WHAT RULES APPLY?
Federal Judge Says You Better Know
"For years I have been preaching about the need to know and follow state law as they apply to drug testing. Now, a federal judge in Minnesota agrees." Attorney W. J. Judge
INGDirect will be subject to the unusual sanction of punitive damages for wrongfully firing a Minnesota employee who tested positive for illicit drug use. In 2002 the plaintiff was hired in the INGDirect IT department. He began using methamphetamines in 2003-4. He told his supervisor that he was going to seek treatment. Using vacation time and short-term disability he was off the job for about 8 weeks. Two months after returning to work he tested positive on a drug test required by INGDirect. He was offered treatment and accepted. While he was in treatment he was fired. His treatment, which began in November '05 continued to October ‘06. In March '06, while still in treatment stemming from his first positive drug test, he was terminated. He sued, claiming his termination violated state law. The Court agreed.
The Court explained: Under Minnesota law, most employment is at-will, and thus employees can be fired for any reason or no reason — with rare exceptions. See, e.g., Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 741 (Minn. 2000). One of those rare exceptions is found in subdivision 10 of § 181.953 of the Minnesota Statutes, which limits the right of employers to fire or otherwise discipline employees based on the results of a drug test. Minn. Stat. § 181.953 subd. 10. Specifically, subdivision 10(b) of § 181.953 provides: [A]n employer may not discharge an employee for whom a positive test result on a confirmatory test was the first such result for the employee on a drug or alcohol test requested by the employer unless the following conditions have been met: (1) the employer has first given the employee an opportunity to participate in, at the employee's own expense or pursuant to coverage under an employee benefit plan, either a drug or alcohol counseling or rehabilitation program, whichever is more appropriate, as determined by the employer after consultation with a certified chemical use counselor or a physician trained in the diagnosis and treatment of chemical dependency; and (2) the employee has either refused to participate in the counseling or rehabilitation program or has failed to successfully complete the program, as evidenced by withdrawal from the program before its completion or by a positive test result on a confirmatory test after completion of the program.
The Court granted plaintiff's motion for summary judgment saying: Because DATWA required ING to allow Wehlage to participate in a treatment program after his first positive drug test in November 2005, DATWA implicitly prohibited ING from firing Wehlage for absenteeism while he was participating in that program. The Court therefore rejects ING's contention that it justifiably fired Wehlage for absenteeism. Absenteeism that results from an employee's attendance at a treatment program in accordance with subdivision 10(b) is not an independent basis for termination apart from the positive drug-test result that led to the treatment.
Although the plaintiff had not asked the Court for punitive damages the Court, on its own, allowed him to amend his complaint to ask for them. Why? The Court appeared upset that INGDirect didn't consider the state rules that applied here. The Court said: Wehlage's evidence demonstrates that although ING's employee handbook included a drug-testing policy based on [state law], the employees involved in the decision to fire Wehlage gave no thought to that policy before firing him. Donat, the human-resources employee who asked Wehlage to submit to a drug test, could not recall whether he reviewed ING's DATWA-based policy when ING decided to fire Wehlage. Indeed, Donat seems to have had no idea whether DATWA limited ING's ability to fire an employee who was in a drug-treatment program.
In short, there is no evidence in the record that any of those who were actually or potentially involved in deciding to fire Wehlage gave a moment's thought to [state law], despite the fact that ING's employee manual contains a section on [state law]. Perhaps Rizzo discussed [state law] implications with respect to Wehlage with ING's in-house counsel, but ING asserted the attorney-client privilege as to such discussions, so there is no evidence regarding what Rizzo may or may not have asked, or what an attorney may or may not have told her. The Court therefore finds, based on the evidence in the record that Wehlage has made a prima facie showing that ING acted with "deliberate disregard" for his rights under [state law]. Wehlage is entitled to add a claim for punitive damages to his complaint. All multi-state employers would do well to recognize that there is a real need to know what rules apply to the drug and alcohol tests they require and to follow them. The case recently settled for an undisclosed amount.
Bill Judge is an attorney who, for the past 24 years, has concentrated his practice on research, consultation, and management training related to the legal issues of substance abuse in the workplace and in our nation's schools. Attorney Judge, JD, LLM can be reached at:708-771-9474 or bjudge@lawsinhand.com
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