The Dangers of "Post-Injury" Drug and Alcohol Testing

Jury Finds Testing Violated Employee's Privacy

In a recent West Virginia case, a jury found that Wal-Mart Stores violated the privacy rights of an employee when it sent him for a drug and alcohol test several days after he injured his back at work. [Rohrbaugh v Wal-Mart Stores, Inc., 2002 W Va LEXIS 166, No. 30441 (W Va Sup Ct, October 11, 2002).] Wal-Mart had a policy of having all injured workers undergo drug and alcohol testing. Rohrbaugh injured his back and several days later, Wal-Mart sent him to a physician for a physical examination and for drug and alcohol testing. The drug and alcohol tests were negative. Rohrbaugh filed a workers compensation claim, which was not contested by Wal-Mart.

Rohrbaugh subsequently was disciplined for attendance issues and, 7 weeks after taking the drug and alcohol tests, was terminated for excessive lateness and absences. Rohrbaugh filed suit against Wal-Mart, alleging that the drug and alcohol tests invaded his privacy, and that his termination constituted disability discrimination and workers compensation discrimination.

After trial, the jury returned a verdict for Rohrbaugh, although it found no disability discrimination or workers compensation discrimination. The jury did, however, conclude that Wal-Mart invaded Rohrbaugh's privacy by requiring the drug and alcohol tests without having reasonable suspicion to administer them, as case law interpreting the state constitution specifies. The jury further stated that Rohrbaugh did not show he was entitled to compensatory damages (i.e., money for lost earnings, medical costs, out-of-pocket expenses, and emotional distress), but that he was entitled to punitive damages. The trial court ruled that there could be no award of punitive damages where compensatory damages had not been awarded also.

On appeal, the Supreme Court of West Virginia reversed, holding that the trial court's ruling effectively vacated the jury's determination and granted judgment to Wal-Mart. The Supreme Court further held that, in the absence of provable compensatory damages, the jury should have awarded "nominal" compensatory damages to Rohrbaugh, thereby permitting the award of punitive damages to stand. The case was remanded to the trial court for a new trial on the issue of damages.

Rohrbaugh highlights the fact that "post-injury" testing—testing based on the fact that an employee experienced a work-related injury—should not be conducted in those states which protect the privacy rights of private sector employees in the context of drug testing. Those states include Alabama, California, Colorado, Connecticut, Maine, Massachusetts, Montana, Nebraska, New Jersey, Pennsylvania, and West Virginia, among others. Employers in those states who routinely conduct drug and alcohol testing after an employee is injured, or after an employee files a workers compensation claim, may be exposed to damage claims, and in some states, even if the employee suffered no actual compensatory damages as a result of undergoing the drug and/or alcohol test. Even in states in which employees generally do not have privacy rights in drug testing, "post-injury" drug testing generally is not recommended because it could lead to workers compensation retaliation claims and will likely have a negative effect on employee morale, even though the jury in Rohrbaugh rejected such a claim (as well as a disability discrimination claim). For example, there would seem to be no suspicion-based reason to drug test a clerical employee who develops carpal tunnel syndrome or other repetitive stress disorder by doing his job. Employers who wish to drug test their workforce should consider the following categories of drug and alcohol tests: preemployment, reasonable suspicion, post-accident, and random.

Ohio Court Rules Testing Constitutes an Unreasonable Search

The Ohio Supreme Court has struck down a portion of the state's workers compensation law permitting employers to conduct drug and alcohol testing for any worker injured on the job, ruling that the law violated the Fourth Amendment's protection against unreasonable searches, and a similar clause of the State constitution. [State ex rel. Ohio AFL-CIO v Ohio Bureau of Workers' Comp., No. 2001-0642, 2002 Ohio LEXIS 3063 (Ohio Sup Ct, December 18, 2002).]

Ohio's workers compensation law provides an exclusion from workers compensation benefits when an employee's injury was proximately caused by the employee being intoxicated or under the influence of a controlled substance. The law at issue (H.B. 122) went into effect in 2001 and provided that when an employee tests positive for drugs or alcohol following a work-related injury, a rebuttable presumption arises that the employee's intoxication or influence of controlled substances proximately caused the injury. The law further provided that when the employee refuses to submit to a drug or alcohol test following a work-related injury, a rebuttable presumption arises that the employee is intoxicated or under the influence of controlled substances, and that the intoxication or influence of controlled substances proximately caused the injury.

The court found it significant that under H.B. 122, an individual's workers compensation benefits could be denied merely because he or she refused to submit to a "post-injury" drug test. The court also observed that all Ohio workers would have to submit to such tests, if requested by their employers, regardless of whether the employer had any reason to believe that the injury was caused by the employee's intoxication or use of controlled substances.

The court held that the "suspicionless" testing pursuant to H.B. 122 constituted a "search" for Fourth Amendment purposes. The Fourth Amendment to the U.S. Constitution provides protection against "unreasonable searches and seizures." The Ohio state constitution contains a similar protection. Although the Fourth Amendment generally is implicated only when there is government action, where, as here, employers would test pursuant to statutory authorization, and the outcome of the test affects the employee's eligibility for workers compensation benefits, the court found that "state action" was satisfied.

The reasonableness of a particular search "is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." The Ohio court stated that there must be a balancing of the "special needs" of the government against individuals' expectations of privacy.

After a lengthy discussion of several U.S. Supreme Court decisions, the court noted that in cases where suspicionless drug testing was permitted, the targeted individuals either demonstrated a history of abuse, held a unique position, or had the potential for creating the risk of catastrophe if they were under the influence of mind-altering substances. H.B. 122, by contrast, potentially applied to all workers in the state of Ohio, regardless of the circumstances leading to their injuries. Finding the law unconstitutional, the court stated that:

Under H.B. 122, all kinds of workers who suffer their injuries in a myriad of ways must face the prospect of undergoing drug and alcohol tests. A secretary suffering from carpal tunnel syndrome, a passenger in a company-owned vehicle who is blindsided by a drunk driver, a painter who happens to be near a boiler in a manufacturing plant when it explodes, a chemistry teacher burned while putting out a fire started by a student—all would be subject to an employer-requested drug test upon their inquiry. Their failure to agree would result in a rebuttable presumption that drug or alcohol use proximately caused their injury.... [T]he fact remains that they are subject to a government-imposed sanction for failure to submit to the chemical testing. Ordinary people working ordinary jobs do not have the expectation that they are subject to searches without reason.

The court held that the individual expectation of privacy of Ohio's workers outweighs any "special needs" asserted by the state, and that H.B. 122 therefore violated the protections against unreasonable searches set forth in the Fourth Amendment of the U.S. Constitution and the Ohio constitution's analogous provision.

Conclusion

Many states have provisions in their workers compensation laws similar to Ohio's. It may be tempting to employers to conduct drug tests routinely following a workplace injury that is likely to result in a workers compensation claim. This case highlights, however, that employers should be wary of conducting automatic "post-injury" testing, i.e., testing based on the mere fact that an employee experienced a work-related injury, without individualized cause. Such testing may lead to a variety of legal challenges, including constitutional challenges (if a state law is involved as it was in Ohio), workers compensation retaliation claims, and disability discrimination claims.