LANDMINE #4: Steps to Avoid or Defuse: • Admission of a substance abuse problem may be an ADA-covered event and trigger reasonable accommodation obligations.
• Last chance agreement is disciplinary action • Balance workplace safety with accountability in your discussions with employees.
• Use a writen work continuation agreement if ADA triggered.
LANDMINE #5: Anonymous Tip is Not Reasonable Suspicion Te Facts: Ralph Greer, Jr. was employed as a construction inspector by the Detroit Department of Water and Sewage (“DWSD”), a public employer. In September 2013, Greer was assigned to a project involving the repair of a water main. During the course of this project, a television reporter contacted DWSD’s Director of Public Relations to advise, “an anonymous source allegedly told him that some undescribed individual driving a DWSD vehicle was smoking marijuana in that vehicle.” Te tipster alleged that photographic evidence existed, but refused to provide such evidence. Based on this tip, DWSD determined that the vehicle had been assigned to Greer on the day in question. Without any additional corroboration, Greer was instructed to submit to a urine drug test. Greer refused to undergo the test, following the advice of his union representative and was ultimately suspended and discharged. Greer grieved the discipline and was reinstated without lost wages and benefits. Te arbitrator specifically stated that the decision did not address whether the discharge violated Greer’s Fourth Amendment rights. Greer filed suit in the Eastern District of
Michigan, this time naming the individual DWSD employees who ordered Greer’s submission to the drug test and who suspended and discharged him. Greer
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alleged that the department did not possess reasonable suspicion that Greer had engaged in illegal drug use while on the job. As a result, the drug test lacked any basis. In response to a motion to dismiss brought by the defendants, the court concluded that the drug test was constitutionally impermissible. As a result, the defendants were not entitled to qualified immunity. At a minimum, DWSD was obligated to establish the reliability of the anonymous tip before conducting a search based on it. Because DWSD did not do so, the federal district judge in Michigan held that a tip regarding employee on-the-job drug use by an unidentified source, relayed second- hand by a news reporter, is insufficient to establish individualized reasonable suspicion (required under the Fourth Amendment) to require a public employee to submit to a drug test. Te case is Greer v. McCormick.
LANDMINE #5: Steps to Avoid or Defuse: • Recognize the constitutional protections and possibility of individual manager liability
• Establish the reliability of the source • Reasonable suspicion should not be individualized
• A last chance is the safer alternative in close situations Learning from other mistakes is always
a good idea since you do not have time to make all the mistakes yourself.
Tommy Eden is a partner with the nationwide Management Labor firm of Constangy, Brooks, Smith & Prophete, LLP who drafts drug testing polices nationwide and advises and defends TPAs, Private and Public Employers, Collector, MRO and Laboratories on a variety of drug testing issues. Contact him at teden@
constangy.com, 334-246-2901 or 205-222-8030 mobile. Blog at
www.alabamaatwork.com.
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The Judge held that “with respect to drug-testing of public employees… in the absence of any suspicion at all, such a personal and abusive use of the government's power to conduct drug testing so obviously violates Fourth Amendment rights that no case law stating this proposition was necessary.”
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