Beware The EPL Perils Of Drug Testing

The employer called the hotline seeking counseling as to what to do next. The companys goal was to terminate each employee as soon as possible.

Hotline Counseling: Given the information that the company received regarding the possibility of the managers using and selling drugs in the workplace, the employer arguably had a sufficient basis to request the employees to undergo the drug tests.

Given that one flunked the test and the other passed, there are certainly grounds to terminate the employee that did not pass. However, the employers goal is to rid its workplace of employees who use drugs or engage in illegal activities.

While in the jurisdiction in question (Illinois), an at-will employee can be terminated for any reason with or without cause, the African-American employee might argue that by testing negative, there were insufficient grounds to terminate his employment.

This is because employees in litigation are often successful in proving employment discrimination by arguing that the claimed reason for the personnel decision is insufficient to justify the decision. In this case, a plaintiffs attorney would argue that as the employee passed the drug test, a firing is not justified.

The employer could redouble its investigation and attempt to uncover additional evidence to demonstrate that the employee who passed the drug test had nonetheless violated the employers personnel policy. However, that would be more difficult and open up the employer to charges that it was treating the two employees in a dissimilar fashion.

Although a termination in these circumstances could be defensible, it likely would pose risks for potential litigation without any other factual basis to support the dismissal of the employee who passed the drug test.

In this situation, the employer might have been able to avoid this problem if it conducted an independent investigation before ordering any drug tests. It could have interviewed other employees and residents to uncover evidence to substantiate the fact that both managers had violated the employers personnel policy.

If it had uncovered sufficient evidence upon which to base an assessment that the two employees had violated the personnel policy prohibiting the possession, use or sale of illegal drugs in the workplace, that would be a legitimate, non-discriminatory reason for the termination of both employees.

A broader personnel policy also could have avoided the necessity of administering a drug test. Some employers achieve this goal through the use of a drug-free workplace policy, the focal point of which is a written pledge by employees. Typically, this type of personnel policy requires each employee to sign an acknowledgment form by which they pledge to abide by the employers policy and agree to be fired if they bring drugs into the workplace, or if they are under the influence while on duty.

If a worker violates the pledge, employers have maximum discretion in disciplining and/or terminating them. Termination becomes much easier and less vulnerable to legal challenge when a worker violates the terms of the pledge.

In this instance, the employer would need only an honest belief that the employee had violated the terms of the pledge–that there are sufficient credible reports of the possession or sale of contraband–to support the decision to terminate the employee for violation of the personnel policy.

So long as the employer honestly believed in the legitimacy of the reason for the termination, the reason cannot be a pretext for discrimination, even if the employer is mistaken in its belief. This would allow an employer in these circumstances to terminate both employees.

Lisa Bee is director of EPL risk management for Lexington Insurance Company in Boston, while Gerald L. Maatman Jr. is an employment lawyer with Baker & McKenzie in Chicago.

Reproduced from National Underwriter Property & Casualty/Risk & Benefits Management Edition, May 20, 2002. Copyright 2002 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.