.4(c)(ii) Illegal Drug Use The ADA specifically provides that an individual with a disability does not include an individual who is “currently engaging” in the illegal use of drugs. For example, in McDaniel v. Mississippi Baptist Medical Center, a marketing employee at a substance abuse rehabilitation center relapsed into illegal drug use.193 He informed his employer, and the employer encouraged him to seek in-patient rehabilitation. While in rehabilitation, his employment was terminated and he sued, alleging violations of the ADA. The Fifth Circuit Court of Appeals affirmed the district court’s decision in favor of the employer. It found that the employee had engaged in illegal drug use by lying about his ailments to obtain prescription pain-relieving drugs. It also found that the employee’s drug use was recent enough for him to be considered a current drug user at the time he was terminated. As a result, the employee was not protected under the ADA as an individual enrolled in a rehabilitation program and not currently using drugs.194 The ADA does, however, protect drug addicts who either are participating in, or have completed, a supervised drug rehabilitation program and are no longer “current illegal drug users.” The EEOC Interpretive Guidance to the ADA regulations provides that: The term “currently engaging” is not intended to be limited to the use of drugs on the day of, or within a matter of days or weeks before, the employment action in question. Rather, the provision is intended to apply to the illegal use of drugs that has occurred recently enough to indicate that the individual is actively engaged in such conduct. 195 The courts generally have endorsed this approach, provided the employer acts on the basis of an individualized evaluation of the circumstances. For example, the Tenth Circuit Court of Appeals ruled that the relevant inquiry as to whether an individual is a former drug user is not limited to the number of days or weeks since the individual last engaged in illegal drug use. 196 Rather, the employer must base its decision on an individualized inquiry as to whether drug use is no longer a problem. The court specifically declined to hold as a matter of law that an individual could never establish that he or she was a former drug user if fewer than 30 days had passed since his or her last illegal use of a drug. 197 The statute itself permits employers to require individuals who have formerly abused illegal drugs to implement drug testing and other programs to ensure the individual does not resume the illegal drug obtaining employment. While the Rehabilitation Act does not protect individuals with existing drug or alcohol problems, it has been held to prohibit discrimination against individuals with past drug-use problems. D’Amico v. City of N.Y., 132 F.3d 145 (2d Cir. 1998); Davis v. Bucher, 451 F. Supp. 791 (E.D. Pa. 1978). 191 42 U.S.C. §§ 12112(d), § 12114(d). 192 See Leonel v. American Airlines, Inc. 400 F.3d 702 (9th Cir. 2005). Notably, prehire alcohol tests are, for a variety of reasons, uncommon. 193 877 F. Supp. 321 (S.D. Miss. 1994), aff’d, 74 F.3d 1238 (5th Cir. 1995). 194 See also Collings v. Longview Fibre Co., 63 F.3d 828 (9th Cir. 1995). 195 29C.F.R., § 1630.3, app. 196 Mauerhan v. Wagner Corp., 649 F.3d 1180 (10th Cir. 2011). 197 649 F.3d 1180.

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use. 198 The ADA also protects those who are erroneously regarded as illegally using drugs but, in fact, are not doing so. Under the ADA, illegal use of drugs “does not include the use of drug taken under supervision by a licensed healthcare professional,”199 except that the ADA does not protect use of prescribed marijuana under state law, given marijuana’s continued federal illegality. 200 To ensure that disciplinary action is not taken against an employee whose impairment is due to the ingestion of drugs under such medical supervision, the employee should be given the opportunity to discuss and explain test results.201 However, an employer’s policy of requiring employees to inform the employer of all legally prescribed medications has been found to violate the ADA absent a business-related need to know. 202 Finally, the ADA protects former drug addicts who are no longer using illegal drugs. In 2011, the EEOC filed a lawsuit against an employer alleging that the employer refused to hire an applicant in violation of the ADA because the applicant disclosed that he participated in a supervised methadone treatment program for a drug addiction. 203 The employer settled the case with the EEOC for $37,500 and entered into a two-year consent agreement that, among other things, required the employer to: conduct training for supervisors on the employer’s obligation to conduct an individualized assessment in determining whether an employee or applicant has a disability under the ADA; implement appropriate methods of determining whether an employee or applicant poses a direct threat under the ADA; and engage in an interactive process under the ADA when an employee or applicant requests a reasonable accommodation. 204

§ 2.4(c)(iii) Alcohol Use Greater ambiguity surrounds the issue of alcohol-related problems. The EEOC’s interpretive guidelines distinguish between alcohol and drugs—most notably, a current user of alcohol may be have a disability for purposes of the ADA, while a current user of drugs is not. However, even a current user of alcohol is not otherwise qualified if, for example, the alcohol is affecting the employee’s work performance or violates a work rule. 205 Nonetheless, employers should be particularly careful before taking disciplinary action with regard to an employee who is abusing alcohol. An employer must also be careful when interviewing prospective employees. According to the EEOC’s guidance, an employer may ask applicants alcohol-related questions (such as whether the applicant drinks or whether the applicant has ever been arrested for drinking and driving), but may not ask questions that may reveal that an applicant is an alcoholic (such as how much the applicant drinks or whether the applicant has participated in a rehabilitation program). 206 198

42 U.S.C. § 12114. 42 U.S.C. § 12114(6)(A). 200 See James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012), cert. denied, 133 S. Ct. 2396 ( 2013). 201 See Nielsen v. Moroni Feed Co., 162 F.3d 604 (10th Cir. 1998); Rowles v. Automated Prod. Sys., Inc., 92 F. Supp. 2d 424 (M.D. Pa. 2000); see also Jones v. City of Boston, 752 F.3d 38 (1st Cir. 2014) (“the ADA protects those who are erroneously perceived as drug addicts”). 202 See, e.g., Roe v. Cheyenne Mountain Conference Resort, 124 F.3d 1221 (10th Cir. 1997); Riechmann v. CutlerHammer, Inc., 95 F. Supp. 2d 1171 (D. Kan. 2000). If use would create a safety issue, employers may require reporting of such use but not, initially, identification of the underlying medication. 203 EEOC v. United Ins. Co. of Amer., No. 5:11-cv-00430 (E.D.NC.) (complaint filed Aug. 16, 2011). 204 EEOC, Press Release, United Insurance Company of America Pays $37,500 to Resolve EEOC Disability Discrimination Lawsuit, Jan. 23, 2012, available at http://www1.eeoc.gov//eeoc/newsroom/release/1-2312.cfm?renderforprint=1. 205 Bekker v. Humana Health Plan, Inc., 229 F.3d 662 (7th Cir. 2000); Burch v. Coca-Cola, 119 F.3d 305 (5th Cir. 1997); Nanos v. City of Stamford, 609 F. Supp. 2d 260 (D. Conn. 2009); see also Altman v. New York City Health & Hosps. Corp., 100 F.3d 1054 (2d Cir. 1996) (alcoholic chief of medicine who appeared at work while intoxicated was not qualified in light of public safety threat of undetected relapse). 206 EEOC, Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations 199

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In addition, while the ADA specifically provides that drug tests are not “medical examinations,” by exclusion it appears that alcohol tests are considered medical examinations. Therefore, alcohol tests of current employees are permitted only when job-related and consistent with business necessity. A 2012 decision by the New Jersey Court of Appeals relied upon this ADA provision to conclude that a uniformly imposed policy requiring random alcohol testing post-rehabilitation violated the New Jersey Law Against Discrimination. In that case, a long-term employee who voluntarily sought assistance with alcohol concerns was subjected to unannounced, follow-up alcohol testing following her return to work and eventually tested positive. The court noted that because the employee had never violated the employer’s policy before seeking rehabilitation and worked in a non-safety-sensitive position, the policy requiring testing and automatic termination following a positive test was direct evidence of an intent to discriminate against alcoholics.207 In a more recent decision, however, the Third Circuit Court of Appeals, which hears federal cases arising in New Jersey among other jurisdictions, concluded in Ostrowski v. Con-Way Freight, Inc. that an employer did not discriminate against an alcoholic employee when it required him to agree to abstain from any alcohol use at any time as a condition of return to work following rehabilitation and then terminated him when he admitted to off-the-job alcohol use soon thereafter. 208 Although the two decisions are difficult to reconcile, it is clear that the plaintiff in the case discussed in the paragraph above held a non-safety-sensitive job, while the plaintiff in the Ostrowski case was a regulated driver— suggesting that fact-based outcomes may be appropriate when the ADA’s direction that disability-related employment decisions be made on an individualized basis is followed. The EEOC has also been active in challenging random alcohol testing. In Equal Employment Opportunity Commission v. United States Steel Corp., the EEOC sought to bar U.S. Steel and its unions from bargaining and implementing a policy that required suspicionless alcohol tests for all probationary employees. 209 The company defended the legality of its policy on a number of grounds, the most significant of which was its claim that its random testing policy was job related and consistent with business necessity because it sought to control workplace hazards. Specifically, the company pointed out that, among other hazards, the jobs in question involved work in and around high-temperature ovens more than 25 feet above the ground and performing such jobs while under the influence of alcohol would pose a safety risk to employees and coworkers alike. The company argued that random alcohol testing has a deterrent effect on the use of alcohol and that the law does not require it to wait until an employee appears to be impaired to test for the presence of alcohol. The court agreed. In dismissing the case, the court held, “[t]here is no question that maintaining workplace safety is a legitimate and vital business necessity,” and noted that the legislative history on the ADA’s ban on medical exams acknowledged the wisdom of existing federal regulations requiring drug and alcohol testing of commercial drivers, airplane pilots, flight attendants, nuclear power workers, police officers and firefighters.210 Noting that workers in these positions affected public safety, the court nevertheless concluded “there is no reason to deem the lives of those in the general public less worthy of protecting than the lives of one’s co-workers.” 211 Several states also have statutes addressing discrimination based on disabilities that protect drug addicts and alcoholics, and they may be more protective of these individuals than the ADA.

§ 2.4(c)(iv) Prescription Drug Use Employers may not discipline employees for lawfully using prescription drugs, although they may require (Oct. 10, 1995). 207 A.D.P. v. ExxonMobil Research & Eng’g Co., 54 A.3d 813 (N.J. Super. Ct. App. Div. 2012). 208 543 F. App’x 128 (3d Cir. 2013). 209 2013 U.S. Dist. LEXIS 22748 (W.D. Pa. Feb. 20, 2013). 210 2013 U.S. Dist. LEXIS 22748, at **42, 54–55, 64–65. 211 2013 U.S. Dist. LEXIS 22748, at *65.

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that the use of such drugs not negatively affect the employees’ ability to perform safely. The abuse of a prescription drug is illegal, however, as is the use of a medicine not prescribed for that person, and need not be accommodated. 212 In 2010, litigation initiated by the EEOC alleged that an employer terminated its workers for engaging in lawful prescription drug use based on unfounded safety concerns. 213 The Sixth Circuit Court of Appeals held that nondisabled plaintiffs could not challenge the tests as medical examinations and remanded the case.214 In response, the federal district court allowed the plaintiffs to proceed on the theory that the tests were unlawful medical inquiries (from which all workers are protected). 215 Following a trial, a jury found against the employer and awarded damages in favor of at least one of the plaintiffs.216 Eventually, the EEOC settled with the company for a reported $750,000, an injunction against conducting medical examinations or revealing medical information other than as permitted by law and several other promises. 217 In another case, the Second Circuit Court of Appeals concluded that a trucking and transportation company was entitled to demand that its drivers report all prescription drug use as a part of its efforts to ensure they were qualified to drive—but only because federal trucking regulations prohibit all use of drugs absent medical assurances that the driver could use them and still work safely. 218

§ 2.4(d) Family and Medical Leave Act (FMLA)

The federal Family and Medical Leave Act (FMLA) 219 impacts employers’ implementation of drug-free workplace programs. The DOL has issued guidance making it clear that drug and alcohol addictions may qualify as “serious health conditions” for which eligible employees may take job-protected leave to seek treatment. 220 A DOL opinion letter, nevertheless, endorses drug testing, subject to certain limitations, 221 after employees return from FMLA leave. However, an employee’s absence caused by substance abuse does not qualify for FMLA leave. Nor must an employer offer job-protected leave to pursue rehabilitation to an employee who has been determined to be in violation of the employer’s substance-abuse policy, if the employee ordinarily would be subject to discipline under that policy. 222 A decision by the Seventh Circuit Court of Appeals, Ames v. Home Depot 223 illustrates the point. In that case, the employee informed her employer that she had an U.S.A., Inc., alcohol problem and requested assistance through the employer’s employee assistance program. Until that time, her work performance had been unaffected. However, after being granted leave, she violated the terms of her return-to-work agreement and was terminated. She checked into the hospital a week later and sued, alleging that her employer had violated her FMLA rights by failing to grant her additional leave. The district court rejected that claim and the appeals court agreed, ironically crediting her testimony that her alcoholism did not affect her ability to work and holding that she did not have a serious health condition for which she was seeking treatment on the date of her termination. The court further noted that the employee failed to meet the employer’s legitimate expectations when she came to work under the 212

42 U.S.C. § 12111(6). See Bates v. Dura Auto. Sys., 625 F.3d 283 (6th Cir. 2010), remanded, 2010 U.S. Dist. LEXIS 133410 (M.D. Tenn. Dec. 15, 2010). 214 625 F.3d 283 (6th Cir. 2010). 215 Bates v. Dura Auto. Sys., Inc., 2010 U.S. Dist. LEXIS 133410 (M.D. Tenn. Dec. 15, 2010). 216 Bates v. Dura Auto. Sys., Inc., 2011 U.S. Dist. LEXIS 92681 (M.D. Tenn. Aug. 18, 2011). 217 EEOC, News Release, Dura Automotive Systems to Pay $750,000 To Settle EEOC ADA Lawsuit, Sept. 5, 2012, available at http://www.eeoc.gov/eeoc/newsroom/release/9-5-12.cfm. 218 EEOC v. J.B. Hunt Transport, Inc., 321 F.3d 69 (2d. Cir. 2003). 219 29 U.S.C. §§ 2601 et seq. 220 See, e.g., U.S. Dep’t of Labor, Wage & Hour Div. Opinion Ltr. FMLA-69 (July 21, 1995). 221 U.S. Dep’t of Labor, Wage & Hour Div. Opinion Ltr. FMLA2004-4 (Oct. 25, 2004). 222 See Renaud v. Wyoming Dep’t of Family Servs., 203 F.3d 723 (10th Cir. 2000); Chaffin v. John H. Carter Co., 179 F.3d 316 (5th Cir. 1999); Raymond v. Albertson’s, Inc., 38 F. Supp. 2d 866 (D. Nev. 1999). 223 629 F.3d 665 (7th Cir. 2011). 213

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influence of alcohol and that the company “need not accommodate an alcoholic by overlooking such violations of workplace rules.” 224

§ 2.4(e) Title VII of the Civil Rights Act (“Title VII”) Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, religion, sex or national origin. An employer must ensure that its drug-testing program will be applied to individuals equally. Subjective or inconsistent application of a drug-testing program can lead to an allegation by an employee that he or she is being singled out for drug testing because of his or her race, color, religion, sex or national origin. Unfortunately, because of the intersection of drug and alcohol testing rules and the law against disability discrimination (which often requires individualized assessments and responses to individuals with disabilities seeking accommodation), drug and alcohol testing policies often must be applied flexibly. If challenged, however, an employer may be called upon to demonstrate that its decision to apply the policy inconsistently was for a legitimate, non-discriminatory reason. Ultimately, potential Title VII liability underscores the importance of having a clear policy that is disseminated to all employees. Any deviations from the stated practices must be carefully considered and the reasons therefor documented. Although such suits are rare, they do occur.225

§ 2.4(f) Federal Drug-Free Workplace Act (DFWA) 226

The federal Drug-Free Workplace Act (DFWA) requires covered contractors (those with federal contracts for services valued above the simplified federal acquisition threshold, at present $150,000 or more) 227 and grantees receiving any amount of federal funds to certify to the appropriate federal agency that they are providing a drug-free workplace. The DFWA requires specific actions, such as publishing and distributing a policy statement notifying employees that drug use in the workplace is prohibited, and establishing a drug awareness program to educate employees about the dangers of drug abuse. Moreover, employers must require employees to report any convictions for drug-related activities occurring in the workplace and the employers, in turn, must report such convictions to the federal agencies with which they work, as well as take disciplinary or rehabilitative action with respect to reporting employees. Employers that fail to comply or that have a high number of employee convictions risk debarment.

§ 2.4(g) Health Insurance Portability & Accountability Act (HIPAA) The Health Insurance Portability and Accountability Act (HIPAA) protects an individual’s right to privacy in certain health information. Generally speaking, HIPAA privacy rules do not affect drug and alcohol test results reporting because tests conducted as part of a drug-testing program or workers’ compensation scheme are not HIPAA-regulated and/or because many employers do not fall within HIPAA’s purview (e.g., because they are not a health care provider). DOT-mandated drug and alcohol programs are HIPAA-exempt because they are mandated by law. Fitness-for-duty examinations, however, may be HIPAA-protected, and employers should ensure appropriate authorizations are executed if the employer needs to review the results of such examinations. HIPAA will also affect the release of employee rehabilitation and treatment information, particularly if the employer maintains an in-house employee assistance program. 228 For further discussion of HIPAA, see LITTLER ON DATA PROTECTION & RELEASE OF PERSONAL INFORMATION.

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629 F.3d 665 (citing 42 U.S.C. § 12114(c)(4)). See Johnson v. J. B. Hunt Transp., Inc., 280 F.3d 1125 (7th Cir. 2002); Jones v. Ottenberg’s Bakers, Inc., 999 F. Supp. 2d 185 (D.D.C. 2013). 226 82 41 U.S.C. §§ 8101 et seq.; see also 48 C.F.R. §§ 23.500 et seq. 227 83 48 C.F.R. § 2.101 (definition of “simplified acquisition threshold”). 228 Treatment records kept by any medical provider that receives federal funds are also protected from disclosure, even pursuant to a subpoena, by federal law. 42 U.S.C. §§ 290dd-3(b), 290ee-3(b); 42 C.F.R. § 2.11. 225 81

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§ 2.4(h) Fair Credit Reporting Act (FCRA)

The Fair Credit Reporting Act (FCRA) 229 prevents unreasonable or careless invasion of the privacy of a consumer by restricting dissemination of consumer credit reports. By characterizing drug and alcohol test results as consumer reports, some employees have challenged drug and alcohol testing under the FCRA. In Hodge v. Texaco, Inc., 230 the Fifth Circuit Court of Appeals ruled that the FCRA applies to employee drug test reports. The court then ruled in favor of the defendant, saying that the FCRA’s “transactions and experiences” exemption applied because the drug test report included information solely as to “transactions or experiences between the consumer and the person making the report.” 231 However, the court also said there was “no basis to conclude that medical-type reports were meant to be excluded from [the FCRA’s] coverage.” In fact, the Federal Trade Commission, which has enforced the FCRA, takes the position that such records may be subject to FCRA requirements. 232 Therefore, employers should follow FCRA notice and disclosure requirements when using third-party consumer reporting agencies to gather and report test results. For further discussion on FCRA, see LITTLER ON BACKGROUND SCREENING & PRIVACY RIGHTS IN HIRING.

§ 2.4(i) National Labor Relations Act (NLRA) In addition to the above general legal constraints, additional issues arise when developing and implementing drug and alcohol programs for unionized employees. A unionized employer must negotiate regarding testing of employees but, except within the construction industry, generally is not required to negotiate regarding the testing of applicants.233 Of course, all testing 234 programs must be implemented fairly and in a manner that does not single out union supporters. Even when the employer is implementing a testing program as required by the DOT regulations, if the employer intends to take disciplinary action following a positive test or in any other way beyond what is required under the regulations, the employer must ensure that it has satisfied its obligation to bargain in good faith. In addition to the obligation to bargain over the implementation of testing, many collective bargaining agreements also provide that disputes over new work rules, such as drug testing, are subject to arbitration. Once a policy has been implemented, however, an employer’s failure to implement testing immediately does not create a duty to renegotiate the program, so long as the employer has not affirmatively tolerated the conduct prohibited by the rule. 235 A number of courts have considered the issue of the extent of an arbitrator’s authority to reinstate employees who have tested positive for illicit drug or inappropriate alcohol use in violation of the employer’s policy. If the terms of the collective bargaining agreement so permit, an arbitrator may order that an employee disciplined under a drug abuse or drug-testing policy be reinstated or awarded other relief as appropriate. The U.S. Supreme Court held that, although there is a strong public policy against using drug-or alcohol-impaired employees in safety-sensitive jobs, there is no such policy against arbitral awards reinstating such workers to safety-sensitive positions. 236 229

15 U.S.C. §§ 1681 et seq. 975 F.2d 1093 (5th Cir. 1992). 231 Accord Salazar v. Golden State Warriors, 124 F. Supp. 2d 1155 (N.D. Cal. 2000) (private investigator’s report and videotape suggesting cocaine use fell within transactions and experiences exemption to FCRA). 232 See http://www.ftc.gov/os/statutes/fcra/islinger.shtm. 233 See, e.g., Union-Tribune Pub. Co., 353 N.L.R.B. 11 (2008); Johnson-Bateman Co., 295 N.L.R.B. 180 (1989). But see In the Matter of the City of New York v. Patrolmen’s Benevolent Ass’n of the City of N.Y., Inc., 897 N.Y.S.2d 382 (2009) (holding that the New York Police Department Commissioner is not bound by collective bargaining when choosing to phase out the use of urine samples in favor of hair analysis when conducting drug tests on the police force). 234 See EPI Const. Co. v. N.L.R.B., 324 F. App’x. 6 (D.C. Cir. 2009). 235 Intrepid Museum Found., 335 N.L.R.B. 1 (2001) (drug policy adopted in 1990 still in effect although employer opted not to test employees until 1997). 236 Eastern Associated Coal Corp. v. United Mine Workers of Am., 531 U.S. 57 (2000); see also Dickenson-Russell 230

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A unionized employer also must consider the rights articulated in NLRB v. J. Weingarten, Inc.237 In Weingarten, the Supreme Court held that an employee can request union representation at any meeting where he or she “reasonably believes that the investigation will result in disciplinary action.”238 Under the Weingarten rule, an employee generally is entitled to have a union representative present during any interrogation, which probably also includes at least for-cause requests for drug testing, provided such a representative is reasonably available.

§ 2.5 MARIJUANA LEGALIZATION EFFORTS & THE WORKPLACE Half the states—Alaska, Arizona, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, 239 Texas, Vermont and Washington—and the District of Columbia have enacted legislation that purports to legalize the use of marijuana to treat serious health conditions, although several have yet to implement those laws. 240 These laws provide protection against state criminal prosecution for patients who use marijuana (and sometimes other drugs not legally available by prescription) to treat their illnesses and for physicians who may recommend or prescribe its use. Many of these laws set up state-based marijuana distribution centers and many of them provide affirmative employment-related protections, such as restrictions on adverse action based on a positive test result absent a showing of impairment. Some laws, like those in California and Colorado, authorize the use of marijuana for a wide range of medical conditions while others (e.g., New Hampshire and New Mexico) limit access to a smaller group of citizens with serious medical conditions.

§ 2.5(a) Interaction with Employer Substance Abuse Programs Some of the state measures conflict with employer programs designed to eliminate substance abuse by workers. For example, employees using medical marijuana in these jurisdictions may claim they have a disability and are entitled to protection from discrimination on the basis of their disability. Permitting them to use marijuana, they claim, is a reasonable accommodation of their condition as a matter of state law. At the same time, recent marijuana use continues to disqualify individuals from protection under the ADA. 241 The Arizona, Connecticut, Delaware, Maine, Minnesota and Rhode Island laws require employers to accommodate the use of medical marijuana by employees or applicants in certain circumstances, although whether those laws will survive legal challenge is an open question. To date, no state supreme court has held that an employer must accommodate medical marijuana use—for the most part, concluding that state law cannot preempt federal laws that make such use unlawful. For example, in Ross v. RagingWire Telecommunications, Inc., the California Supreme Court ruled that California employers have no duty to accommodate medical marijuana users.242 In that case, a job applicant challenged the decision of the employer to not hire him after he tested positive for marijuana. Although California voters have “decriminalized” the use of marijuana by residents with health conditions, the court held, they did not simultaneously modify the state’s employment laws. Recognizing that California has authorized employers to test job applicants for marijuana use and to decline to hire Coal Co. v. United Mine Workers of Am., 840 F. Supp. 2d 961 (W.D. Va. 2012) (following Eastern Associated Coal Corp. and upholding arbitrator’s award of reinstatement to miner discharged for illegal drug use). 237 420 U.S. 251 (1975). 238 420 U.S. at 257–58. 239 The Rhode Island law was set to expire on June 30, 2007, but the “sunset provision” was deleted through legislative action. See R.I. GEN. LAWS § 21-28.6-11. 240 Additionally, more than 10 other states have enacted “cannabidiol” laws permitting limited use of cannabis extracts (e.g., Alabama, Florida, Georgia, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, South Carolina, Tennessee, Utah, Virginia, Wisconsin). 241 See James v. City of Costa Mesa, 684 F.3d 825 (9th Cir. 2012) (ADA does not prohibit discrimination on the basis of marijuana use, even when used as permitted by state law). 242 174 P.3d 200 (Cal. 2008); see also Washburn v. Columbia Forest Products, Inc., 134 P.3d 161 (Or. 2006).

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those who test “positive,” the California Supreme Court concluded that the use of marijuana is not equivalent to the use of prescription medicines prescribed and used in accordance with federal law. State employment laws also appear to have been undisturbed by the addition of state marijuana laws. In 2012, the Sixth Circuit Court of Appeals affirmed a lower court’s decision that held that an employee’s complaint alleging that his employer terminated his employment in violation of the Michigan Medical Marihuana Act (MMMA) failed to state a claim upon which relief could be granted.243 The court reasoned that the MMMA, which permits individuals to purchase and use marijuana for medicinal purposes, does not regulate private employment actions. The court noted that courts interpreting similar laws in other states have reached the same conclusion. Similarly, in Curry v. MillerCoors, Inc., in addition to dismissing the plaintiff’s privacy tort claims, the court dismissed the plaintiff’s disability discrimination claims where the plaintiff argued his marijuana use was within the limits of his medical license for marijuana and thus his termination for failing a drug test constituted employment discrimination.244 The court held that the employee’s discrimination claim “does not pass muster because a positive test for marijuana, whether medical or any other use, is a legitimate basis for discharge under Colorado law.” 245 The court further opined that the Colorado disability discrimination law “does not extend so far as to shield a disabled employee from the implementation of his employer’s standard policies against employee misconduct.” 246 For employers with regulated workers subject to DOT drug and alcohol use and testing rules, the legal status of marijuana is far more clear. Specifically, pursuant to the DOT’s Drug and Alcohol Testing Regulation, 247 “medical marijuana” is not an authorized valid medical explanation for a transportation worker’s positive drug test result. Therefore, Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended or prescribed “medical marijuana.” However, employers in nonregulated industries must take care to consider their position because the law is unsettled, particularly in states with medical marijuana laws providing affirmative protections for employment. In these states, federal illegality should continue to be a basis upon which an employer could, for example, take an adverse employment action against an employee based on a positive test result, but employers taking this approach will have to make “new law” in those states, if challenged.

§ 2.5(b) Federal Government’s Treatment of State Marijuana Laws In 2005, the U.S. Supreme Court ruled that state laws authorizing the use of medical marijuana to treat an illness do not insulate drug distributors and users from federal law making that behavior illegal.248 Although the federal government has in recent years disclaimed any interest in prosecuting individuals who use marijuana in accordance with state laws, federal authorities have at times vigorously pursued those who cultivate and distribute marijuana. In October 2009, the U.S. Department of Justice (DOJ) issued guidelines for federal prosecutors in states that have enacted laws authorizing the use of “medical marijuana.” According to these guidelines, people who use marijuana for medical purposes and those who distribute it to them should not face federal prosecution, provided they act according to state law. In a memorandum to federal prosecutors, the DOJ stated it was committed to the “efficient and rational use” of its resources and that prosecuting patients and distributors who are in “clear and unambiguous compliance” with state laws did not meet that standard. However, early in 2011, a number of letters were sent to state lawmakers by U.S. Attorneys around the country stating that the U.S. government would continue to prosecute entities and individuals 243 244 245 246 247 248

Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012). 2013 U.S. Dist. LEXIS 118730, at *3 (D. Colo. Aug. 21, 2013). 2013 U.S. Dist. LEXIS 118730, at *7. 2013 U.S. Dist. LEXIS 118730, at *8. 49 C.F.R. § 40.151(e). Gonzales v. Raich, 545 U.S. 1 (2005).

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who supply marijuana to users. 249 One such letter caused the Washington State governor to veto legislation that would have created state-run marijuana dispensaries. 250 In late June 2011, the Obama administration issued guidance suggesting that a state-run medical marijuana program would not become a target for federal enforcement if its operation is kept small and controlled.251 In August 2013, the Office of the Attorney General counseled U.S. Attorneys to prioritize enforcement of marijuana laws on an individual basis and recognize that states legalizing marijuana in some form that also implement “strong and effective regulatory enforcement systems” may be “less likely to threaten” federal marijuana enforcement priorities.252 In July 2011, the U.S. Drug Enforcement Administration (DEA) announced its long-awaited decision denying a petition lodged by a marijuana advocacy organization to reclassify marijuana under the Controlled Substance Act from Schedule I (i.e., a drug with little or no medical benefit and a significant likelihood of abuse) to Schedule II (i.e., a drug with a high potential for abuse, but with accepted medical uses), which would permit some federally authorized use of the drug. 253 In 2013, a federal lawsuit challenging that decision failed before the District of Columbia Circuit Court of Appeals.254

§ 2.7 ADDRESSING SUBSTANCE ABUSE THROUGH MEANS OTHER THAN TESTING § 2.7(a) Antidrug & Alcohol Policies & Education Many employers address drugs and alcohol in the workplace through means other than, or in addition to, testing. A common alternative approach is a policy prohibiting the use, sale, possession, etc., of drugs and/or alcohol combined with employee education. Indeed, this is the approach adopted and required by the federal and most state drug-free workplace acts. A study conducted by the American Management Association of its member companies suggests that corporate drug-free workplace programs that combine employee and supervisor education with drug testing are most effective at deterring and detecting employee drug use. 255

§ 2.7(b) Investigation by Undercover Agents or Drug Dogs Various agencies and individuals provide undercover investigation in the workplace. Although investigations conducted by undercover agents may take many forms, typically one or more agents are hired into a position to work alongside the regular workforce. In this dual role, the agent investigates drug and alcohol infractions, and, in particular, drug dealing among coworkers. This type of investigation may take several months, because the agent needs to gain the confidence of employees to detect illegal activities. Once this confidence is established, additional time is needed for the agent to complete the investigation. Although an undercover agent may be effective in gathering information concerning drug violations, an 249

Available at http://www.justice.gov/usao/az/. See http://www.governor.wa.gov/speeches/speech-view.asp?SpeechSeq=220. 251 See http://www.nj.com/news/index.ssf/2011/11/new_jersey_medical_marijuana.html. 252 U.S. Dep’t of Justice, Office of the Attorney General, Guidance Regarding Marijuana Enforcement, James M. Cole, Deputy A.G., Aug. 29, 2013. 253 Denial of Petition to Initiate Proceedings to Reschedule Marijuana, 76 Fed. Reg. 40,552 (July 8, 2011). 254 Americans for Safe Access v. Drug Enforcement Admin., 706 F.3d 438 (D.C. Cir. 2013), cert denied, 134 S. Ct. 267 (2013). 255 American Management Association, Medical Testing 2004 Survey (2004); see also SHRM, Drug Testing Efficacy Poll (2011) (suggesting that absenteeism and workers’ compensation rates decreased when drug testing programs were implemented), available at http://www.shrm.org/research/surveyfindings/articles/pages/ldrugtestingefficacy.aspx. 250

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improperly conducted investigation potentially subjects the employer to legal liability. For example, an employee might claim a violation of privacy rights if the investigation intrudes into his or her private affairs, or results in a disclosure of personal or false information. Moreover, an improperly conducted interview or interrogation can result in claims of intentional infliction of emotional distress and/or false imprisonment. An employee who is terminated as a result of an investigation may assert a claim for wrongful discharge and attempt to show that the investigation was conducted improperly. More employers are turning to scent-trained dogs to detect the presence of drugs on premises or in parking lots. The dogs may “alert,” leading to a request for a further search. Such “searches” are not generally objectionable from a privacy perspective. Finally, an employer that is using undercover agents to detect drug abuse and who also is undergoing organizing or hostile union activity may be charged with interfering, restraining or coercing employees in the exercise of their collective bargaining rights in violation of the National Labor Relations Act (NLRA). 256 Accordingly, an employer that desires to use undercover investigations must consider these potential legal liabilities, engage a qualified investigating agency and consult with competent counsel.

§ 2.7(c) Electronic Surveillance/Recording of Employee Conversations The federal Omnibus Control and Safe Streets Act of 1968 and statutes in about half the states restrict an employer’s use of electronic eavesdropping devices to intercept employees’ conversations where the participants to the conversation do not know they are being monitored. Accordingly, an employer should not electronically monitor conversations between employees unless the employer previously has advised the employees that their conversations could be monitored and has obtained their written consent to the monitoring.

§ 2.7(d) Surveillance of Physical Premises Use of closed-circuit television is generally permissible in the workplace as long as it is not done where employees have a reasonable expectation of privacy. 257 Thus, the use of closed-circuit television in areas designated for the health and personal comfort of employees or for safeguarding their possessions (rest rooms, locker rooms, lounges, and the like) should be avoided. Because employees are more likely to engage in onsite drug and/or alcohol use in private areas, if at all, surveillance may not accomplish what the employer intends it to accomplish. An employer subject to a collective bargaining agreement is required to bargain over the installation of closed-circuit television. In Colgate-Palmolive Co., 258 the National Labor Relations Board ruled that an employer must bargain with the union representing the employees over the installation of cameras in the workplace. Even if an employer gains the consent of the union to implement such measures, however, that agreement will not justify an intrusion that would otherwise be illegal.259 For a more in-depth discussion of video monitoring and surveillance, see LITTLER ON EMPLOYEE MONITORING. 256

See Eldeco v. NLRB, 132 F.3d 1007 (4th Cir. 1997) (denying enforcement of Board order following implementation of preemployment testing policy one week after strike because policy applied fairly). 257 See Trujillo v. City of Ontario, 428 F. Supp. 2d 1094 (C.D. Cal. 2006); Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174 (1st Cir. 1997) (employees had no reasonable expectation of privacy against video surveillance in open workplace). 258 323 N.L.R.B. 515 (1997); see also Anheuser-Busch, Inc., 342 N.L.R.B. 560 (2004), enforced sub nom. Brewers & Maltsters, Local Union No. 6 v. NLRB, 414 F.3d 36 (D.C. Cir. 2005). 259 See Cramer v. Consolidated Freightways, Inc., 255 F.3d 683 (9th Cir. 2001) (employer could not justify video cameras and listening devices behind two-way mirrors in employee bathrooms in violation of state privacy law by relying on bargaining agreement discussion of use of video cameras).

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§ 2.7(e) Searches of Offices, Desks, Lockers, etc. Generally, any government search in violation of a person’s reasonable expectation of privacy without a warrant is unreasonable, thus, violates the Fourth Amendment. The U.S. Supreme Court recognizes an exception to the warrant requirement for a public employer’s search of its employees’ workplaces. In such searches, where the public employee has a reasonable expectation of privacy in the workplace, the public employer will not violate the Fourth Amendment provided the search is reasonable at inception (e.g., for noninvestigatory, work-related purposes; investigation of work-related misconduct) and reasonable in scope. 260 In O’Connor v. Ortega, the Court held that public employees have a reasonable expectation of privacy in their offices, desks and files, but that this expectation may be reduced by an employer’s actual practices or regulations. 261 The Sixth Circuit Court of Appeals held that a warrantless search of employee lockers at a U.S. Postal Service facility did not violate the Fourth Amendment because the search was performed in accordance with waivers indicating lockers may be searched, signed by the employees, and pursuant to their collective bargaining agreement, thus, the employees had no reasonable expectation of privacy. 262 In another Sixth Circuit case, the court found a postal service employee had no reasonable expectation of privacy in the contents of a jacket hanging in a locker he shared with a coworker where the employee had signed a form acknowledging the postal inspectors’ authority to search the locker at any time. 263 In the public employment setting, what constitutes the “workplace” may be more difficult to discern in regards to personal items brought to work. The Supreme Court has stated that “[t]he workplace includes those areas and items that are related to work and are generally within the employer's control.”264 Courts have found no Fourth Amendment violations for search of personal items: (1) where the items searched were in the employee’s office and used primarily for purposes related to employees’ employment; 265 and 266 (2) where the employees were on notice that their personal items were subject to search. A notice at parking lot entrances reflecting that vehicles entering or exiting the lot would be “subject to search” has been held to be insufficient to establish consent, to defeat a challenge under the Fourth Amendment prohibiting government-instigated unreasonable searches and seizures. 267 By contrast, a private employer probably will not violate employee privacy rights by inspecting employees’ desks and lockers if the employer has a clearly established policy that desks and locker— although assigned to employees—remain company property and are subject to search at any time for any reason or for no reason at all. Advice of counsel should be obtained. For further discussion of searches in the employment setting, see LITTLER ON EMPLOYEE MONITORING. 260

480 U.S. 709, 711-12, 725-26 (1987). 480 U.S. at 717. 262 American Postal Workers Union v. U.S. Postal Serv., 871 F.2d 556 (6th Cir. 1989). 263 United States v. Broadus, 7 F.3d 460, 464 (6th Cir. 1993). 264 O’Connor, 480 U.S. at 715. 265 Gossmeyer v. McDonald, 128 F.3d 481, 490 (7th Cir. 1997) (upholding the search of employee-purchased filing cabinet and storage unit located in her office because: they were purchased primarily for storage of work-related materials, they were purchased due to a lack of storage space in her office, and the supervisor had a key to storage unit); cf. James v. Hampton, 592 F. App’x 449 (6th Cir. 2015) (finding that employee-purchased safe kept in her office at work, which was used primarily for her personal use to store personal items and kept locked was not part of the “workplace”). 266 United States v. Gonzalez, 300 F.3d 1048, 1054-55 (9th Cir. 2002) (upholding search of a public employee's personal backpack upon his leaving work because he had been notified that personal belongings were subject to search at any time to discourage employee theft, and search did not go beyond scope appropriate to search for stolen merchandise). 267 McGann v. Northeast Ill. Reg’l Commuter R.R. Corp., 8 F.3d 1174 (7th Cir. 1993). 261

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§ 2.8 SUBSTANCE ABUSE: REHABILITATION & PREVENTION § 2.8(a) Providing an Opportunity for Rehabilitation Employers subject to the federal Family and Medical Leave Act (FMLA) must allow qualifying employees to take job-protected leave to seek treatment for drug addiction or alcoholism, which are considered serious health conditions under the FMLA. In addition, some states require an employer to permit an employee to enter into a rehabilitation program in lieu of termination following a first positive drug test. This is true in Maine, Minnesota, Puerto Rico, Rhode Island and Vermont, as well as in Iowa for employers with more than 50 employees for eligible employees who test positive for alcohol. California requires an employer with 25 or more employees to reasonably accommodate any employee who decides voluntarily to participate in a drug or alcohol rehabilitation program, as long as the accommodation does not impose an undue hardship on the employer. 268 The employer is not required, however, to provide time off with pay, except to the extent that an employee uses accrued sick leave.269 Moreover, an employer is not prohibited from discharging an 270 employee who, due to current alcohol or drug use, is unable to perform his or her job safely. The California law does not support a claim for wrongful discharge in violation of public policy, as it addresses the rights of both employers and employees, and does not specifically prohibit any employer conduct. 271 Employers that are not required to provide employees with an opportunity to pursue rehabilitation should, nonetheless, consider offering this option. As discussed earlier, drug abuse prevention programs that include employee assistance or rehabilitation are generally more effective at achieving drug-free workplaces. Most commonly, employers offer employees an opportunity to seek rehabilitation voluntarily without disciplinary consequences so long as the employee comes forward before the employer discovers that the employee has violated the drug-free workplace policy or engaged in sub-par performance. This policy gives employees an incentive to seek assistance earlier, rather than later.

§ 2.8(b) Employee Assistance Programs Many employers have instituted employee assistance programs (EAPs) to provide treatment and counseling for their employees’ drug-and alcohol-related financial, emotional or other personal problems. Other companies have contracted with EAPs that minimally provide evaluation and referrals to substanceabuse treatment providers, as appropriate. EAPs enable employers to address the issue of drugs in the workplace in a nonthreatening and cost-effective manner. The goals of an EAP can be both rehabilitation and prevention. Although employers may be reluctant to incur the cost of instituting an EAP, companies faced with a pervasive drug problem already are paying a high price in absenteeism, accidents, workers’ compensation claims, poor performance and medical costs. Successful treatment can reduce these expenses considerably, and the implementation of an EAP can improve employee morale by demonstrating that the employer is addressing a difficult issue in a humane and thoughtful manner. Finally, EAPs are increasingly available through consortiums of smaller businesses at very reasonable cost to employer participants. An EAP may be established as an in-house or outside program, or may be a combination of the two. Professional consultants who specialize in assisting employers in setting up such programs are also available. An EAP may offer a number of different services. Some EAPs are essentially referral centers, directing employees to proper treatment provided by outsiders. Other EAPs not only provide referrals, but also offer limited treatment services. EAPs also can educate employees about the dangers of substance 268 269 270 271

CAL. LAB. CODE § 1025. CAL. LAB. CODE § 1027. CAL. LAB. CODE § 1025. Lamke v. Sunstate Equip. Co., L.L.C., 387 F. Supp. 2d 1044 (N.D. Cal. 2004).

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abuse, the company’s policies regarding controlled substances, and the options available to an employee who is concerned about his or her own use of drugs or alcohol. Referral to an EAP may occur in several different ways. Under a voluntary referral approach, employees are encouraged to seek help on their own. Mandatory referrals occur when, following a violation of employer rules, an employer is willing to retain an employee. When a mandatory referral to an EAP is made, it is best to get the terms of the agreement in writing. By doing so, the employee knows what is expected, and the employer can avoid claims of discrimination and retaliation if it takes disciplinary action against an employee who fails to comply with the agreement. Employers also must understand that they can refer employees for evaluation but should not require them to complete any treatment not specifically prescribed for the employee by a medical professional. 272

§ 3 PRACTICAL GUIDELINES FOR EMPLOYERS § 3.1 POLYGRAPH TESTS: EMPLOYER GUIDELINES Although federal law prohibits most private-sector employers from requiring, requesting or suggesting that an employee or job applicant submit to a polygraph or lie detector test (or from using or accepting the results of same), some employers may use polygraph tests in limited circumstances (i.e., security guard firms, manufacturers of controlled substances, or employers qualifying for the “ongoing investigations” exemption). In conducting and using such polygraph tests, these employers should observe the following guidelines: Prior to the Test: • Provide the examinee with advance notice of the date, time and location of the test and inform him or her of the right to obtain and consult with counsel or an employee representative. • Provide the examinee with notice explaining the physical operation of the polygraph machine and the instruments involved with the testing. • Inform the examinee that: 1. he or she need not submit to the test as a condition of continued employment; and 2. any statement made during the exam can be used as evidence to support disciplinary action. • Inform the examinee of the legal rights and remedies permitted by Employee Polygraph Protection Act if the provisions are violated. • Inform the examinee of any limitations imposed on the employer by federal law. During the Test: • Ensure that the testing examiner does not ask questions that were not presented in writing prior to the test for review by the examinee. • Ensure that no one other than a qualified examiner administers the test.

272

See Pettus v. Cole, 57 Cal. Rptr. 2d 46 (Cal. Ct. App. 1996).

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• Require that the test lasts at least 90 minutes. After the Test: • Interview the employee on the basis of the test results before taking any adverse employment action. • Provide the examinee with a copy of the questions and charted responses from the test. Using the Test Results as a Basis for Disciplinary Action: • Do not use the test results as the sole basis for taking an adverse employment action; instead, have additional supporting evidence on hand to support that action. • Do not disclose any information from the test to third parties.

§ 3.2 HONESTY TESTS: EMPLOYER GUIDELINES In the absence of a statute or definitive judicial ruling, it is impossible to accurately predict whether a written honesty examination would survive a privacy challenge, even though there are significant differences between polygraphs and honesty exams that make the latter far less intrusive. If a written honesty examination is used, the following precautions should be taken: • Ensure that the test has been validated in accordance with the EEOC’s Uniform Guidelines on Employee Selection. Insist upon a written guarantee or certification with supporting data, if available. • Be especially careful about administering the exam to current employees as a condition of continued employment. It is generally more acceptable to conduct examinations and make inquiries of applicants during the preemployment screening process than it is to test current employees. • Prior to administering the examination, use a written consent form in which the employee expressly consents both to the administration of the examination and to the disclosure of the results to the company. • Limit disclosure of the results to the person making the hiring decision. Unnecessary access to or discussion of the detailed information commonly contained in the report creates a danger of defamation or invasion of privacy claims. • Carefully consider whether a full report and analysis of the results of the examination is even necessary. If the company is interested primarily in the bottom line result—whether or not the employee’s attitude towards honesty is acceptable—a complete analysis of the reasons for an applicant’s score could be unnecessary and could also increase the risk that defamatory statements will be published in an unprivileged manner, or that the applicant or employee will make such a claim.

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§ 3.3 PSYCHOLOGICAL TESTING: EMPLOYER GUIDELINES • Before implementing psychological tests, always consult with legal counsel. • Ensure that the test to be implemented is helpful to the particular position sought by the employee or applicant. • Carefully review the content of any psychological test to be implemented.

§ 3.4 PHYSICAL EXAMINATIONS: EMPLOYER GUIDELINES • Regarding testing of job applicants, conduct physical examinations only after extending a bona fide job offer conditioned only upon successful completion of the examination. Ensure that the examination is required of all entering employees in the same job category. • If necessary, obtain from the subject of the examination an authorization, which complies with the HIPAA Privacy Rule, permitting the examiner to disclose the examination results as discussed in § 2.4(g) above. • Do not rely upon results of a physical examination to take an adverse employment action unless the organization can identify a reason that is job related and justified by business necessity. • Regarding testing of current employees, limit physical examinations or related inquiries to those employees where a business necessity basis for the testing applies. • Ensure confidentiality of testing results by implementing a specific filing system for test results and limiting access to related files. • Ensure compliance with GINA for example: 

Do not request family medical history from applicants and employees, except in limited circumstances in connection with a wellness program.

If an employer requires post-offer, preemployment medical examinations, the medical examinations may not include any inquiries about family medical history. Although these types of questions are common at routine doctor visits, physicians performing preemployment medical exams should be advised to avoid these questions, and employers should take steps to review and revise any potentially outdated questionnaires that may still contain questions relating to family medical history.

Any requests that an employee have a medical professional provide documentation (e.g., in connection with a fitness-for-duty exam) must include a statement that family medical history and other genetic information should not be provided.

• Be aware of state law that may further restrict an employer’s ability to conduct physical examinations of employees and job applicants. For additional employer guidelines related to HIPAA and ADA compliance in relation to obtaining results of work-related physical examinations and drug and alcohol tests, see LITTLER ON DATA PROTECTION & RELEASE OF PERSONAL INFORMATION.

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§ 3.5 GENETIC SCREENING: EMPLOYER GUIDELINES • Recognize the risks inherent in conducting genetic screening in light of state and federal legal restrictions. • Formulate a company policy regarding genetic screening, its purpose, applicable guidelines, employee rights, and confidentiality of personnel records containing genetic information. For example: 

Post an EEO nondiscrimination poster prohibiting discrimination based on genetic information.

Include nondiscrimination on the basis of genetic information in equal employment opportunity statements.

Regularly review and evaluate processes regarding the administration of health benefits to make sure they are compliant.

Provide confidentiality protections for any personnel records that contain medical information about an employee or employee’s family member.

Verify that there are policies and procedures in place to prevent the inadvertent disclosure of genetic information.

• Prior to conducting genetic testing or accessing related information, obtain from the test subject an authorization that complies with the HIPAA Privacy Rule, permitting the examiner to disclose the test results. • As a basis for testing (where acceptable), determine a specific, business-related need for genetic screening, such as the prevention of occupational diseases. • Be aware that the GINA does the following: 1. prohibits employers from discriminating against an employee based upon genetic information; 2. places broad restrictions on an employer’s deliberate acquisition of genetic information; 3. mandates confidentiality for genetic information that employers lawfully collect; 4. strictly limits disclosure of such information; and 5. prohibits retaliation against employees who complain about genetic discrimination. • Be aware that genetic testing may potentially infringe on rights protected under the ADA and other state disability statutes.

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§ 3.6 DRUG TESTING: EMPLOYER GUIDELINES Drug and alcohol abuse in the workplace remains a pervasive and complex problem requiring a comprehensive solution. Such a solution can, upon advice of counsel, include: 1. a policy prohibiting possession, use, distribution, sale or purchase of illegal drugs at any time, and the use or abuse of alcohol while at work, as well as offers to sell or distribute drugs; 2. a general policy giving management full discretion to determine whether an employee is fit to work; 3. training for managers and human resources professionals on the signs and symptoms of substance abuse, and an overview of legal rights of both employer and employees; 4. a policy allowing for testing in specific and limited situations, which complies with relevant state laws; 5. notice of that policy should be provided to employees, with an opportunity for employees to acknowledge receipt of the same and provide consent. Specifically, employers should obtain consent from the employees to conduct the test and to use and disclose the results as permitted by applicable law. If the testing entity is a covered entity under HIPAA, confirm that the consent form complies with the HIPAA Privacy Rule, permitting the examiner to disclose the test results, as discussed in § 2.4(g) above; 6. a policy providing for the discharge of an employee with confirmed positive drug/alcohol tests under a legally compliant workplace testing policy; 7. an employee assistance program providing treatment, counseling or referrals; 8. an employee education program regarding the dangers of drugs and alcohol in the work environment; and 9. a properly conducted surveillance and/or undercover detection program. In addition to formulating and implementing a substance abuse policy, it is also recommended that employers: • Use a nonintrusive method of testing where lawful, such as oral fluids or saliva or, in the event of urinalysis, the test is to be conducted in a manner that respects the privacy of the person being tested. DOT regulations require direct observation of urine collections of regulated employees in some circumstances (e.g., DOT return-to-duty and follow-up testing). Some states prohibit observed urine collections and even if not prohibited should generally be avoided. • Never force an employee or a job applicant to take a drug test. In general, treat a refusal to test as insubordination. • Where state law dictates a certain a process for conducting the test or an appeal procedure (for a positive test), ensure compliance with that process or procedure. • Many states, several cities and Puerto Rico have mandatory workplace drug and alcohol testing laws or court decisions affecting workplace drug and alcohol testing. Employers in those states

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must review those laws (and related implementing regulations) and court decisions for full legal compliance in a non-DOT, non-regulated setting. For additional employer guidelines related to HIPAA and ADA compliance in relation to obtaining results of work-related drug and alcohol tests, see LITTLER ON DATA PROTECTION & RELEASE OF PERSONAL INFORMATION.

©2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

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Littler on Employment Testing