For the past 20 years the perception has been when conducting private workplace drug and alcohol testing that the best thing to do was to follow federal DOT rules. But, due to the many changes in state law “mirroring” DOT rules in your non-regulated drug testing program can get you into trouble. You must follow the rules that apply. A recent court decision in Minnesota makes this abundantly clear.
On November 5, 2008 a federal district court in Minnesota found in favor of an employee who, despite having his first positive drug test and contrary to state law, was fired. The Court appeared so upset with those who fired him that the court took the rare step of allowing the fired employee to amend his complaint to ask for punitive damages. The Court said:
Although [the manager] was aware that [the employee] was off work because he was in drug treatment, she did not consider [the MN state law] in deciding to fire him. Indeed, [the manager] was unaware that [a state law] existed. Notwithstanding the fact that she was responsible for ING’s employees in Minnesota, [the manager] ignored the section of ING’s employee manual discussing Minnesota’s [law] because she personally was a Delaware employee. Further, . . . superiors in the IT department did not consider whether [state law] limited ING’s ability to fire [the employee]. [The] immediate supervisor, knew nothing about [the state law] and had only a vague understanding of ING’s corporate drug-testing policy. * *
In short, there is no evidence in the record that any of those who were actually or potentially involved in deciding to fire [the employee] gave a moment’s thought to [state law], despite the fact that ING’s employee manual contains a section on [state law]. FN1
Today, with every drug test situation (who to test, split or no split, medical review or no medical review, terminate or not, etc.) we must ask: “What Rules Apply?” Notes:FN1-WEHLAGE v. ING BANK, FSB, d/b/a/ ING DIRECT, Case No. 07-CV-1852 (PJS/RLE) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA 2008 U.S. Dist. LEXIS 90249 November 5, 2008.
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.
Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel or other professionals before implementing any cost containment programs.
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