Employment Law Daily Firing employee who failed, adulterated, and dodged drug tests did not violate FMLA
Wednesday, September 13, 2017

Firing employee who failed, adulterated, and dodged drug tests did not violate FMLA

An employee who failed two drug tests, adulterated another, and failed to show for a fourth could not establish that his employer violated his FMLA rights by firing him, a federal district court in Connecticut has held. The court granted the employer’s motion for summary judgment against the employee’s claims that his termination constituted FMLA interference and retaliation (Carle v. Red Thread Spaces, LLC, September 11, 2017).

Drug policy for safety-sensitive job. The employee was an installation foreman for Red Thread Spaces, which installs office furniture and builds cubicles. His job included driving delivery vehicles. He knew his job was considered “safety-sensitive” by the Connecticut Department of Labor, and that the employer’s drug policy prohibited him from using marijuana and subjected him to random urinalysis drug testing. The employer’s drug policy also required an immediate suspension without pay for “any safety-sensitive employee who has tested positive for drug use … during a random drug screen or alcohol test,” and evaluation by a substance abuse professional. Any suspension would remain in place until an employee passed a drug test and was cleared by a substance abuse professional.

Suspended, terminated after drug tests. The employee tested positive for marijuana in 2013 and, under the drug policy, was suspended without pay until he could provide a clean drug test. He never did so, instead failing a second test, adulterating a sample for a third test, and then failing to appear for the fourth scheduled test. The employer then terminated him. He sued, claiming that his termination unlawfully interfered with his right to take FMLA leave and constituted unlawful retaliation against him for exercising his right to take FMLA leave.

FMLA regulations. The employee sought to cloak himself in FMLA protections for employees with substance abuse problems that rise to the level of a serious health condition. Under applicable regulations, an employee has a condition sufficient to trigger FMLA protections when a substance abuse problem, or its treatment, results in (1) the employee’s inability to work for more than three days, and (2) treatment by a health care provider on at least one occasion, coupled with continuing treatment under a professional’s care. But where an employee can make that showing, the FMLA “does not prevent an employer from taking employment action against an employee . . . [on account of] an established policy, applied in a non-discriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance abuse, [and] that pursuant to that policy the employee may be terminated whether or not the employee is presently taking FMLA leave.”

No FMLA interference. The court granted summary judgment against the employee’s FMLA interference claim, finding that no reasonable jury could conclude that he was entitled to FMLA leave or was otherwise denied any FMLA benefit to which he was entitled. First, the court found that his substance abuse problem did not qualify as a serious health condition under the FMLA. To meet that standard, the employee had to show more than the presence of marijuana in his system; he also needed to have received treatment for substance abuse, which he did not do. According to the court, the employee was not unable to work under the meaning of the FMLA, because any such inability was not caused by his substance abuse problem—he admitted he was physically capable of working—but by his forced suspension under the drug policy until he could provide a negative drug test, which he failed to do.

The court also rejected the employee’s argument that he met the requirement of undergoing a “regimen of continuing treatment” under 29 C.F.R. § 825.113(c). He was evaluated once by a substance abuse counselor and took several urinalysis tests which were evaluated by a physician. Other than that, he simply passed the time until marijuana no longer could be found in his system. The court held that it “strains credulity” that this course of conduct can constitute “treatment” for substance abuse under the supervision of a professional. Because the employee did not actually seek treatment for his substance abuse problem, he could not support his FMLA claim.

The court also did not credit the employee’s argument that the employer applied its drug policy to him in a discriminatory manner. The employer’s vice president of HR described the employee as a “pain in the ass,” both before and after plaintiff had failed his first drug test, and she ordered that he submit to a fourth drug test within two hours of learning that he had failed the third, which he claimed was unreasonable. But that evidence did not support a discrimination claim. Absent evidence that he was treated differently from a similarly situated employee (one who had failed multiple drug tests and also submitted an adulterated sample), he could not sustain his argument that the drug policy was applied in a discriminatory fashion.

No retaliation either. The court also granted summary judgment to the employer on the FMLA retaliation claim. The employee was not entitled to FMLA leave at all, since he did not receive qualifying treatment. Therefore, the evidentiary record did not support his claim that he was fired for attempting to exercise FMLA rights; instead, his termination was a straightforward application of the employer’s drug policy, the court held.

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