Employment Law Daily Failing to show proof of prescription meds after positive drug test means driver can’t challenge firing
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Friday, December 8, 2017

Failing to show proof of prescription meds after positive drug test means driver can’t challenge firing

By Marjorie Johnson, J.D.

A school bus driver who was fired after failing a random drug test, and who failed to provide any medical documentation supporting her claim that she had taken a doctor-prescribed pain killer for her sciatica after her shift on the date in question, failed to defeat summary judgment on her federal and state-law disability bias and failure-to-accommodate claims as there was no evidence suggesting pretext or that another job was available. A federal court in Pennsylvania also tossed her claims for wrongful discharge in violation of public policy and invasion of privacy/intrusion upon seclusion (Wilkinson v. Marvin E. Klinger, Inc., December 5, 2017, Brann, M.).

When the school bus driver was hired in 1991, she agreed to abide by the employer’s government-mandated drug testing policy. The policy, which set forth a detailed process for the administration of drug tests, provided that a medical review officer would review all DOT-regulated drug tests and in the event of a positive test result would make two attempts to contact the applicant/employee to determine whether it indicated illegal drug use or if other medical explanations could account for the result.

Positive drug test. In 2014, the driver was selected for random drug testing and provided a urine sample. Earlier in the day, following her morning bus route, she had taken Vicodin for her sciatica, for which she had a valid prescription from her doctor. When the drug testing company contacted her to notify her of the results, she explained that she tested positive because of her prior ingestion of Vicodin. She called again several days later to explain that she had taken a pain pill earlier in the day, but failed to provide any supporting medical documentation. The drug testing company subsequently informed the employer of her positive drug test result.

The bus company owner advised her that she was being terminated based on her positive drug test. He also denied her request to drive a van instead, explaining that van drivers were also required to undergo drug testing. Though he told her that she could have her job back if she could get the issue “straightened out” with the drug testing company, she failed to take any further action.

No pretext. Assuming arguendo that the employee’s sciatic nerve pain was a disability under the ADA, the court nevertheless tossed her disability bias claims since she failed to refute the proffered reason for her discharge—the positive drug test. Though she asserted that her otherwise unblemished employment history demonstrated that the explanation was unworthy of credence, this argument failed as a matter law. Additionally, the owner’s purported “knowledge” of her prescription was insufficient to discredit his asserted reason for firing her given both his reliance on the drug company’s representations concerning her failure to produce supporting documentation and the lack of alternatives created by the bus company’s own drug policy.

She also argued that there was no evidence that the drug testing company ever sent a letter to her employer indicating that she was unfit for duty and that the company lacked a HR department. However, the ultimate issue was whether discriminatory animus motivated the employer, not whether it was “wise, shrewd, prudent, or competent.” Moreover, though better communication might have been advisable and she used the painkillers to treat her alleged disability, an employer is not prohibited from firing an employee for misconduct related to her disability.

No failure to accommodate. Her non-accommodation claims also failed because she did not request the accommodation for her disability, but as a “possible end run” around her failed drug test. Moreover, she was denied her request to drive a van since she would still be required to undergo drug testing. And while the owner suggested that she could drive again if she resolved the matter by communicating with the drug testing company, she made no attempt to do so.

Wrongful discharge and privacy claims fail. Finally, the driver failed to advance her claims of wrongful discharge and invasion of privacy/intrusion upon seclusion. She relied upon the Third Circuit’s decision in Borse v. Piece Goods Shop, Inc., which involved a wrongful discharge claim by an employee fired after refusing to take a drug test. The appeals court held that the firing might violate Pennsylvania public policy based on cases recognizing a claim for tortious invasion of privacy. To determine whether a reasonable person would find a drug testing program highly offensive, the Borse court adopted a balancing test in which the employee’s privacy interest is weighed against the employer’s interest in maintaining a drug-free workplace.

The bus company argued that its policy satisfied this test because it respected its employees’ privacy interest to the greatest extent possible consistent with its express intent of protecting the children who rode its school buses. The court agreed. The driver explicitly consented to the drug testing, both in writing and through her pattern of behavior. Moreover, no reasonable jury would find that the policy sufficiently implicated her privacy concerns under Borse since testing was not performed in a manner offensive to the reasonable person and took into consideration valid medical prescriptions. Further, the way that positive test results were reviewed did not unduly intrude on private medical information.

The driver argued that the drug testing policy violated public policy because it authorized “blanket discharge” for any type of medication, regardless of whether it is prescribed by a physician. However, her argument was contradicted by the process of review, which utilized a medical review officer tasked with reviewing an employee’s medical history for a legitimate reason for the positive result and protected the employee’s personal information. The court also noted that the employer’s interest in maintaining a drug-free workplace was unquestionably heightened by the nature of the employer’s business—transporting children—and the presence of a government mandate requiring such a policy.

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