Safety and OSHA News

Court upholds firing of employee who tested positive for cocaine

In a random drug test, an employee in a safety-sensitive position tested positive for cocaine. When he was fired, he filed a lawsuit against his employer arguing his job wasn’t safety-sensitive. How did a court rule? 

Roberick Washington worked at the Wyandotte County Juvenile Detention Center in Kansas City, KS. He had been promoted from being a juvenile care worker to a lieutenant. As a lieutenant, his responsibilities included training other personnel. However, he still interacted with residents, including conducting disciplinary hearings.

The county has a random drug testing policy that applies to employees in safety-sensitive positions, including “juvenile attendant.” The policy says, “Failure to pass a drug or alcohol test is just cause for discipline including discharge.” The county’s HR guide permits “suspension from work for a first-time drug offense.” However, the HR guide doesn’t restrict the county from bypassing the suggested disciplinary procedures and a “more severe penalty than indicated may be imposed if warranted by the circumstances.”

In 2012, Washington supplied a urine sample as part of a random drug test, and the sample tested positive for cocaine. The county fired Washington and he filed a complaint in court. A federal court dismissed the complaint, and Washington brought his case to the 10th Circuit which recently handed down its opinion.

Among Washington’s claims: The random drug testing constituted an unreasonable search.

A previous 10th Circuit opinion states:

“When a government employer requires its employees to submit to a urinalysis test for the purpose of detecting illegal drug use, the test is a search subject to the Fourth Amendment and must be reasonable.”

Usually a search must be based on suspicion of wrongdoing by an individual. But this isn’t necessarily the case when the government claims a “special need.” Special need cases can include the health or safety of the person being searched or other people directly affected by that person’s conduct.

The county argued it administers random drug tests to juvenile lieutenants to “ensure the safety and welfare of the children housed in the Juvenile Detention Center.”

The 10th Circuit said this was a legitimate special need, and it rejected Washington’s argument.

Washington also argued that he performed mainly administrative tasks as a lieutenant, therefore it wasn’t a safety sensitive position.

But the 10th Circuit noted Washington had some interaction with and access to the center’s juvenile residents. For example, he was required to report whenever a fight broke out. He also filled in for various positions that are safety sensitive.

“The frequency or regularity of Washington’s contact with residents thus does not affect our conclusion, since his on-call status made paramount his preparedness,” the court wrote.

Washington also argued that the county didn’t follow its own rules by firing him for a first offense. But the court noted the policy guide specifically stated that the county could bypass what the guide said depending on circumstances.

Having rejected all of Washington’s arguments, the 10th Circuit found it was reasonable to consider the lieutenant position as safety sensitive, so Washington’s firing would stand.

(Roberick Washington v. Unified Government of Wyandotte, KS, U.S. Circuit Crt. 10, No. 15-3181, 2/6/17)

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