Fail a Drug Test and Keep Your Job? It Could Happen

Remember that scene in Animal House, the one where Donald Sutherland is sitting around with Katy and some of the Deltas, smoking pot and discussing solar systems and atoms on the fingernail of a giant being? 

I kinda had that feeling as I read this recent opinion in which a CT federal judge addressed the Family and Medical Leave Act claims of a regular marijuana user who:

  • failed two consecutive workplace drug tests,
  • got caught trying to mask the results of a third drug test,
  • no-showed a fourth drug test, and
  • claimed FMLA violations after the company fired him

Under the FMLA, an eligible employee can take up to 12 weeks of leave in a 12-month period for, among things, his own “serious health condition.”  There are a few ways to satisfy the requirements for a “serious health condition.”  Basically, it’s (1) an illness, injury, impairment, or physical or mental condition that (2) involves continuing treatment by a health care provider or inpatient/overnight care, where (3) the employee cannot perform the functions of his position.

According to the DOL:

“treatment for substance abuse may be a serious health condition if the conditions for inpatient care and/or continuing treatment are met. FMLA leave may only be taken for substance abuse treatment provided by a health care provider or by a provider of health care services on referral by a health care provider. Absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.”

Notwithstanding all of that, an employer can enforce its work rules against someone who tests positive for drugs. In this case, the employer had a policy that someone who tests positive for drugs can’t return to work unless/until they clean up their act.

But, Your Honor! Substance abuse is a “serious health condition.”

This isn’t an exact quote. But, it does mirror the way the court framed the plaintiff’s argument. And here’s the court’s takedown:

“The language of the regulation does not support plaintiff’s contention that the mere presence of marijuana in plaintiff’s body constitutes “substance abuse”: it denies FMLA protection to an employee for mere use of a prohibited substance, as opposed to receipt of treatment for substance abuse. No reasonable jury could conclude that the mere presence of marijuana in plaintiff’s body constituted “substance abuse” within the meaning of the FMLA and, accordingly, that plaintiff suffered from a ‘serious health condition.'”

But, Your Honor! My forced suspension made me literally unable to perform the functions of my position.

Same caveat as before. Similarly, the court gave this one the back of the hand:

“I conclude that plaintiff was not incapacitated within the meaning of the FMLA because he remained physically capable of working; his inability to work was not ‘due to the serious health condition, treatment therefore, or recovery therefrom,’ but rather was due to his forced suspension until he could provide a negative drug test pursuant to defendant’s drug policy.”

But, Your Honor! I did undergo continuing treatment by a health care provider. I mean, my employer required me to take several drug tests, each of which required a “medical review officer” to certify the test results.

You know the drill:

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“Plaintiff’s only activity during his forced suspension was passing the time until his body could rid itself of the presence of marijuana. This hardly qualifies as a regimen of continuing treatment. It equally strains credulity to believe that plaintiff’s provision of urine to a laboratory constitutes ‘treatment’ for substance abuse, and that this ‘treatment’ was supervised by a health care provider because a licensed physician was required to interpret the results of a plaintiff’s urine samples… Put simply, plaintiff’s forced suspension by operation of defendant’s drug policy did not provide him with a ‘serious health condition.’”

As wacky as the facts of this case are, a little twist could have changed the ultimate outcome. That is, if the plaintiff actually received substance abuse treatment after he tested positive the first time, that leave from work would have qualified for FMLA leave.

Therefore, if you are inclined to give someone a second chance after testing positive for drugs at work — you don’t have to, but if you do — if you are a covered employer, you should immediately notify the employee of his rights under the FMLA, insist on a completed medical certification, and then notify the employee whether the leave will be designated as FMLA-qualifying.

This article first appeared on The Employer Handbook.