What Is the Legal Definition of "For Cause" in Employee Drug and Alcohol Testing?

Carolyn Buppert, NP, JD

Disclosures

February 27, 2006

Question

I am an advanced practice nurse (APN) working in an employee health office. I was asked by the Human Resource Director to perform a "for cause" breath test on an employee. I asked what the "for cause" issue was and was told the director had received an email accusing the employee of consuming alcohol and abusing drugs. What is the legal definition of "for cause?"

Response from the Expert

Carolyn Buppert, NP, JD
Attorney, Private Practice, Annapolis, Maryland

Although the term "for cause" is used frequently in relation to drug and alcohol testing, I don't find a legal definition for it in this context. In general, employers have considerable latitude to test employees for drug and alcohol use. Specifics vary from state to state.[1] State law may or may not prohibit random testing. For example, Connecticut law requires "reasonable suspicion" before an employer may compel testing, and the employer must show that the drug or alcohol use was adversely affecting the employee's job performance. In Louisiana, an employer need not show reasonable cause to test an employee. Maine permits testing when the employer has a compelling reason to do so. Maryland allows employers to test their employees for drugs and alcohol for "any legitimate business purpose." In Virginia, there is no law governing employee drug testing.

The legal issues are whether the drug testing is:

  • An invasion of personal privacy;

  • Being done based on some discriminatory basis, such as race, sex, or disability;

  • An unreasonable search and seizure as prohibited by the US Constitution; or

  • In compliance with the Americans with Disabilities Act (ADA).

An employee might argue that:

  • His privacy was violated if the testing was unnecessarily or excessively imposed, if results were divulged indiscriminately, or if the procedures for obtaining the specimens were indiscreet;

  • Testing was being done on the basis of race, sex or disability, if testing was done without another specific cause;

  • A drug test was an unreasonable search and seizure if done without reasonable cause; or

  • His alcoholism is something that the employer needs to make reasonable accommodations for, as alcoholism is a disability under the ADA.

A "cause" or "reasonable suspicion that the employee is under the influence of drugs while on duty" can make a test reasonable rather than unreasonable. An employer may forbid employees from using drugs or alcohol during working hours. The employer must be able to show that the test was consistent with a business necessity. In some situations, an employer will be able to argue that there are special needs to safeguard public safety.

In general, before testing, employers should, to avoid potential civil rights lawsuits:

  • Obtain a written consent from the employee,

  • Give employees notice that they may be tested and the reasons why,

  • Document a specific behavior or performance that triggered the testing, and

  • Have at least 1 other person corroborate the opinion of whomever is complaining about the employee.

In the situation you presented, an employee could argue that another employee's accusation was not enough to provide cause or reasonable suspicion. The employer may want to corroborate the email accusation by getting a report from more than 1 employee, including a description of specific behaviors that suggested substance abuse.

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