Recent cases in Ohio and West Virginia have held that employers may not subject
employees to drug and/or alcohol tests after incurring work-related injuries
where there is no “reasonable suspicion” giving rise to the test. Such testing
may expose employers to damage claims, including claims for punitive damages.
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.