Would Wrongful Termination Claim be Appropriate for Employee Refusing Drug Test Conducted in Unauthorized Laboratory?

Tweet

With marijuana being legalized for recreational use in four states including the District of Columbia, and being legalized for medicinal purposes in twenty-three states in the nation including the District of Columbia, employers are beginning to worry about what this may mean for the employees in their companies and whether marijuana may be legalized in their state.  Particularly, in North Carolina, while the likelihood of legalizing marijuana is low, there may be other repercussions for North Carolina employers.  These repercussions do not arise because of legality in other states, necessarily, but may arise due to the use of controlled substances, generally, and the rise in drug testing of employees within companies.

While the constitutional argument has been made that mandatory drug testing is a violation of Fourth Amendment rights, North Carolina employers are permitted to conduct drug tests on their employees, although they are not required.  The North Carolina Department of Labor permits employers to make drug tests a condition of hiring or a condition of continued employment.

The focus of the [North Carolina] regulations regarding testing state that the test itself must be conducted by the approved laboratory.

A North Carolina employer is required to follow the statutory guidelines set by the North Carolina General Assembly in conducting drug tests of its employees.  Of these requirements is that the employer use an approved laboratory for the screening and conducting of drug tests of its employees.

The purpose of the North Carolina Controlled Substance Examination Regulations is to ensure that employees and other individuals are protected from unreliable and inaccurate examinations and screening for drugs and other controlled substances.  The regulations do not require that the employer have written policies for controlled substance testing, but it is often encouraged to have such policies on the books to ensure that employees are aware of the requirement to pass drug tests conducted in the workplace.  It is important to note that the controlled substance examination is to be performed in a minimally invasive manner so as to avoid violations or prospective violations of the Fourth Amendment rights against unreasonable search and seizure, and to permit some reasonable expectations of privacy to remain.

The focus of the regulations regarding testing state that the test itself must be conducted by the approved laboratory.  The employer may collect the samples of the parties at the worksite or may hire a third party.  The actual collection of the samples does not have to be done by the approved laboratory, but it is important to ensure chain of custody of the samples taken by employees.

An approved laboratory is a clinical chemistry laboratory that performs controlled substances tests and has demonstrated satisfactory performance in forensic urine drug testing programs for the type of tests and controlled substance’s evaluations the laboratory performs.  These approved laboratories must be approved by either the United States Department of Health and Human Services or the College of American Pathologists.

[I]t has not been addressed what happens when an employee refuses to take a drug test from an unapproved testing facility.

While North Carolina employers are permitted to conduct drug tests on their employees as a condition of continued employment, and an employer may terminate employment of employees who refuse to take a drug test, it has not been addressed what happens when an employee refuses to take a drug test from an unapproved testing facility.  The North Carolina Supreme Court addressed the issue of wrongful termination for a violation against public policy when an employee was fired for not passing a drug test, but the drug test was conducted by an unapproved laboratory.  However, the Court has not addressed what would happen if an employee refused to take the drug test because it was to be conducted by an unapproved laboratory.

As mentioned above, the North Carolina Supreme Court has in fact hear a case regarding the firing of an employee for failing a drug test, and whether the fact that the drug test was conducted by the unapproved laboratory was a violation of public policy, and therefore opened the employer to a wrongful termination claim for a violation of public policy.  In Garner v. Rentenbach Constructors, Inc., the plaintiff-employee was terminated when he failed the mandatory drug test conducted by the employer.  The employee sued for wrongful termination.  Among his allegations, the employee alleged that he was wrongfully terminated because the fact that he was discharged for failing a drug test was in violation of North Carolina public policy because the test was conducted by an unapproved laboratory.

The premise of his argument was that public policy requires employers to use an approved laboratory to conduct and test the drug test conducted by the employer.  When the employer does not use the approved laboratory, they are subject to civil penalties under the North Carolina Controlled Substances Examination Act.  The court, however, did not agree with this argument, and held that it was not a wrongful discharge in violation of public policy.

Employees in North Carolina are at-will employees unless they have an employment contract stating that they are employed for a particular, explicitly specified period of time.  This means that an employee may be fired for any reason or no reason at all, but not for an illegal reason.  Wrongful discharge suits are often brought when an at-will employee is fired for no reason, or what they believe to be a bad reason.  This trend comes from a misunderstanding of their employment status as an at-will employee.

An employee does not have a claim for wrongful termination if they are at-will unless they can show that the employer [fired the employee for an illegal reason or for a reason in violation of public policy.]

Employers do not have to give reasons for firing you if you are at-will, and they can fire you for a reason you do not agree with.  An employee does not have a claim for wrongful termination if they are at-will unless they can show that the employer: fired them for an illegal reason, such as a violation of their civil rights based on age, race, sex, religion, national origin, color, disability, or pregnancy; fired them in retaliation for you taking advantage of one of their legal rights, such as filing a workers’ compensation claim; or fired them in violation of public policy, such as refusing to lie under oath to protect the employer in a legal proceeding.

In Coman v. Thomas Manufacturing Company, the court adopted the public policy exception to the at-will employment doctrine.  They stated that there is no right to terminate an employee for a reason that is an unlawful reason or “one that contravenes public policy.”  This court in particular focused on public policy relating to public safety.  The idea behind this exception is that we do not want to be supporting violating public policy, and the court would be seen as doing so if they permitted termination for someone not wanting to violate public policy – it would be counterintuitive in a way.

[I]f the employee objects because of the use of an unapproved laboratory, this may be seen as the employee objecting to allowing the employer to commit a violation of public policy . . .

An employee may be terminated for any reason, just not an illegal reason, under the at-will employment doctrine in North Carolina.  However, an illegal reason for termination may be when the employee is terminated in violation of public policy.  Because of this idea, and our understanding of the decision in the Garner v. Rentenbach Constructors, Inc. case, the question remains what might have happened if the employee refused the drug test prior to submitting to the test because an unapproved laboratory was conducting the test?

While no cases have particularly addressed this issue, it is a valid question.  Many object to submitting to drug tests based on personal beliefs.  When this occurs, an employer often has grounds to terminate this employee for failing to submit to a random drug test.  However, if the employee objects because of the use of an unapproved laboratory, this may be seen as the employee objecting to allowing the employer to commit a violation of public policy, a violation of the North Carolina Controlled Substance Examination statutes contained in the North Carolina General Statutes, Chapter 95, Article 20.

But would this pass the court’s approval?  It is hard to say when the court has not yet ruled on this issue, but it likely would work.  I would imagine the employee would have to show in their case in chief that they objected not for personal reasons, but in an effort to prevent the employer from violating public policy in the state.  This might be hard to prove, especially if the employee has been particularly resistant to the idea of drug testing in the workplace, generally.

Typically, too, the use of a claim for wrongful termination as against public policy has been used in instances where the employee refused to lie under oath for the employer in a legal proceeding, or when an employee is fired because the are pregnant, or another protected class (in addition to their federal statute claims).  However, the Court in Santifort v. Guy, stated that public policy exceptions to the at-will employment doctrine in North Carolina is confined to violations of public policies that are expressly contained in North Carolina’s General Statutes or North Carolina’s Constitution.  It appears that would be the case here, because the employee is going based on public policy that an employer must use an approved laboratory to conduct actual testing of employee drug tests.

While the issue is an interesting one, it is not all that likely that North Carolina courts will see this issue.  Many employers take very detailed steps and precautions when they require drug tests at their place of work due to the history of objections to drug testing in the workplace and the rise in legalizing of medicinal and even recreational marijuana use in other states, and the rise in the presence of illicit drugs in society.