Most employers know that they cannot insist that an employee take a drug test unless the employer has “reasonable grounds” to believe that an employee’s job performance is impaired by drug use. Also, the employer must observe contemporaneous evidence of impairment such as behavior or speech. It is not simply enough to have a hunch or a suspicion of drug use.
Last month, the Rhode Island Supreme Court upheld an employer’s firing of an employee who refused to submit to a drug test. In that case, the employee was a delivery driver who allegedly injured himself making a delivery. Unbeknownst to his employer, the driver also had a medical marijuana card due to pre-existing injuries. When the driver reported his injury to his manager, the driver was described as acting “weird” by his coworkers. Smartly, the manager enlisted the help of a fellow manager to observe and corroborate his version of events.
After the driver was fired, he sued his employer, claiming that his behavior was caused by the injury he suffered while making the delivery. Therefore, he claimed that his employer did not have reasonable grounds to believe he was under the influence. The Supreme Court disagreed and held that, based upon the corroborated reports regarding the employee’s behavior, the employer had reasonable grounds to insist upon a drug test.
There are two key takeaways from this important case. First, it underscores how critical it is for managers to contemporaneously and competently chronicle their interactions with an impaired employee. Whenever possible and appropriate, managers should enlist the assistance of another “set of eyes” on the situation as a means of protecting everyone involved from rash conclusions or improper assumptions. Two sets of eyes are always better than one.
Second, the Supreme Court does not appear eager to second-guess employers’ decisions if employers can point to specific and articulated reasons justifying their insistence that an employee be drug tested. As long as those reasons are reasonable, courts will generally defer to the employer’s conclusions. And, although the Supreme Court did not focus on this employee’s holding of a medical marijuana card as an issue in this case, employers should continue to always tread carefully when confronting or disciplining employees who are suspected of impairment by legal or illegal drugs.