Reasonable Cause Drug Testing: Why Employer Wound Up In Hot Water; Guidelines For Avoiding Trouble

Suppose an employee shows up for work with slurred speech or is acting strangely. If you have a policy giving you the right to request a drug test when you have good cause to believe the person is under the influence, you might demand that the employee submit to a urinalysis. But be careful-a new court decision has raised some obstacles that could set you up for an expensive lawsuit.

Employee Refuses To Take Drug Test

When Janet Kraslawsky was hired as an executive secretary with Upper Deck Company, a San Diego sports memorabilia firm, she was given an employee handbook. It included a statement that employees might be required to submit to drug testing if the company had reasonable cause to believe they were under the influence of intoxicants. It also warned that refusal to submit to such tests could result in termination. Kraslawsky signed a form agreeing to abide by the policies in the handbook.

A few months later, a manager allegedly found Kraslawsky slumped over her desk. When asked if she was OK, she mumbled something he couldn’t understand. He told another manager that he thought she had “female problems.” The other manager then spoke briefly with Kraslawsky and concluded that she might be on medication or alcohol because she wasn’t acting like herself. The supervisors felt a drug test might identify the problem, so they asked her to drive to a lab more than 10 miles away to be tested. Kraslawsky refused and was fired.

Employee Claims Privacy Rights Trampled

Kraslawsky sued Upper Deck. She claimed that her privacy rights had been violated because the company lacked reasonable cause to believe she was under the influence when it demanded the drug test.

In her lawsuit, she contested Upper Deck’s version of what happened. She also asserted that neither supervisor had received training in detecting substance abuse. Finally, Kraslawsky charged that Upper Deck might have demanded the test in retaliation for her recent opposition to a new overtime policy.

Must Have Reasonable Cause To Seek Test

Upper Deck tried to get the case thrown out before trial. The company argued that Kraslawsky couldn’t complain because she had consented to the drug-testing policy when she was hired.

But the Court of Appeal explained that Kraslawsky was simply challenging whether the company had reasonable cause to request the test, not the policy itself. She was given the go-ahead to try to prove her case to the jury.

What You Should Do

Here are several things you can do to avoid problems when asking an employee to submit to a drug test:

1. Get employee consent. Your employee handbook or policy manual should state that employees may be required to submit to drug and alcohol tests if you have reasonable cause to believe they are under the influence, and that refusal to submit to a test could lead to termination. Have employees sign an acknowledgment for the handbook promising to abide by the policies. Also consider obtaining a separate agreement consenting to the drug-testing policy if substance abuse is a particular concern in your organization.
2. Train managers on “reasonable cause.” One reason for Upper Deck’s troubles was that its managers weren’t trained in how to detect substance abuse. Any supervisor who might have responsibility for ordering an employee to take a drug test should receive such training. For free help, contact the National Clearinghouse on Alcohol and Drug Information at (800) 729-6686 for a copy of “Making Your Workplace Drug Free, a Kit for Employers.”
3. Document objective facts indicating intoxication. Always note the specific reasons you believe an employee is under the influence. For example, instead of writing a memo that the worker seemed “out of it,” state that they smelled strongly of alcohol or their speech was slurred. Also, having a witness confirm the supervisor’s observations will make it harder for the employee to win a dispute over what happened. In addition, document any performance problems that occur.
4. Offer to provide transportation. Asking an employee to drive alone to the testing facility could make it appear that you are irresponsible or didn’t really believe the person was under the influence when you demanded the test. And, you could be liable if the employee gets into an accident along the way.
5. Consider alternatives to termination. You probably won’t get sued for imposing a suspension, but your risks increase if the worker is fired. So if an employee refuses to be tested or you’re uncomfortable demanding a test even though you think they’re under the influence, consider suspending the person without pay for some period. Plus, issue a warning that they’ll face dismissal if the problem recurs without a satisfactory explanation. But be careful about docking the pay of exempt employees for less than one week.