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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.

Employers have approximately one month to amend their policies to reflect the new regulatory requirements, and ensure that their managers and collectors are trained to implement them correctly. Employers who are not subject to DOT regulation, but who, nonetheless, model their drug and alcohol testing program for non-regulated employees on the DOT regulations should beware; many states bar observed collections, making it more important than ever that employers accurately distinguish between which tests are employer-mandated and which are required by federal regulation.

For further analysis, please see Littler ASAP: Transportation Workers In All Industries Face Tougher Drug Testing Procedures: Observed Collections Designed to Thwart Abuses by Nancy N. Delogu and Donald W. Benson.

• "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!

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.

While employers rejoice, the decision is a buzz kill for those hankering for a decision that would broaden the rights of workers who use marijuana for medicinal reasons in the 11 states that have taken steps to decriminalize the use of the drug for that purpose.  Ross’s supporters have vowed to seek legislative action to broaden state law employment protections for those who use marijuana medicinally.  Judge Kennard’s strongly worded dissent emphasizes that employers have a legal obligation to accommodate disabled employees’ use of legitimate prescription medications.  This is true even in cases where those drugs affect performance in a manner comparable to the use of marijuana.  This argument is likely to fan the flames of future efforts to seek workplace protections for those workers; however, it most likely will fail given the difference in status between lawful prescription durgs and marijuana, the possession of which remains illegal under federal law.

For a comprehensive discussion of the decision, see Littler's ASAP "California Employers No Longer Holding Their Breath:  Applicants Using Medical Marijuana May Be Denied Employment" by Rod M. Fliegel and Nancy N. Delogu.

Ross’s attorneys pointed out, however, that RagingWire had no obligation to drug test Mr. Ross under federal law, and that there was little risk that the Company could be held liable for accommodating his off-job drug use.  In addition, California public policy strongly supports an individual’s right to employment absent discrimination on the basis of disability, and further contains provisions protecting individuals’ rights to make basic decisions regarding their medical care.  Ross’ attorneys further argued that the California Constitution’s privacy protections also militated in favor of Ross, absent evidence that he was impaired by his marijuana use while at work.

Significantly, Ross’s advocates did not challenge an employer's right to conduct the drug test in the first place, and both agreed that the California Supreme Court's decision in Loder v. City of Glendale remains good law.  The Loder decision established that California employers may conduct workplace drug testing in circumstances that do not unduly intrude upon an individual's right to privacy.  The opinion discusses at length the various ways in which illegal drug use adversely affects employers, and concludes that attempts to detect such use may be tolerable incursions upon an employee's right to autonomy privacy.  The fact that medicinal use of marijuana is now technically not unlawful as a matter of California law begs the question of whether, and to what extent, employers must accommodate that use like any other prescription medication which may have adverse effects on an individual's behavior or job performance.

Ultimately, many of the questions raised by the Justices were not adequately addressed by Ross’s attorneys:  If the test is lawful under California law, and the drug use is arguably lawful under California law, what, if anything, must the employer do to accommodate such use?  Can permitting the off-duty use of marijuana ever be deemed a reasonable accommodation?  As a practical matter, RagingWire had not considered whether to accommodate Ross’s marijuana use, and neither side appeared willing to compromise its position regarding Ross’s right to use marijuana.  Interestingly, the attorneys for Ross agreed that an employee who came to work under the influence of drugs could be disciplined by his employer, but failed to explain the difference between a positive drug test and evidence of impairment.  If that line of reasoning is adopted, it may have the curious result of barring employers from refusing to hire individuals who use marijuana pursuant to the Compassionate Use Act, but permitting employers to discharge such individuals for testing positive after a workplace accident or other incident suggestive of impairment.

Ultimately, court-watchers came away with no clear sense of how the California Supreme Court might rule.  Given both parties’ support for the Loder case, however, it appears unlikely that the privacy analysis applied to workplace drug testing, which balances the needs of the employer against the privacy interests of the employee, will be revised.