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Total Articles: 28

Federal Court Dismisses Employer’s Claims For Indemnification and Contribution Against Drug Testing Vendor After False Positive Drug Test Result

A federal court in South Dakota granted a motion to strike and a motion to dismiss filed by the Equal Employment Opportunity Commission (“EEOC”) and the laboratory that conducted drug tests for the Defendant employer, holding that the employer was not entitled to seek indemnification or contribution from the laboratory for damages based on a false positive drug test result. EEOC v. M.G. Oil Company, No. 4:16-4131-KES, (D.S.D. August 10, 2017).

America’s Opioid Epidemic and the Workplace: Should Employers Change Their Approach to Drug Testing?

As many as 50,000 Americans may have died in 2016 as the result of an opioid-related overdose. This number continues to increase with no end in sight, as the use of prescription opioids to relieve pain has reached staggering levels. In 2012, more than 259 million prescriptions were written for opioids, with the current number undoubtedly being much higher. Drug overdose is now the leading cause of death for Americans under 50.

Employer Drug Testing in the Age of Legalization

With medical marijuana now legal in 29 states and recreational marijuana use permitted in eight states plus the District of Columbia, some employers are understandably concerned about this trend, especially with a recent Quest Diagnostics report showing drug use at its highest level in 12 years. But these legalization laws don’t mean your company drug testing program necessarily needs to go up in smoke.

First-of-Its-Kind Medical Marijuana Ruling Finds Employer Acted Illegally

A Rhode Island state court has found a company liable for refusing to hire a medical marijuana cardholder for a paid internship because she could not pass a preemployment drug test. The court held in Callaghan v. Darlington Fabrics Corp. that the employer acted illegally even though the applicant admitted that she would test positive on the company's mandatory drug test.

Quest Diagnostics Annual Survey Shows Drug Test Positivity Rates Continue to Climb

According to the annual Quest Diagnostics Drug Testing Index published yesterday, illicit drug use among U.S. employees continues to rise, resulting in the highest drug test positivity rates in the last 12 years. This nationwide survey of more than 10 million workforce drug test results revealed:

Applicant Who Failed Pre-Employment Drug Test Could Not Show That Public Employer Violated Her Due Process Rights or Title VII

A federal district court recently dismissed a lawsuit in which a job applicant challenged a public employer’s decision to withdraw an offer of employment after the individual tested positive for cocaine on a pre-employment drug test.

Federal Appeals Court Upholds Dismissal of Public Employee For Failing Random Drug Test

The Unified Government of Wyandotte County/Kansas City, Kansas did not violate a public employee’s Fourth Amendment rights by requiring the employee to submit to a random drug test or by terminating his employment when he tested positive for cocaine, according to a recent decision by the U.S. Court of Appeals for the Tenth Circuit. Washington v. Unified Government of Wyandotte County, Kansas, 847 F.3d 1192 (10th Cir. 2017).

Congress Passes Resolution to Block Obama Administration Restrictions on Drug Testing Those Seeking Unemployment Benefits

On March 14, 2017, the U.S. Senate approved House Joint Resolution 42, which earlier passed in the U.S. House of Representatives and blocks the U.S. Department of Labor’s (DOL) regulation limiting states’ ability to drug test unemployment benefit applicants. Once the 2016 resolution is finalized, states will no longer be limited by the regulation’s narrow definition of which occupations regularly conduct drug testing. The president is expected to sign the resolution soon.

DOT To Add Synthetic Opioids To Its Drug Testing Panel

Today the U.S. Department of Transportation published a notice of proposed rulemaking in the Federal Register in which it proposes to amend its drug testing program regulation to add four synthetic opioids (hydrocodone, hydromorphone, oxymorphone and oxycodone) to its drug testing panel. DOT also proposes to add methylenedioxyamphetamine (MDA) as an initial test analyte, and remove methylenedioxyethylamphetamine, (MDEA) as a confirmatory test analyte.

eLABORate: EEOC Sues Employer Over Positive Drug Test for Prescription Opioid Painkiller

In recent years, the abuse of prescription opioid pain medication has become a widely reported national epidemic. The New England Journal of Medicine reports millions of Americans are addicted to prescription pain medications, and The Centers for Disease Control and Prevention finds that more people died from drug overdoses in 2014 than in any year on record with the majority of deaths from opioids. The CDCP reports that 78 Americans die every day from an opioid overdose. Prescription opioid abuse also has been linked to the national increase in heroin addiction. Commonly prescribed opioid painkillers include hydrocodone (Vicodin), oxycodone (OxyContin, Percocet), morphine (Kadian, Avinza) or medications containing codeine

Positive Drug Tests of US Workers at Highest Level in a Decade

The percentage of employees testing positive for illegal drug use has reached a 10-year high, according to an analysis by Quest Diagnostics of nearly 11 million workforce drug test results. According to this annual survey, positive drug tests for marijuana, amphetamines and heroin have increased every year for the past five years.

Consistent Enforcement of Drug Policies Key to Avoiding Disparate Treatment Claims

Following termination stemming from a positive drug test for marijuana, a Native American female, appearing pro se, filed a federal lawsuit against her former employer, Mohave County’s Public Works Department. She alleged discrimination based on race and/or ancestry, a violation of her rights under the Family and Medical Leave Act (FMLA), and a violation of due process rights. On July 19, 2016, Senior U.S. District Judge for the District of Arizona, James A. Teilborg, issued an order granting summary judgment for the defendant Mohave County on all claims. Yazzie v. County of Mohave, No. CV-14-08153 (July 19, 2016).

Eighth Circuit Rules Minnesota's Drug and Alcohol Testing in the Workplace Act Has Multi-State Reach

The U.S. Court of Appeals for the Eighth Circuit recently expanded the reach of the Minnesota Drug and Alcohol Testing in the Workplace Act1 (“DATWA” or “the Act”) by ruling that the Act can apply to the employees of Minnesota-based employers working in other states whenever there are “significant contacts” between the state and the parties or the facts giving rise to the claim. In Olson v. Push, Inc.,2 the Eighth Circuit ruled that Minnesota’s drug testing rules applied to a Minnesota applicant for a West Virginia job because the employer did business in Minnesota, hired a Minnesota resident, and permitted a pre-employment drug test to be conducted in Minnesota. Because Minnesota’s DATWA imposes some of the most significant restrictions on workplace drug and alcohol testing in the country, the Push case requires prudent Minnesota employers to consider whether the Act applies to individuals employed in out-of-state positions and to adjust their testing protocols.

Top 10 Reasons To Update Workplace Drug and Alcohol Policies in 2016

With the beginning of a new year, it is time to make resolutions and review old, outdated workplace policies. Employers who conduct drug and alcohol testing should consider updating their drug and alcohol policies in 2016, particularly if they have not done so in several years. Here are the top 10 reasons why:

FMCSA SLASHES RANDOM DRUG TESTING PERCENTAGE RATE FOR 2016

Motor carriers subject to Federal Motor Carrier Safety Administration drug and alcohol testing requirements in 2016 will have to conduct significantly fewer random drug tests for drivers of commercial motor vehicles (CMVs), including certain trucks and buses, and spend less money on that testing, the U.S. Department of Transportation agency said recently .

FMCSA Lowers Random Drug Testing Level to 25 Percent in 2016

On December 21, 2015, the Federal Motor Carrier Safety Administration (FMCSA) announced that it is reducing the minimal annual percentage rate for random drug testing for drivers subject to the Department of Transportation’s (DOT) drug testing rules from the current rate of 50 percent of the average number of driver positions to 25 percent. This reduction is effective in calendar year 2016. The decrease does not prevent motor carriers from testing at a higher rate than 25 percent in 2016. The minimum annual percentage rate for random alcohol testing will remain at 10 percent.

Legal Medical Marijuana Use No Defense for Failed Drug Test, Federal Court Finds

A federal district court in the state of Washington has ruled that employers do not have to accommodate the use of medical marijuana if they have a drug-free workplace, even if the marijuana is being used off-site to treat an employee's disability. The ruling is notable because Washington has legalized marijuana not only for medicinal use but for recreational use as well.

Hair Testing Guidelines Coming Within A Year For Commercial Motor Vehicle Drivers

President Obama signed the Fixing America’s Surface Transportation (FAST) Act on December 4, 2015, a law that funds improvements to the nation’s roads, bridges, transit systems, and rail transportation network for a period of five years.

Employee Termination Upheld Due To Failure To Comply with Employer’s Prescription Medication Policy

A federal court in Utah upheld the termination of an employee who did not disclose his use of prescription medication in accordance with his employer’s policy. Angel v. Lisbon Valley Mining Co., Case No. 2:14-CV-00733 (D. Utah Nov. 23, 2015).

Employee Failed to Show that Positive Drug Test Result For Barbiturates Was Discriminatory

A federal court in Georgia rejected an employee’s claim that his termination after a positive drug test result for barbiturates was discriminatory. Roman v. Leggett and Platt, Inc., Case No. 3:14-CV-20 (M.D. Ga. Nov. 3, 2015).

Do Your Employees Have the Right to a Union Rep During a Drug Test?

On August 27, 2015, a three-member panel of the National Labor Relations Board (NLRB) issued Manhattan Beer Distributors, LLC and Joe Garcia Diaz, (29-CA-115694) finding that an employer had unlawfully denied an employee his right to the physical presence of a union representative during a reasonable suspicion drug test. This case has implications for all employers conducting drug tests in a unionized setting.

Reasonable Suspicion Alcohol Test of Employee Was Justified After Bar Fight and Diagnosis of Alcoholic Pancreatitis

Reasonable suspicion alcohol testing of a safety-sensitive employee who was injured in a bar fight and who took medical leave for “acute alcoholic pancreatitis” was upheld by a federal court in Indiana, even though the testing did not take place until the employee returned to work after his medical leave ended. Foos v. Taghleef Industries, Inc., 2:13-CV-00438 (S.D. Ind. Sept. 22, 2015).

Federal Court Finds “Field Preemption” of Minnesota Drug Testing Statute

It has long been recognized that federal regulations mandating drug testing for certain employees in safety-sensitive industries preempt contrary provisions in Minnesota’s state drug testing law known as “DATWA” (Drug and Alcohol Testing in the Workplace Act). But some Minnesota practitioners have argued for years that employee protections in DATWA should not be preempted if they are not explicitly in conflict with federal law. A recent order from the District of Minnesota has likely put an end to this line of reasoning. MN Airlines, Inc., d/b/a Sun Country Airlines v. Levander, No 15-CV-2454 (PAM/BRT) (D. Minn. Aug. 28, 2015).

Minnesota Court of Appeals Provides Helpful Roadmap For Employers Who Conduct Drug Testing

The Minnesota Court of Appeals handed employers a rare win under the Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”), upholding dismissal of a wrongful discharge case after an employee who tested positive for drugs did not comply with the recommended treatment because he wanted to choose a different treatment program. Jones v. Green Bay Packaging, Inc., No. A15-0017 (Minn. Ct. App. Aug. 10, 2015).

Employee’s Positive Return-to-Duty Drug Test Result Warranted Termination Despite Employer’s Use of Low Cutoff Concentrations

A Texas oil refinery whose substance abuse policy said an employee “whose drug test is positive, regardless of the reasons for the test,” would be considered in violation of company policy and “will be terminated from employment” meant what it said, a labor arbitrator has concluded. The policy, along with an agreement requiring that an employee seeking assistance for a claimed drug problem abstain from drug use, justified the discharge of an employee who tested positive for marijuana on a return-to-duty drug test, even though the cutoff levels for positive results were low. Valero Services, Inc. and United Steelworkers Int’l LLC, 134 LA (Bloomberg/BNA) 1704 (FMCS Case No. 14/500024, May 4, 2015) (Scheiber, B., Arb.).

Drug Testing In Your Non-U.S. Operations

Many U.S.-based employers perform pre-employment, post-accident, or random drug testing. With some exceptions, they are generally permitted wide latitude in deciding when to conduct such tests. But the U.S. attitude toward drug testing does not necessarily translate to other countries, where there may be different attitudes toward employee privacy in particular. U.S.-based employers can run into trouble when attempting to impose those same testing requirements on a foreign division or subsidiary.

Cross-Border Employers Must Take Care Before Implementing Drug-and-Alcohol-Testing Policies at Non-U.S. Operations

Many U.S.-based employers perform pre-employment, post-accident, or random drug testing, and with some exceptions, are generally permitted wide latitude in deciding when to conduct such tests. The U.S. attitude toward drug testing does not necessarily translate to other countries, however, where there may be different attitudes toward employee privacy, in particular. U.S.-based employers can run into trouble when attempting to impose those same testing requirements on a foreign division or subsidiary.

Why Employee Drug Screening Can Help Your Business

Most firms find drug testing programs to be a worthwhile investment.
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