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Employee Dishonesty After Drug-Related Arrest Provides Grounds For Drug Testing

By Kathryn J. Russo
  • December 23, 2004

An employee's arrest for possession of drug paraphernalia and criminal trespass, together with his dishonesty in explaining his resulting absence from work, was sufficient to establish reasonable suspicion that he was using drugs illicitly, and to justify requiring the employee to submit to an employee assistance program (EAP) with unannounced drug testing, according to the Sixth Circuit U.S. Court of Appeals [Relford v. Lexington-Fayette Urban County Government, 2004 U.S. App. LEXIS 24464 (6th Cir. 2004)]. 

During his employment with Fayette County, Kentucky, Robert Relford, an electrician, was arrested on charges of criminal trespass and possession of drug paraphernalia.  Relford was incarcerated and was unable to report to work.  Instead of notifying his employer that he had been arrested, he had a friend report that he was sick and unable to come to work.  Despite Relford's attempt to obscure the reason for his absence, his supervisor soon learned Relford had been arrested and suspended him for five days.  In addition, the supervisor issued a reasonable cause testing notice stating his belief that Relford was under the influence of drugs and must immediately submit to substance abuse testing. 

Relford refused to cooperate or provide a urine sample and the County sought to terminate his employment for refusing to submit to a substance abuse test.  The local civil service commission denied the termination request, and ordered Relford to participate in an employee assistance program (EAP).  Through the EAP, Relford was subjected to drug counseling, evaluation and "drug-testing in random order."  Relford submitted to a drug test and tested positive for the use of illegal narcotics.  On the basis of this test result, the County again sought to terminate Relford's employment.  However, prior to a hearing on the issue, Relford resigned his position.  Relford filed suit in the United States District Court for the Eastern District of Kentucky, claiming violations of his Fourth Amendment rights in being forced to participate in the EAP-mandated drug testing.  The district court held that the mandated drug testing was reasonable and not a constitutional violation because Relford did not submit to the original drug test, and because the County had cause to demand drug testing.  Relford appealed.

The Sixth Circuit held that by falsely reporting he was sick, rather than disclosing his arrest, Relford created a reasonable suspicion that he was a drug user; therefore the requirement to enter into an employee assistance program that mandated unannounced drug testing was not unreasonable.  Specifically, the court ruled that "the nature of Relford's employment misconduct, i.e. his dishonesty to his employer exemplified by his efforts to cover up the reasons for his work absence, when accompanied by his arrest for criminal trespass and possession of drug paraphernalia, reasonably suggests his use of the paraphernalia for the consumption of illegal narcotics." 

Generally, reasonable suspicion is established based on specific, individualized and contemporaneous observation, and of the physical symptoms or manifestations of being under the influence of prohibited substances, such as abnormal conduct or erratic behavior, deterioration in work performance, reports of substance abuse by credible and reliable sources, evidence of adulteration of a substance abuse test and documentation of facts and reasonable inferences based on experience.  Here, the Court concluded the employee's behavior regarding his employer following his arrest on drug-related charges gave rise to a reasonable suspicion of alleged drug use and warranted personnel action.

Employers should continue training their managers and supervisors to recognize substance abuse in the workplace in order to justify reasonable suspicion testing and other actions.  The United States Department of Transportation's drug and alcohol testing regulations, for example, require "reasonable suspicion" determinations to be based on "specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors" of the employee by trained supervisors or managers. These observations should be documented promptly by the persons making the determinations.

©2004 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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