Children’s Hospital Case:
A Fresno County jury recently awarded $1,035,050 to a former employee of Children’s Hospital who was fired after failing a post-accident drug test. The Plaintiff was a Children’s Hospital employee of 18 ½ years who worked as a security guard. He was awarded almost $400,000 in economic loss and $650,000 for emotional distress.
Immediately after an on-the-job accident, Plaintiff was treated by medical personnel and given a painkiller. The next day, Plaintiff was told he must take a drug test. The test was positive for hydrocodone.
Children’s Hospital had a reasonable suspicion drug testing policy that applied to both accident and non-accident situations. There were no reports that Plaintiff was intoxicated or impaired when he was treated immediately following the accident. Under the circumstances, the drug test violated the employee’s right to privacy protected by the California Constitution and formed the basis for his wrongful termination claim.
Employee privacy is a big concern in California and employers must be careful to protect their employees’ rights. So when can an employer require a drug test?
California law generally permits drug testing in the following situations:
Pre-Employment. Pre-employment testing is generally permissible. Testing can only be required after a job offer has been extended and before the employment begins. Testing must be required for all applicants in a particular job category.
Reasonable Suspicion. Reasonable suspicion of intoxication based on specific objective facts will permit testing. Involvement in an accident may contribute to an employer’s reasonable suspicion, but is not definitive. Supervisors should be aware of common signs and symptoms of intoxication and substance abuse.
Post-Accident. Testing after an on-the-job accident is generally permissible if the accident is of the type where intoxication may be a factor in this or future accidents. Serious accidents involving personal injury or property damage likely qualify. Minor accidents may justify testing if the employee is in a safety-sensitive position (i.e., operating heavy machinery) or there are other indicators of intoxication that raise a reasonable suspicion. Testing should occur immediately following an accident.
Random Testing. Random testing is only permitted for employees in safety-sensitive positions.
The Children’s Hospital case highlights two important points about drug tests. First, the test did not adequately protect the employee’s privacy because it was not conducted immediately following the accident—he was told to take a drug test the following day. Second, mistakes can be costly for employers. Here, it was upwards of $1 million!
Employee drug testing does present significant hurdles for employers. However, having a policy for a drug-free workplace is still beneficial and drug testing can play an important role. It is important to limit any drug testing policy to conform to employee privacy protection requirements. Make sure any drug testing policy is clearly written and implemented in a fair and consistent manner for all employees. Supervisors charged with enforcing drug testing policies should be trained to identify signs and behavior that indicate employee intoxication and substance abuse.
If you have any questions about drug testing or employee privacy, please contact Sutton Hague Law Corporation or qualified legal counsel.
Case: Nou v. Children’s Hospital of Central California, Oct. 16, 2014, Docket No.: 12-CECG-02169.