New England Biz Law Update
Drug use costs American businesses billions of dollars
annually in lost productivity and health care costs. In response to this
crisis, many employers, both public and private, are implementing workplace
drug testing programs.
While employers regulated by federal law operate under a
single standard to determine when, and under what conditions, employee drug
testing is permitted, private employers must comply with the law of their home
state. Private employers with multi-state workforces are faced with complying
with potentially inconsistent laws of several states, when implementing
employee drug testing policies.
As part of the federal government’s effort to address
workplace drug use, Congress enacted the Drug-Free Workplace Act of 1988, which
requires federal contractors and grantees of federal agencies to agree to
provide drug-free workplaces. The federal government also regulates employee
drug testing as it affects interstate commerce or national security through a
variety of federal agencies including the Department of Transportation, the
Nuclear Regulatory Commission or the Department of Defense.
The U.S. Supreme Court has held that federally regulated
drug testing and drug testing of state and federal public employees constitutes
a search and seizure under the Fourth Amendment and is therefore permitted only
where (1) there exists an “individualized suspicion” of drug use establishing
probable cause to believe an employee is abusing drugs (so-called “probable
cause” drug testing), or (2) there is a “special need” for random drug testing
because an employee’s job duties involve high risk, safety sensitive tasks. See Chandler v. Miller, 520 U.S.
305 (1997).
The Fourth Amendment, however, does not protect private
employees.
Moreover, the at-will employment doctrine gives employers
broad latitude regarding the treatment, discipline and termination of such
employees. In response to privacy concerns raised by drug testing of private,
at-will employees, several states have attempted to fill the gap by
establishing a patchwork of rules addressing (1) when probable cause exists for
employee drug testing, and (2) under what circumstances random testing is
permissible.
Connecticut, Maine, Rhode Island and Vermont all have
addressed these issues through legislation, while in Massachusetts and New
Hampshire the issues have been left to the courts. This article briefly surveys
the current – and in certain respects dissonant – approaches of New England states
to defining acceptable standards for probable cause and random drug testing of
private, at-will employees. In addition, this article identifies a few notable
aspects of some state regulatory schemes.
Connecticut
In Connecticut, probable cause drug testing is limited to
circumstances where an employee’s drug use is likely to impair his or her job
performance, and random drug testing is only permitted under narrow
circumstances.
The statute, C.G.S.A. § 31-51t-aa, defines probable cause as
“a reasonable suspicion that the employee is under the influence of drugs so
that it adversely affects or could adversely affect his or her job
performance.” Id., §31-51x(a). The statute provides that the state Labor
Commissioner “shall adopt regulations … to specify circumstances which shall be
presumed to give rise to … reasonable suspicion,” but recognizes that an
employer may cite other circumstances giving rise to such a reasonable
suspicion. Id.
One court recently held that an employer in Connecticut is
entitled to look at the totality of an employee’s behavior in determining
whether a reasonable suspicion of drug use exists, and need not show that each
one of the employee’s behaviors would itself be sufficient to create reasonable
suspicion. Imme v. Federal Express Corp., 193 F.Supp.2d 519 (D. Conn.
2002).
The statute permits random drug testing of employees only
(1) if the test is authorized under federal law, (2) if the employee performs a
“high risk or safety-sensitive occupation” as defined by the state Labor Commission,
or (3) as part of an employee assistance program sponsored by the employer in
which the employee voluntarily participates.
Id., §31-51x(b).
Maine
Maine’s drug testing statute narrowly defines both probable
cause and random drug testing. The statute, 26 M.R.S.A. §§681-685, defines
probable cause as “a reasonable ground for belief in the existence of facts
that induce a person to believe that an employee may be under the influence of
a substance of abuse…” Id., §682(6).
Although the statute does not tie probable cause to job
impairment, it precludes an employer from relying upon certain types of
evidence to make a probable cause assessment by providing that probable cause
may not be based exclusively on any of the following: (a) information received
from an anonymous informant; (b) information tending to indicate that an
employee may have possessed or used drugs off duty, unless the employer
actually observed such use or possession on or in the proximity of the
employer’s premises during or immediately before working hours; or (c) a single
work-related accident. Id.
The statute further provides that certain supervisory or
medical personnel may only make the cause determination and that the person
making the determination must state in writing the fact upon which the
determination is made and provide a copy of the statement to the employee. Id.,
§682(6). The statute permits random testing only when approved as part of a
collective bargaining agreement or where the employee’s work creates a threat
to health or safety. Id., §684(3).
Maine also imposes several additional restrictions on
employers by: (a) requiring an employer to develop a written policy containing
certain mandatory provisions before establishing a substance abuse testing
program; (b) requiring employers with more than 20 full-time employees to have
a functioning employee assistance program before establishing a testing
program; (c) requiring an employer provide a copy of the written policy to an
employee at least 30 days before it becomes applicable to the employee; (d)
prohibiting any waiver or consent form regarding drug testing to be signed by
an employee; and, perhaps most importantly (e) requiring an employer to provide
an employee who receives an initial confirmed positive test the opportunity to
participate for up to six months in a drug rehabilitation program before the
employer can take any action to discipline or terminate the employee. Id.,
§§683 and 685.
Massachusetts
Massachusetts has not enacted any statutory scheme to
address private workplace drug testing, therefore, Massachusetts employers
enjoy wider latitude (but less certainty) in the implementation of drug testing
policies. The only guidance to Massachusetts employers regarding the
implementation of a private workplace drug-testing program comes from the
courts.
The Massachusetts Supreme Judicial Court has twice addressed
drug testing in the private workplace. In Folmsbee v. Tech Tool Grinding
& Supply, Inc., 417 Mass. 388 (1994), the court held that an employer’s
implementation of a drug testing program for all employees with procedural
safeguards and after a 30-day notice period was reasonable where employees were
involved in manufacturing dangerous cutting tools, two employees had been
arrested on drug charges, and a manager had smelled marijuana smoke and found
marijuana cigarette butts on the premises.
In Webster v. Motorola, Inc., 418 Mass. 425 (1994),
the court held that the institution of a universal drug testing program in
which employees were selected by computer that had been programmed so that each
employee was tested at least once every three years, with similar procedural
safeguards as in Folmsbee, was valid as applied to a sales employee who
regularly drove a company car, but invalid as applied to a technical editor.
Based on these decisions, and prior Massachusetts case law,
it is likely that probable cause testing will require a showing of an
articulable suspicion of drug use, and that random drug testing will probably
be upheld as valid only when applied to employees engaged in activities that
affect public safety.
Moreover, any policy must be reasonable in relation to the
activities of the work force and have procedural safeguards in place. Beyond
that, the parameters of acceptable private workplace drug testing in
Massachusetts remain largely undrawn.
New Hampshire
Like Massachusetts, New Hampshire has not enacted
legislation regulating drug testing of private, at-will employees and New
Hampshire courts have yet to articulate standards for probable cause or random
drug testing, leaving employers in that state with more flexibility in
implementing workplace drug testing programs.
The Supreme Court of New Hampshire has implicitly recognized
the validity of random drug testing in certain instances by holding that an
employer may refuse to reinstate an employee to a safety-sensitive position
after the employee failed a random drug test despite a union’s claim that the
refusal to reinstate would constitute an unfair labor practice. Appeal of
Amalgamated Transit Union, Local 717, 144 N.H. 325 (1999).
Rhode Island
Rhode Island’s drug testing statute, RI ST §28.6.5, ties the
determination of probable cause directly to job impairment. It provides that
probable cause exists where “[t]he employer has reasonable grounds to believe
based on specific aspects of the employee’s job performance and specific
contemporaneous observations, capable of being articulated, concerning the
employee’s appearance, behavior or speech, that the employee’s use of
controlled substances is impairing his or her ability to perform his or her
job.”
The statute does not permit random testing, except to the
extent it is authorized or mandated by federal law. Id., §28-6.5-1(e).
Like Maine’s statute, Rhode Island’s statute (a) requires an employer to promulgate
a drug abuse prevention policy before initiating testing, and (b) requires an
employer to refer an employee who receives an initial confirmed positive test
to a substance abuse professional for assistance, although the employer may
required ongoing testing and may terminate an employee whose testing indicates
continued drug use during treatment. Id., §§28.6.5-1(a)(3) and (7).
Vermont
Vermont’s drug testing statute, 21 V.S.A. §§511-520, permits
an employer to require an employee to submit to a drug test when “[t]he
employer or an agent of the employer has probable cause to believe the employee
is using or is under the influence of a drug on the job.” Id.,
§513(c)(1). The statute does not otherwise define probable cause or how it may
be established. Similar to Maine, Vermont requires an employer to provide an
employee who tests positive the opportunity to participate in a rehabilitation
program before the employee may be terminated, although in Vermont the
rehabilitation program cannot last longer than thee months. Id.,
§513(c)(3). Random drug testing is prohibited by Vermont’s statute, except when
such testing is required by federal law or regulation. Id., §513(3)(b).
Conclusion
The regulation of probable cause drug testing of private,
at-will employees by New England states has created a patchwork quilt of
differing standards. What factors may be used to make a determination of
probable cause, whether a showing of job impairment is necessary, who may make
such a determination, and whether and how such a determination must be
documented and communicated to an employee, all vary from state to state.
The regulation of random drug testing is subject to
similarly disparate treatment. Although beyond the scope of this article, the
New England states differ on private, at-will employee drug testing in other
material respects, including their approaches to pre-employment testing, the
duty to create split samples for retesting, testing methodologies, laboratory
certifications, and the role of medical review officers.
In light of the private right of action conferred upon
employees under most of these statutory schemes and the existence of common law
claims in states where no statutory scheme exists, private employers –
particularly those with a multi-state workforce – need to take a careful
approach to the implementation of a workplace drug testing program. In the case
of private sector workplace drug testing, one size definitely does not fit all.
Richard M.
Gilbert is a partner in the litigation group of Adler, Pollock & Sheehan
practicing complex civil and business litigation in state and federal courts
throughout New England. Mr. Gilbert represents a broad range of clients,
including large and small manufacturers, insurers, franchisors and franchisees,
banks, partnerships and individuals.
