Minnesota or Oklahoma, or as “simple” as California’s statute that, aside from some training and procedural requirements, limits random testing to safety-sensitive and security sensitive jobs.
Voluntary States— Financial Opportunities
Voluntary states provide financial opportunities to employers—provided you follow the rules. Tere are two types of “voluntary” states, both related to workers’ compensation: states that provide a Rebutable Presumption of Intoxication Defense and states that offer a Workers’ Compensation Premium Discount, provided you follow the rules. Te “discount states” may be atractive to
you depending on whether the benefit of compliance is worth the effort. Some state rules are very complicated. But if you are in a “rebutable presumption state” you must seriously consider complying with the rules. Te financial reward will be worth the effort. Here are the voluntary states: 18 states provide workers’ comp
rebutable presumption of intoxication. AL
KS
OK NC IL
OH AR
CO MO TN TX NV
GA VA
MS FL
ID WY
AR TN KY
premium discount for DFWP. AL SC
LA FL
ND UT 13 states provide a workers’ comp
OH AZ GA
VA Four states (MN, NM, NY, and WI)
provide various reductions/credits to employers with Drug-Free Workplace Programs. Examples—Violating Mandatory
State Rules: Cost of Non-compliance: Connecticut: (Mandatory State)
In Tomick v. United Parcel Service. Inc. et al., 2010 Conn. Super LEXIS 2389,3
an
employee injured his back and eleven months later reinjured it while delivering a package. Te initial injury occurred in
42 datia focus
January 2003 and the re-injury was in November 2004. He received medical atention following the November 2004 injury and was released to full duty. Te employee continued to suffer severe pain. He got into several confrontations, which included yelling and swearing by both men, with Kevin Trudelle, the business manager at the facility where the employee worked.4 Trudelle decided that the employee must
get a fitness for duty examination and a drug test. Te employee refused. Te employee, however, did go for additional treatment and the treating physician reported to the company that a drug test was not needed. Te employee was released back to work but when he returned to work he was fired. Aſter a six-day trial, a jury ruled in
favor of the employee and awarded him $950,000. Tis sum included awards for violating Connecticut’s drug testing law, negligent infliction of emotional distress, disability discrimination and punitive damages. Additionally, back pay, $233,720 in atorney’s fees, and $3,729.54 in costs were also awarded to the employee. Significantly, the supervisor was found
personally liable for $50,000! Te case and its numerous appeals lasted
until December 30, 2016. In the end, the punitive award of $500,000 was reversed but the jury determination that the state mandatory drug testing law was violated was affirmed against both the Company and the Supervisor. Te jury and the Courts made it clear
that, in Connecticut, there must be reasonable suspicion before a drug test can be required. In this case no evidence of reasonable suspicion was presented and the jury concluded that the supervisor’s multiple threats to fire the employee if he didn’t take a drug test, “was a scheme concocted to provide just cause to terminate his employment.” (135 Conn. App. 589). In another Connecticut case . . . InDoyon v. Home Depot U.S.A., Inc., No. 2:92-CV-980 (JAC), 850
F.Supp.
125 (1994), the Company’s nationwide “substance abuse policy” required mandatory drug testing of any employee involved in a “serious work-related accident” including those that cause property damage in excess of $200. If a test was positive for any employee with less than two years of continued service, the employee would be fired. Plaintiff worked at a store in
Southington, Connecticut for less than two years. While operating a forkliſt, he turned a corner, the load shiſted, and a few bags of mulch fell onto a customer’s car causing more than $200 in damage. Doyon’s drug test was positive for
marijuana and he was fired. He sued arguing the policy violated Section 31-51x which allows testing only when there is reasonable suspicion that the employee is under the influence of drugs. Home Depot argued that an accident is itself suspicious, citing government statistics of the number of accidents that involve drug use. Te Court agreed with Mr. Doyon.
Citing legislative history, the Court noted that Section 31-51x is based on the Fourth Amendment to the United States Constitution concept of individualized suspicion. Te Court held that an accident by itself does not suffice—individualized suspicion of drug use is required.
A Summary of a few other State Mandatory Law Non-Compliance Cases (cited cases are only examples of the many cases in each state):
California • 2015—$31,001 paid by a California employer for violating mandatory state law. Employer’s problems included that: (1) there was no notice of the random, unannounced drug tests; (2) LRLO had no individualized suspicion of drug use by Aro and O’Toole; (3) when they objected to the testing, they were told that they would be suspended; (4) they were required to stand in line and sign
spring 2017
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