Workplace Privacy Counsel : San Francisco Employment Privacy Law Lawyer & Attorney : Littler Mendelson Law Firm : Employment Related Privacy Issues

On April 14, the Oregon Supreme Court ruled that Oregon’s disability discrimination law did not require an employer to accommodate an employee who admitted the use of medical marijuana and sought accommodation based upon it. The court rejected the argument of Oregon’s Bureau of Labor and Industries (BOLI) that an otherwise disabled employee who was compliant with Oregon’s Medical Marijuana Act, Oregon Revised Statutes section 475.300 et seq. (OMMA), was entitled to reasonable accommodation.

Eleven years before Emerald Steel Fabricators hired him, Anthony Scevers began suffering from anxiety, panic attacks, nausea, vomiting, and severe stomach cramps that substantially limited his ability to eat. In 1996, after other medical treatments failed to relieve his symptoms, he turned to medical marijuana. In 2002, he sought and received approval to be on the Oregon OMMA registry, which, subject to some restrictions, entitled him to “engage in ... the medical use of marijuana.”

Emerald Fabricators appealed. On a vote of 5-2, the Oregon Supreme Court reversed. The employer again argued that it was not obligated to engage in the interactive process if Scevers was engaged in the current use of illegal drugs. The court agreed. It went on to conclude that although Scevers was not engaged in the current use of illegal drugs under Oregon law, his use was illegal under the definition contained in federal law. Based upon the Supremacy Clause of the U.S. Constitution, the court said, the federal prohibition on any use of marijuana trumped Oregon’s law permitting it.

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After a lengthy public comment period and legal challenges, a U.S. Department of Transportation (DOT) drug testing regulation requiring employees of aviation, railroad, motor carrier, mass transit, pipeline and maritime industries who previously failed a drug test to partially disrobe and be directly observed during return-to-work and follow-up tests will go into effect August 31, 2009. Until then, observed collections are required only if a donor is suspected of attempting to adulterate or tamper with a test sample.

The requirement sat in limbo after the U.S. Court of Appeals for the D.C. Circuit, stayed enforcement in November 2008 pending a legal challenge. However, as previously discussed, in May 2009 the court held the regulations valid and lifted the stay on July 1, 2009.

Accordingly, the DOT has announced starting August 31, 2009, employees subject to DOT return-to-work and follow-up testing must be directly observed when providing a urine sample. Additionally, before the collection begins, shirts must be raised above the waist and clothing lowered to expose genitals in order to allow the observer to verify the absence of any cheating devices. 

This entry was written by Nancy N. Delogu.

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An undivided panel of the United States Court of Appeals for the District of Columbia Circuit has upheld a new drug testing regulation that requires employers in the aviation, rail, motor carrier, mass transit, maritime and pipeline industries to directly observe every employee who must produce a urine sample for return-to-work and follow-up drug tests. The regulation, issued by the U.S. Department of Transportation (DOT) in June 2008, requires employees subject to observed collections “to raise their shirts, blouses, or dresses/skirts above the waist, and lower their pants and underpants, to show the observer, by turning around, that they do not have a prosthetic device on their person. After this is done, they may return their clothing to its proper position,” and produce a specimen “in such a manner that the observer can see the urine exiting directly from the individual into the collection container.”

Although the Omnibus Transportation Employee Testing Act directs the DOT to adopt procedures that “promote[], to the maximum extent practicable, individual privacy in the collection of specimen samples,” the agency justified the intrusive regulation given the vast and increasing number of products designed to defeat urine drug tests. A group of employers and unions, however, challenged the regulation, arguing first that it violated the Administrative Procedure Act (APA), which prohibits arbitrary and capricious agency action, and second, that it was unconstitutional under the Fourth Amendment, which prohibits unreasonable government searches.

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UPDATE: After the regulations described below were published, implementation of a portion of the rules was delayed. Specifically, implementation of the regulation requiring observed urine collections be performed for all workers scheduled to take return-to-duty or follow-up tests was voluntarily delayed by the DOT until November 1, 2008. On October 31, 2008, the U.S. Circuit Court for the District of Columbia issued an order imposing a temporary stay on the implementation to give the Court time to review the new requirements, which have been challenged by a group of transportation unions. Thus, observed collections are not required for return-to-duty or follow-up tests at this time, although other regulations calling for observed collections remain in effect.

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In a classic case of a few bad apples ruining the barrel, drug testing practices for regulated employees are about to become stricter as a result of recent modifications by the U.S. Department of Transportation (DOT). 

On Wednesday, June 25, the DOT issued new drug testing regulations in what amounts to the most significant overhaul of the transportation industry drug and alcohol rules (codified at 49 CFR Part 40) since 2001.

The DOT frames this change as addressing “specimen validity,” and includes various mandatory tests and changes to the rules on adulterant testing, yet truly the most significant change for employers and collectors is that far more urine specimen collections must be directly observed. Commencing with the rule’s effective date, August 25, 2008, all return-to-work and follow-up urine collections must be observed collections. (In an announcement in the August 26 Federal Register, the DOT changed the effective date of observed urine collections to November 1, 2008.)

In the preamble to the new final rule, the DOT acknowledges that the Omnibus Transportation Employee Testing Act directs the DOT to use procedures that “promote[ ], to the maximum extent practicable, individual privacy in the collection of specimen samples,” the agency stated however, that given the vast and growing numbers of products designed and marketed to beat urine drug tests, “the measure of what is the maximum extent of privacy has shifted somewhat.”

The new rule will require employees “to raise their shirts, blouses, or dresses/skirts above the waist, and lower their pants and underpants, to show the observer, by turning around, that they do not have a prosthetic device on their person. After this is done, they may return their clothing to its proper position,” and produce a specimen “in such a manner that the observer can see the urine exiting directly from the individual into the collection container.”

The DOT points out that presently, observed collections (which currently require no disarrangement of clothes and which are conducted by same-sex collectors) are required only of people who have given the collector reason to believe they have tampered with a test. The addition of mandatory observed collections for return-to-work and follow-up tests--required of workers who have tested positive for a prohibited drug in the past--are clearly designed to target those transportation workers most likely to have resumed illegal drug use, and thus have the greatest interest in ensuring a negative test result by whatever means necessary.

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Workplace privacy obligations continue to grow more burdensome for employers. As more information about workers becomes readily available, employers are often caught between a sense that failing to use that information may lead to negligent hiring and retention claims, and a fear that using or disseminating information that is private or protected will lead to litigation in its own right.

Littler Mendelson is a member of the International Association of Privacy Professionals, and a Gold Sponsor of the IAPP's "Practical Privacy Series Human Resources 2008" conference. The conference, which will take place in New York City on June 17, will cover a range of topics, including:

• "What to Do When a Human Resources Security Breach Inevitably Occurs":  A security breach involving human resources data is high-stakes for organizations. This presentation focuses on the most common causes of HR security breaches and explains from the trenches how to respond in compliance with applicable notice laws, and without a disgruntled workforce when the dust clears;
• "It's 10:00 A.M. -- Do You Know Where Your Employees Are and What They Are Doing?": New technology offers employers ever more sophisticated tools to keep tabs on their employees, but to what extent does this monitoring expose them to liability? This session examines the evolving U.S. law on these issues and discusses the challenges for global employers confronting data protection regimes modeled on the EU Data Protection Directive;
• "H.R. Risk Assessments": Safeguarding HR information often plays second fiddle to seemingly more imperative privacy data, such as patient or customer information. Yet it can be among the most sensitive at an organization. This presentation highlights key lessons learned from HR privacy risk assessments across industries, and from helping organizations remediate weaknesses in their control environments. This session looks into the logistics of operationalizing a response program and handling specific recurring incidents; 
• Littler's own Phil Gordon will speak on "Sex Offenders, Terrorists, And Video Resumes: How Far Can You Go To Get Information About Prospective, Current, And Former Employees?": With ready access to sensitive personal information, employers are under increasing scrutiny to maintain a workforce that is beyond reproach. Social networking sites, blogs and other resources offer a wealth of information on candidates and employees. How deeply should employers tap these new information sources? This presentation will help frame the debate for your own organization; and
• I'll be talking about how--and when--an employer can use sensitive medical information in the employment context in a presentation called "How To Handle Employee Health Information And Drug And Alcohol Testing In Compliance With The Alphabet Soup Of State And Federal Confidentiality Requirements": Managing employees’ health is a critical business imperative. Employers confront a maze of laws and regulations governing the confidentiality of employee health information, and dire consequences for mishandling such information. This session addresses questions on collecting, using, storing, documenting and disclosing employee health information, among other concerns.

If you are interested in these topics, or know someone who is, go to International Association of Privacy Professionals and click on the box titled "Practical Privacy Series." We'd love to see you there!

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Gary Ross, the military veteran who urged his employer to accommodate his medical use of marijuana, has failed to convince the Supreme Court of California to revive his case.  On January 24, 2008, the Court affirmed (5 - 2) the trial and appellate court decisions that RagingWire Telecommunications was not required to employ Ross, who tested positive for marijuana, even though his use of the drug has been decriminalized under California’s Compassionate Use Act.

As discussed in an earlier posting, Ross argued that his former employer, RagingWire, had discriminated against him under the California Fair Employment and Housing Act by terminating him because of his positive drug test which resulted form his use of marijuana for his disability.  He also alleged that he had been wrongfully discharged as a matter of public policy.  Yesterday’s decision rejects Ross’s disability discrimination claim for one simple reason:  The Compassionate Use Act provides only that individuals who use marijuana pursuant to a recommendation from a health care provider have a defense to criminal prosecution.  Noting that California voters cannot obscure federal laws which state that the drug poses a risk of abuse, the Court concluded that the Compassionate Use Act simply fails to address the rights of employers and employees.  The Court further observed that any effort to enact such a law would likely generate significant controversy, and it declined to read such a requirement into the limited protections of the statute.

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On November 6, 2007, the California Supreme Court heard long-awaited arguments in the closely watched "medical marijuana" case of Ross v. RagingWire Telecommunications, Inc.  Gary Ross, a network administrator, was terminated eight days into his employment after testing positive for marijuana.  Ross challenged the termination because he had a doctor's recommendation that he use marijuana to relieve chronic back pain.  Ross has alleged that because his use of marijuana was lawful under California's Compassionate Use law, his employer was obligated under state law to accommodate his disability by permitting him to use marijuana as recommended by his physician.  Ross’s attorneys also argued that his discharge violated California's public policy, including California’s constitutionally created right to privacy.

Marijuana use is illegal under federal law.  California has effectively “decriminalized” marijuana use by adopting the Compassionate Use Act of 1996.  The Act allows individuals to purchase, possess, cultivate, and use small quantities of marijuana for medicinal purposes without fear of prosecution by state officials.  Federal officials may prosecute those who use marijuana pursuant to the state law, but as a practical matter, enforcement efforts are much more likely to be focused on cultivation and distribution networks.  The statutory language makes it clear that employees may not possess or use marijuana at work – leading Ross’s attorneys to argue that by implication, the law intended that employees be permitted to use the drug outside of work. Continue Reading...

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This year's second annual National Drug-Free Work Week is taking place October 14 through 20. The purpose of Drug-Free Work Week is to highlight the importance of being drug-free as an essential component of a safe and healthful workplace.   Drug-Free Work Week is sponsored by the U.S. Department of Labor in collaboration with members of its Drug-Free Workplace Alliance.   

In a press release, the Department emphasized the widespread importance to employers of Drug-Free Work Week themes, consistent with a survey completed in November 2006 for Hazelden Foundation, a national non-profit organization that helps people with addiction.  The survey found that while most human resources professionals recognize substance abuse as one of the most serious problems facing the workplace today, few employers proactively address these issues but, rather, wait for problems to arise. Continue Reading...

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More and more businesses — especially those in highly regulated industries such as banking, telecommunications, and health care — are engaging in “vendor management” as they implement increasingly rigorous information security programs.  Confirming the trustworthiness of vendors’ employees who are permitted on premises or who are authorized access to sensitive information is a cornerstone of such programs.  Consequently, these businesses are starting to make a variety of demands in contract negotiations and requests for proposals (RFPs) for background checks and drug-testing of vendor employees.

The demands vary based upon the industry and the company.  At a minimum, these businesses require their vendors to certify that employees who will be working on the customer’s account have successfully completed a background check and a drug screen.  At the other end of the spectrum, businesses specify the contents of background and drug screens and demand the right to audit the results or even conduct their own background checks and drug tests of the vendor’s employees.

These demands put vendors “between a rock and a hard place.”  On the one hand, vendors want to maintain strong relationships with valued customers and win contracts with new customers.  On the other hand, turning over background checks and drug test results to a customer can raise red flags with the vendor’s workforce regarding their privacy.  And, if not properly handled, the issue can mushroom into an employee relations nightmare and expose the vendor to privacy-based claims.  The problem is particularly acute for vendors who have not previously required current employees, or even job applicants, to submit to background checks or drug tests.

Here are three of the steps vendors might consider to avoid this catch 22:

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