According to Keith Richards of the Rolling Stones, who is as well known for his drug use as he is for his song writing and guitar skills, “if you’re going to kick authority in the teeth, you may as well use two feet.” If you don’t want to be kicked in the teeth because of drug use by your employees or applicants, then you should consider your company’s drug testing program and policy prohibiting drug use, or the lack thereof, and how you can best protect your company going forward.

There have been several lawsuits recently regarding pre-employment drug testing as well as testing current employees for reasonable suspicion. The decisions have been mixed.

In Turner v. Richmond Public Schools, et al., No. 3:16-cv-256 (E.D.VA., March 28, 2017), the Plaintiff filed a lawsuit when a conditional offer of employment was withdrawn after she tested positive for cocaine on her pre-employment drug test.  She cited violation of due process under the Fourteenth Amendment and disparate treatment under Title VII.

The offer of employment was conditional, the Plaintiff had no reasonable expectation of entitlement to the job, so she failed to show a “property interest.” She also “failed to state a claim under the ‘stigma-plus’ standard, set forth by the U.S. Supreme Court in Paul v. Davis, 424 U.S. 693 (1976), necessary to establish a deprivation of liberty within the meaning of the Due Process Clause.”  Therefore, the District Court completely dismissed the lawsuit.

If you require your potential employees to submit to a pre-employment drug screen, do so after an offer of employment has been made, and make sure that the offer is conditional upon successfully passing the drug screen as well as any other pre-employment testing.

What about drug screening for your existing employees? Do you have a well-defined drug testing program for reasonable suspicion and/or random testing? If not, make sure to get the program and policies defined, and then make sure that they are administered consistently. Not doing so puts your company at risk as the Detroit Department of Water and Sewerage (DWSD) learned in Greer v. McCormick, 2:14-cv-13596 (E.D. Mich. April 10, 2017).

DWSD directed Ralph to go for a random drug screen based solely on an anonymous tip it received stating that Ralph had been seen rolling a marijuana cigarette. Mr. Greer refused to go for the drug screen, so he was suspended and then discharged from his position. The allegations were not substantiated, and while it was alleged that there were photographs of Ralph rolling the cigarettes, those photos were never produced. No one had spoken with Ralph or asked him any questions before deciding to send him for the drug screen.

In additional to the lack of evidence and investigation, the DWSD did not have a “uniformly-applied safety-sensitive drug testing program.” All of this enabled Ralph to establish a violation of his Fourth Amendment rights, and the court found in favor in its summary judgement.

As you can see, not having a well-defined drug testing program can be problematic for the company and the employees. Whether your program is existing, or you are implementing a new program, make sure that the information is clear and that your staff, especially those who will be enforcing the program, are thoroughly trained. Ensuring the program and policies are enforced consistently is as important as having a program in place. After all, no one wants to get kicked in the teeth!

Sources:  drugtestlawadvisor.com