In our most recent Quarterly Employment Law Thermometer, our Blawg visitors identified “Medical Issues” as by far the #1 most headache-inducing employment law issue.

To help lower your temperature, over the next several days we’ll be answering your medical-related questions.

Today’s topic: Drugs in the Workplace

Last week here on the Blawg, we provided answers to your questions about medical marijuana in the workplace. Here are some additional drug-related questions received from Blawg visitors.

Q: I swear that half our employees are zombies on drugs. We have no drug-testing program, so what’s required to prove that an employee is “under the influence?” Is changed behavior, slurred speech, staggering around, etc. enough?

A: Here are the keys to dealing with drug use in the workplace:

1. As with most employment law issues, rely on concrete, objective facts rather than subjective perceptions or jumping to conclusions.
2. If you don’t already have a drug-testing policy in place, adopt a reasonable one that has been vetted by an employment lawyer familiar with the laws in your state.
3. If you have a policy in place, you may want to update it and have it reviewed by an employment lawyer to ensure that it’s still valid under the law.
4. Consistently enforce the policy.
5. Test on “reasonable suspicion” or after a workplace accident.

Q: If a recovering alcoholic is using legal drugs (e.g., cough syrup) to get high in the workplace, how can an employer legally address that?

A: The ADA doesn’t protect current users of illegal drugs. Recovering addicts may be covered, but they don’t get a free pass to violate policies. Legal and prescribed drug use may be covered under the ADA unless it poses a clear “direct threat” to others’ safety. Your policy should prohibit employees from being under the influence of any substance (including over-the-counter medication) other than medicine legally prescribed by a licensed health care provider.

Tune in tomorrow for more answers to your medical questions. As always, please keep our official disclaimer in mind.

What does your employees’ hair say about their drug use?

A new study shows that drug tests that utilize hair samples identify ten times as many drug users as traditional urine tests.

Hair Better?

According to Quest Diagnostics, new data to be released Friday shows that hair tests can detect a pattern of cocaine and methamphetamine use dating back as far as three months. Urine tests typically only detect use in the past one to three days. As such, urine tests are acceptable for detecting if drugs were a factor in a workplace incident but may allow applicants to avoid detection by stopping use a few days before testing.

The new data shows that cocaine was detected in 3 of every 1,000 urine tests but in 32 of every 1,000 hair tests. Methamphetamine showed up in 1 out of 1,000 urine tests but 9 times in hair tests.

Drugs Dropping?

Both urine and hair tests show a significant drop in workplace drug use in recent years. For example, urine tests show a 57% decrease in cocaine use in the past five years. Hair tests show a 36% drop. In fact, Quest Diagnostics reports that no drugs of any kind have shown an increase in workplace use in recent years.

What’s the Cost?

Urine tests typically cost between $20-30. Hair tests usually cost about twice as much.

Several unions have filed suit to prevent enforcement of a Department of Transportation (DOT) rule that would require transportation employees who previously tested positive for a banned substance to be observed when giving urine samples.  The rule will take effect August 25, unless the court intervenes.  (BNSF Railway Co. v. DOT,  No. 08-1264 (D.C. Cir))

The unions contend that the rule violates the Fourth Amendment protection against unreasonable searches and that it was issued without the notice required by the Administrative Procedure Act.  The DOT maintains that the rule is necessary given the “wide variety of products for adulteration of urine” that are now available. 

The DOT’s drug rules apply to more than 12 million employees who work in “safety-sensitive” transportation jobs.

Stay tuned for more.

Proving that anyone can sue for anything (and that justice occasionally gets done), yesterday a federal court refused to overturn the license termination of a pilot who admitted smoking crack cocaine.

The Facts

According to court documents . . .

• Pilot Charles Gabbard admittedly smoked crack cocaine sometime between 5:00 p.m. and 7:00 p.m. on February 15, 2007.
• On February 16, Gabbard submitted to a random drug test. 
• On February 17, he piloted a chartered jet.
• On February 21, Gabbard’s test results came back, showing a cocaine metabolite level seven times higher than the regulatory limit.
• Cocaine takes 24-48 hours to clear the system, according to the drug test administrator.

In April 2007, the Federal Aviation Agency (FAA) terminated Gabbard’s pilot’s license based on the positive drug test and the agency’s conclusion that he had piloted the February 17 flight “while having a prohibited drug, cocaine in [his] system.”

After an evidentiary hearing, an Administrative Law Judge upheld the FAA’s decision.  The National Transportation Safety Board also affirmed the decision.

Despite all the above, Gabbard filed a lawsuit, claiming there was inadequate evidence for his termination.

The Court’s Decision

Not too surprisingly, the law doesn’t allow pilots to fly the friendly skies while on drugs.  What is surprising is that Gabbard was able to get his case all the way to the second highest federal court in the land.

Basically, Gabbard’s defense appeared to be:  “Hey, you can’t terminate me.  Sure, I smoked crack and massively failed a drug test but you can’t prove with 100% certainty that I was coked up while I was actually flying that big plane in the sky with lots of people on it.”

After examining all the evidence, the court concluded that a “reasonable mind” could determine that Gabbard flew the plane with coke in his system.  It pointed to the ALJ’s conclusion that Gabbard lacked credibility and that his admitted crack smoking may have taken place closer to takeoff.  Even without that, however, the uncontested evidence showed that Gabbard piloted the jet (at most) 42 to 44 hours after smoking crack — within the 24-48 hour window it takes for coke to clear the system.

Gabbard tried a few other creative arguments, including that (1) he inadvertently smoked a cigarette that — unbeknownst to him — was laced with crack, (2)  the coke may have gotten into his system due to plastic surgery or (3) perhaps he inhaled crack smoke that just happened to waft by his head at some point.

The court rejected each of those arguments, finding that regardless of how the coke got into his system, Gabbard immediately knew he was affected.  Rather than inform his employer about the “accidental” crack ingestion, he instead jumped behind the controls of the plane and took off.

Gabbard’s final argument was that his lawyer was so bad that the decision below should be thrown out.  The court rejected that argument as well, noting that there is no constitutional right to effective counsel in a civil case.

Click here to read the entire decision.

A NYC detective who was fired for failing a drug test has sued to get his job back based on a rather unique defense.

The detective, Anthony Chiofalo, says that he failed the test because his wife spiked his meatballs with marijuana.  He seeks reinstatement and back pay on the grounds that the drug test and firing were unreasonable and unconstitutional.

Chiofalo, a 22-year veteran of the force, was suspended in 2005 when a random drug test detected marijuana in his system.  He denied that he had smoked pot and demanded a hearing. 

During the investigation, Chiofalo’s wife said that she secretly put the equivalent of six marijuana “doobies” in a batch of meatballs in the hopes that a failed drug test would force her husband to retire.  Apparently, she was deeply concerned that his job was too dangerous and couldn’t stand to see him get hurt or possibly killed.  Both she and her husband passed lie detector tests, bolstering the credibility of their story.

The couple managed to convince an administrative law judge, who recommended that Chiofalo be reinstated.  However, Police Commissioner Raymond Kelly ignored that recommendation and fired Chiofalo.

Stay tuned to see what happens next.

Thanks for your participation! Here’s the question . . .

One employee notifies you that he is on acid and that he intends to cannibalize the entire HR staff at lunch. A second employee tells you that he has to leave work early today because he used to be addicted to heroin and is having flashbacks to a 1977 Jethro Tull concert. A third employee tells you that he is on methadone and that he “sometimes feels like setting fire to himself and everyone around him.”

Here are your responses . . .

a. The first employee is not protected by the ADA because it does not cover current users of illegal drugs (5%)

b. The second employee — as a recovering addict — may be covered under the ADA (6%)

c. If the third employee’s drug use is legal and prescribed, he may be covered by the ADA, buy may be terminated if he poses a “direct threat” (15%)

d. All of the above (61%)

e. None of the above (13%)

The correct answer is “all of the above.” Current users of illegal drugs are not protected by the ADA (neither are cannibals). Recovering addicts may be protected and thus may need to be accommodated (but playing Jethro Tull in the workplace clearly would pose an undue hardship that need not be tolerated). Prescribed drug use may be covered by the ADA but the employee could be terminated if the narrow “direct threat” exception can be established. This is an exceptionally high burden requiring analysis of (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur and (4) the imminence of the potential harm.