Employer Testing of Applicant for Substance Not Approved by State is Willful Violation of Oklahoma Law

  • October 19, 2010

A federal court in Oklahoma has held that an employer willfully violated the state’s drug testing law, making it liable for damages, after it denied employment to an applicant for testing positive for a drug that is not among those listed in state regulations as approved for employment substance abuse testing. Creekmore v. Pomeroy IT Solutions, Inc., No. 10-CV-0091, 2010 U.S. Dist. LEXIS 97296 (N.D. Okla. Sept. 16, 2010). 

The Facts

The employer, Pomeroy IT Solutions, was required by one of its customers, a pharmaceutical company, to conduct pre-employment drug testing when hiring employees to work for that customer.  Pomeroy must test employees for amphetamines, barbiturates, cocaine, marijuana, opiates, phencyclidine, benzodiazepines, methadone and propoxyphene.  The plaintiff, Elena Creekmore (who previously worked for the customer), was hired by Pomeroy to work for the customer and was required to submit to a pre-employment drug test.  She tested positive for Phenobarbital, a barbiturate.  As a result, Pomeroy terminated her employment.

Creekmore brought suit.  She alleged that her termination for the positive test result constituted a willful violation of the Standards for Workplace Drug and Alcohol Testing Act, 40 Okla. Stat. §§ 551-565 (“Testing Act”), because Phenobarbital is not a substance that employers are permitted to test for under regulations promulgated by the Oklahoma State Department of Health (“OSDOH”).  Pomeroy argued that it was unaware of the OSDOH regulations and that it was just following its customer’s instructions to drug test employees for barbiturates.

Testing Act

The Testing Act provides that “employers who choose to conduct drug or alcohol testing of job applicants or persons employed in this state shall be governed by the provisions of this act and the rules promulgated pursuant thereto.”  40 Okla. Stat. § 553 (2010). 

It defines “drug” to mean “amphetamines, cannabinoids, cocaine, phencyclidine (PCP), hallucinogens, methaqualone, opiates, barbiturates, benzodiazepines, synthetic narcotics, designer drugs or a metabolite of any of the substances listed herein.”  40 Okla Stat. § 552(6). 

In addition, the OSDOH has promulgated regulations to implement the Testing Act.  Okla. Admin. Code § 310:638-1-1 et seq.  Under the regulation, “[a] licensed testing facility may test for any drug or class of drugs or their metabolites included in Schedules I, II or III of the Controlled Substances Act (21 U.S.C. § 801, et seq.) provided testing for such substances has been approved by the Commissioner of Health.”  Okla. Admin. Code § 310:638-1-5.  It goes on to list the barbiturates that have been approved for testing by the Commissioner of Health:  amobarbital, butalbital, pentobarbital, and secobarbital.  Phenobarbital is not listed as being approved for testing; moreover, it is a Schedule IV substance under the Controlled Substances Act.  21 U.S.C. § 812.

Ignorance is No Excuse

The Court rejected Pomeroy’s argument that it should be excused for being unaware that the regulations do not permit testing for Phenobarbital.  The Court cited the Oklahoma Supreme Court’s decision making clear that “ignorance of the law is no excuse” for a violation of the Testing Act.  Because it was undisputed that Pomeroy tested Creekmore for an unapproved substance, then terminated her employment for testing positive, the Court held that Pomeroy willfully violated the Testing Act. 

The Court stated, “[A]t a minimum, [Pomeroy] should have known the requirements of the Testing Act, and its conduct showed deliberate disregard for the law.”  The Court directed summary judgment for Creekmore on the issue of liability.

Oklahoma employers should review their drug testing policies carefully to ensure that they comply with the requirements of the OSDOH regulations. Furthermore, they should ensure that their service agents (including third-party administrators and laboratories) also comply with those regulations. Although the regulation at issue in Creekmore addressed drugs that “[a] licensed testing facility may test for,” the employer was held responsible.  Employers also should be careful when performing drug testing pursuant to customer requirements, for private third-party mandates will not save employers harmless for violation of the Oklahoma statute, according to the decision; employers must ensure that the customer-required testing does not violate state law.  Employers ultimately are responsible for their drug testing programs, even when the laboratory mistakenly tests for impermissible drugs and even when testing is conducted at a customer’s request.

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If you should have any questions, or if you require assistance with your drug and alcohol testing program, please contact a member of our Drug Testing and Substance Abuse Management practice group.

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