Employee’s “Odd” Behavior Justified Mandatory Drug Test

By Brian J. Lamoureux July 3, 2020Court Decisions

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.

If you have questions or would like more information on this issue or other employment and business matters, please contact PLDO Partner Brian J. Lamoureux at 401-824-5100 or email bjl@pldolaw.com.


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Brian J. Lamoureux is a Partner with Pannone Lopes Devereaux & O'Gara LLC and a member of the Employment Law, Cyber Law, Litigation and Corporate & Business Teams. He is also Practitioner Faculty in Management (Business Law) at Providence College, his alma mater.

His extensive practice areas include complex commercial litigation, employment law, construction law, social media law, and creditors' rights. In addition to being an accomplished business litigator, he has developed into a nationally-recognized voice on cutting-edge legal issues relating to social media. He is a frequent presenter, published author, and broadcast commentator on the topic and regularly appears on WPRI-TV, NBC10 and NECN-TV, the nation's largest 24-hour regional news network. His recent newspaper columns and articles include Social Media Privacy Law Impacts EmployersShould Employees Use Facebook at Work?Privacy Rights Being Tested in the Digital AgeDigital Age Hiring Process Filled With DangerTexting in the Workplace? Dangers Abound, Email Privacy Not a Guarantee in Workplace, and Worry About Workplace Prejudice? Clean Up. Mr. Lamoureux's work has also been published in the Providence Business News and Rhode Island Lawyers Weekly.

He successfully briefed and argued before the First Circuit Court of Appeals in a case confirming surety's rights to indemnification. He was lead counsel in a successfully resolved certified class action regarding the demutualization of an insurance company before the U.S. Bankruptcy Court for the District of Rhode Island, and served as trial co-counsel in one of the largest defense jury verdicts in the Federal District Court in Massachusetts.

Mr. Lamoureux has been honored for his achievements by the Providence Business News and was selected as a member of its 2011 Class of "40 Under Forty."

He earned his J.D., magna cum laude, from the Syracuse University College of Law, where he was a member of the Syracuse Law Review and Moot Court Honor Society. At the same time, he received a Master of Public Administration from the Maxwell School of Citizenship and Public Affairs. He also holds a Master of Arts degree in Political Science from the University of Rhode Island, where he was a teaching assistant in American Government and International Relations, and a B.A. in Political Science, cum laude, from Providence College.

Prior to joining PLDO, Mr. Lamoureux was a litigation partner in a large international AMLaw 200 firm. He is admitted to practice in state and federal courts in Rhode Island and Massachusetts, and is qualified to serve as a receiver in Rhode Island Superior Court. Mr. Lamoureux is also admitted to practice before the U.S. Supreme Court. To reach Attorney Lamoureux, please call 401-824-5100 or email bjl@pldolaw.com.

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