By: James B. Sherman, Esq. & Chad A. Staul, Esq.
We often field questions from employers who suspect an employee of using or being under the influence of drugs or alcohol at work. In many instances the employer wants to confirm its suspicions by sending the employee for drug or alcohol testing. Of course, we tell them that in Minnesota (and some other states) an employer may not lawfully test employees unless it already has a published, written policy that complies in all respects with the Drug and Alcohol Testing in the Workplace Act, or "DATWA." But sometimes the circumstances raise quite a different issue: Must an employer with an existing drug and alcohol testing policy always administer or rely on such a test before taking disciplinary action? A Minnesota federal court recently addressed this issue and ruled that the employer did not violate Minnesota's DATWA when it fired an employee suspected of being under the influence of marijuana before his test was completed.
It all started when two employees, Lewis and DJ, showed up to work and their supervisor smelled a strong odor of what he believed to be marijuana. When asked if they had been smoking pot, each said they had not and were willing to submit to a drug test. The two were accompanied to the testing lab by the supervisor and, upon arrival, were asked to submit a urine sample. When neither employee produced a sufficient sample for testing, a staff member at the facility claimed they heard at least one of them urinating "a lot" in the toilet instead of filling the sample cup. The two were escorted to the waiting room at the testing facility and were given three hours to submit another sample or be deemed to have refused to test.
While in the waiting room, both employees exhibited their great maturity by giggling and laughing. Between the two, Lewis was found to be especially disruptive. Ultimately Lewis decided to use some profanities toward his supervisor and the supervisor then decided it was time to fire Lewis, on the spot, without waiting to obtain a proper test result. D.J. did provide a sufficient sample; however, it came back positive for marijuana (he was subsequently terminated for a second positive test result after being given an opportunity to undergo treatment as is required in certain instances under DATWA). The ensuing lawsuit, brought by Lewis, alleged the employer violated Minnesota DATWA because the supervisor terminated him before he fully exercised his "right" to complete his test, provide a second sample, etc.
In ruling against Lewis and in favor of this employer, the court first addressed how under DATWA, an employer must have reasonable suspicion to submit an employee to testing. Not surprisingly (though illustrative to employers who may wonder what constitutes "reasonable suspicion" to test), the court easily found the smell of marijuana emanating from Lewis and D.J. provided a reasonable basis for the supervisor to suspect them of smoking pot at work and thus test them under the employer's policy. The second, more difficult issue the court addressed was Lewis' argument that he could not be terminated because he was never properly tested. The court, however, stated that DATWA is not an "anti-discrimination statute" and "does not create a legal duty for an employer to test or a legal right for employees to demand a test." Rather, it merely ties employment terminations to a "positive test result." In this instance there was no positive test result and Lewis was terminated for reasons other than a test result; i.e. his disruptive and insubordinate behavior at the testing lab.
This decision raises some interesting issues. If DATWA comes into play only to govern testing procedures and how employers must treat positive test results, are employers sometimes better off not to test at all? Employers familiar with Minnesota's DATWA know that in most instances an employee testing positive for the first time must be offered treatment before any disciplinary action may be taken. Could an employer faced with its own version of Lewis and D.J. (perhaps Lenny and Squiggy?) upon finding them reeking of dope, simply fire them without even sending them for testing? Perhaps - but one thing seems clear from this recent and important court decision: DATWA does not apply where an employer disciplines, terminates, etc. an employee for distinct reasons unrelated to possible drug or alcohol use or testing itself. This is so even where the reasons for discharge take place, as in this case, at the testing lab (perhaps where the employee's insubordinate behavior was at least in part the result of being high).
