Reasonable Suspicion of Drug Use, Quirky Question # 20

Quirky Question # 20:

We recently saw in the newspaper that one of our employees had been arrested for DUI and marijuana possession.  Based on the newspaper article, we insisted on drug testing the employee under the “reasonable suspicion” section of our drug testing policy.  The employee adulterated his urine sample by adding soap to it.  The testing facility advised us that they consider an adulterated sample to be the same as a positive test.

We have asked the employee to go through a treatment program, as required by a “first positive” result of a drug test under our policy.  The employee is balking.  Are we being unreasonable?  Can’t a newspaper article provide us reasonable suspicion to warrant a drug test?

Dorsey’s Analysis:

I am not aware of specific judicial decisions that clearly would support your company’s decision. In my view, however, with just one caveat, I believe your company has acted reasonably and should be able to persuade a court of that fact in the event your employee challenges your company’s actions.

As you described in your question, based on the newspaper article, you learned that your employee was “arrested for DUI and marijuana possession.” Ideally, when your company was made aware of this situation, it should have conducted an independent investigation. Your investigation could have consisted of obtaining the police arrest record or other public information regarding this incident through the City or County Attorney’s Office.

Alternatively, your investigation could have simply involved interviewing the employee to ascertain the relevant factual information directly from him. You could have confirmed the accuracy of the newspaper report, ensuring that your employee actually was arrested for DUI and that drugs were found in the vehicle. If the employee admitted the accuracy of the report and offered no explanation for the situation, you would have received independent confirmation in support of your suspicion.

It is possible, though unlikely, that your employee could have presented additional information to you that both cast doubt on the information in the article and assuaged your concerns. For example, he might have informed you that he is a diabetic and the erratic driving leading to his “DUI” arrest was caused by low blood sugar. (These facts would have been easily verifiable.) Similarly, he might have informed you that although there were drugs in the vehicle, they belonged to his passenger, who admitted they were his. (Again, these facts would have been verifiable.) If these facts had been uncovered and confirmed, you may not have elected to require the employee to engage in the random drug test. In short, it usually is advisable to conduct a prompt investigation of your own into the issues that caused your firm concerns, or aroused your suspicions, whatever the underlying issues might have been.

Let’s assume for this discussion, however, that no investigation was conducted. Even without an investigation, your employee’s destruction of the urine sample is corroborative of the fact that there was prior wrongful conduct. Indeed, your employee’s behavior following the company’s request that he take the drug test (which the testing company advised you is equivalent to a positive test) provides ample justification for treating his conduct as a “first positive” under your policy.

You also have asked whether your firm is justified in relying on a newspaper article. Although as noted above, I would recommend that your firm conduct its own investigation regardless of the source of your concerns (e.g., a newspaper, an employee’s report, an anonymous tip on your company’s hotline, your own observations, etc.), a newspaper report may provide you a legitimate basis for having “reasonable suspicion” of wrongful conduct, with resulting disciplinary action. This issue is particularly timely here in the Twin Cities, where a group of students at a local high school recently included pictures of their underage drinking escapades on their Facebook pages. The school disciplined the students based on the pictures they had displayed on Facebook. While the school’s actions have precipitated some protests from the students themselves, their parents, and a few of their fellow students, the school’s disciplinary decision seems to have been well grounded.

Another way of evaluating the appropriateness of your company’s conduct is to consider how an alternative hypothetical scenario might have played out. For example, if your company took no action in response to the newspaper report and did not require a drug test, presumably the employee would have continued working without interruption. Imagine that the employee caused an accident at your facility due to impairment relating to alcohol or drug use. If another employee or a member of the public were injured in this accident and sued the company for negligence, it would be difficult to explain the company’s complete inaction after seeing the newspaper story.

In short, as with many aspects of employment law, once the company is on notice of problematic behavior (e.g., drug use, sexual harassment, potential workplace violence, etc.), it needs to act. The fact that the source of this knowledge might be a newspaper – here, the report of an arrest – does not alter this equation. (Keep in mind, however, that regardless of the source, all allegations are not true. That observation is easily illustrated by reference to just two words, even in the context of an “arrest” – “Duke Lacrosse.” Hence the need for your own, objective investigation.)