At first glance, this case might seem hard to believe. An employer is ordered to pay big damages to a worker who was fired for testing positive for drug use following a workplace accident. Why? Because of poor documentation and alleged race discrimination, both of which could have been avoided. With this case and the recent California Supreme Court ruling on drug testing, it’s more important than ever to check whether your drug-screening practices need some fine-tuning.
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Employee Tested After Minor Accident
Robert Landon, who is black, was a baggage handler for Northwest Airlines at San Francisco International Airport. One day while he was loading baggage, an aircraft door handle got caught and snapped off. Landon’s supervisor made him submit to a drug and alcohol test, which revealed a small amount of marijuana in his system. Landon was fired despite his objection that he hadn’t used marijuana. He then sued.
Reason for Test Changed
Landon claimed that Northwest’s original explanation for requiring the test was simply that he had been involved in an accident. But Landon alleged that the company later said he appeared to be under the influence of drugs or alcohol at the time of the accident.
This was important because Northwest’s policy was to test baggage handlers only if they were obviously impaired. Therefore, Landon argued, the testing and termination was justified only if the airline had reason to believe he was impaired.
Landon claimed there was no such evidence and that his firing violated the company’s rules. Northwest insisted it had followed its policies and procedures and that an independent laboratory had inadvertently misstated the reason for Landon’s test.
Biased Use of Testing Alleged
As part of his suit against Northwest, Landon also charged he was singled out for drug testing because of his race. He said white employees working under the same supervisor were involved in more serious accidents but weren’t required to undergo testing. Northwest again responded that it had followed company policy in testing Landon and then terminating his employment.
However, the jury sided with Landon and ordered Northwest to pay a total of $380,000, which included $250,000 in punitive damages.2 Landon is now seeking reinstatement and attorneys’ fees, but the court has not yet ruled on those requests. Northwest plans to appeal.
3-Point Checklist
As the controversy over the permissible scope of drug testing rages on, it’s more critical than ever to review and update your policy and procedures to make sure they pass legal muster. And, to avoid discrimination claims, it’s also important to follow a few simple guidelines to ensure you’re being consistent:
- Follow your drug testing policy to the letter. Make sure your procedures spell out when testing will occur, when people will be terminated or allowed to return to work following positive test results, and the consequences of refusing to take a test. Then apply your policy evenly to all employees.
- Have testing decisions reviewed. To ensure decisions to drug test particular workers are sound and consistent, it’s best to have every decision reviewed-before the testing takes place-by someone in management who has been carefully trained about the law and your policy.
- Document your justification for testing. Before testing an employee, carefully note your reasons and de- scribe the circumstances in detail. For example, if testing is based on suspicion that the person was impaired by drugs or alcohol, specify the signs of intoxication you or others observed.
For guidelines on adopting and implementing drug testing programs, see CEA January and February 1996 and February 1997.