Drug-Free Program May Have Gone Too Far

By Scott M. Wich March 22, 2017

Implementing drug-free policies can be tricky. As the 10th U.S. Circuit Court of Appeals recently made clear, inquiries into the drug-free status of employees can cross the line of permissible conduct.

Steven Williams worked for FedEx from 1989 until 2014. In 2008, he began taking OxyContin for chronic neck pain that had been caused by an automobile accident. Around 2010, Williams was prescribed Suboxone as a substitute for OxyContin. In September 2011, he sought multiple medical treatments related to side effects from Suboxone withdrawal. On Sept. 26, 2011, FedEx granted Williams a medical leave of absence.

A few days later, Williams contacted FedEx's short-term-disability benefits provider, Aetna Life Insurance, to request benefits. Williams told the Aetna representative that he was suffering from work-related stress and, further, that his withdrawal from Suboxone was preventing him from working. Aetna notified FedEx that Williams had "filed a disability claim for alcohol or substance abuse." In turn, FedEx instructed Williams to contact an employee assistance program (EAP) vendor that assists employees with substance-abuse problems.

On Nov. 9, 2011, FedEx explained to Williams that Aetna had reported that the medical leave was due to an alcohol- or drug-related illness, which subjected him to FedEx's drug-testing policy. The policy required return-to-duty testing and follow-up testing for five years. Williams reported to the EAP vendor and received clearance from both the vendor and medical providers that he had no substance-abuse problem.

However, based on Aetna's initial report, FedEx conditioned Williams' return to work on a post-treatment drug screen, follow-up drug testing for five years and reporting of the use of prescription medications. Williams returned to work for approximately two years before resigning in March 2014.

[SHRM members-only how-to guide: How to Document Reasonable Suspicion]

After resigning, Williams filed a variety of Americans with Disabilities Act (ADA) claims against FedEx and an Employee Retirement Income Security Act (ERISA) claim against Aetna for a breach of fiduciary duty by making a determination of chemical dependency and communicating that determination to FedEx. A federal district court dismissed all of the claims, and Williams appealed.

The federal appeals court affirmed the dismissal of the ERISA claim against Aetna and all but one of the ADA claims against FedEx.

The appeals court noted that FedEx had a legitimate business reason to drug-test Williams in that it relied on the initial report from Aetna. Whether the decision to rely on that report in light of other evidence from the EAP vendor or other medical professionals was "wise, fair or correct" was irrelevant. The court found that FedEx had a good-faith belief that Williams suffered from a substance-abuse problem when it placed him in the company's drug-testing program.

However, the appeals court found insufficient proof that judgment in favor of FedEx should have been summarily granted on the claim that FedEx's required disclosure of the use of prescription medications constituted an unlawful medical inquiry. The requirement went beyond drug testing to require information that could reveal whether Williams was suffering from any health defects. As such, the court sent this particular claim back to the lower court for further consideration.

Williams v. FedEx Corporate Services, 10th Cir., No. 16-4032 (Feb. 24, 2017).

Professional Pointer: Well-drafted policies are only the first step in employment law compliance. Proper implementation of such rules is essential to limit legal liability. 

Scott M. Wich is an attorney with the law firm of Clifton Budd & DeMaria, LLP in New York City.


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