Reliable statements about off-the-job drug use may justify reasonable suspicion testing
Q: We received information recently that one of our employees admits to using drugs and to falsifying her random drug tests. Can we drug test her based on this information?
A: It depends on the information, its source and what your drug testing policy says. Consider a recent court case: An employee threw a party at her house for her coworkers. After the party, the spouse of a coworker reported to Human Resources that while at the party, the employee had asked her if she wanted to smoke marijuana and admitted that she smoked it daily and passed her workplace drug tests by providing false samples. The company’s drug testing policy provided for reasonable suspicion testing and defined reasonable suspicion as, “[t]he Company’s belief that a Covered Individual is using or has used drugs or alcohol in violation of the Company’s written policy based on specific objective and articulable facts and reasonable inferences drawn from those facts….” Citing this standard, the company ordered the employee to be drug tested. She refused and was terminated. When she later sued, she claimed that the workplace drug test she was ordered to undergo was invalid, because the employer didn’t have reasonable suspicion that she had been using drugs.
The court disagreed, finding that the statement from the coworker’s wife had “specific, articulable, and, arguably, objective statements” that she had personally witnessed the employee smoking marijuana and making statements about her use and tampering with her drug tests, all amounting to reasonable suspicion on the part of the employer as to the employee’s drug use (Ivie v. Exterran Energy Solutions, LP, D NM, July 2013).
Tips: The risk employers face for improperly selecting an employee for a drug test which results in discipline or termination, is that they could subject the company to allegations of discrimination or wrongful discharge, with the possibility of back pay or emotional distress damages. If your source isn’t entirely credible, you always have the option of observing the employee yourself and looking for objective indicators of reasonable suspicion to test. Contact your Vigilant staff representative for assistance if you’re unsure what steps to take.