Page 68 - Occupational Health & Safety, September 2017

Drug Testing
Significantly, the supervisor was found personally liable for $50,000!
The case and its numerous appeals lasted until Dec. 30, 2016. In the end, the punitive award of $500,000 was reversed, but the jury determination that the state mandatory drug testing law was vio- lated was affirmed against both the company and the supervisor.
The jury and the courts made it clear that, in Connecticut, there must be reasonable suspicion before a drug test can be required. In this case, no evidence of reasonable suspicion was presented, and the jury concluded that the supervisor’s multiple threats to fire the em- ployee if he didn’t take a drug test “was a scheme concocted to pro- vide just cause to terminate his employment.” (135 Conn. App. 589).
In another Connecticut case, Doyon v. Home Depot U.S.A., Inc., No. 2:92-CV-980 (JAC), 850 F.Supp. 125 (1994), the company’s na- tionwide “substance abuse policy” required mandatory drug test- ing of any employee involved in a “serious work-related accident,” including those that cause property damage in excess of $200. If a test was positive for any employee with less than two years of con- tinued service, the employee would be fired.
Plaintiff worked at a store in Southington, Conn., for less than two years. While operating a forklift, he turned a corner, the load shifted, and a few bags of mulch fell onto a customer’s car, causing more than $200 in damage.
Doyon’s drug test was positive for marijuana, and he was fired. He sued, arguing the policy violated Section 31-51x, which allows testing only when there is reasonable suspicion that the employee is under the influence of drugs. Home Depot argued that an accident was itself suspicious, citing government statistics of the number of accidents that involve drug use.
The court agreed with Doyon. Citing legislative history, the court noted that Section 31-51x is based on the Fourth Amend- ment to the United States Constitution concept of individualized suspicion. The court held that an accident by itself does not suf- fice—individualized suspicion of drug use is required.
A summary of a few other state mandatory law non-compliance cases (cited cases are only examples of the many cases in each state):
California
■ 2015: $31,001 paid by a California employer for violating mandatory state law. Employer’s problems included that: 1) there was no notice of the random, unannounced drug tests; 2) LRLO had no individualized suspicion of drug use by Aro and O’Toole; 3) when they objected to the testing, they were told that they would be suspended; 4) they were required to stand in line and sign a consent form in the presence of other employees; 5) they were observed while providing urine samples; 6) the plaintiffs felt threatened and intimidated because they complained about unpaid
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