On May 29, 2020, the Rhode Island Supreme Court affirmed a trial court's dismissal of a lawsuit alleging a violation of the Rhode Island drug testing statute brought against an employer that terminated an employee for refusing to submit to a reasonable grounds drug test. Although there were multiple possible explanations for the employee's unusual behavior, the court held that the employer nonetheless could meet the reasonable grounds standard applicable under the state's drug testing statute. According to Rhode Island's highest court, "[t]he employee's behavior does not need to be such that it could lead to only a conclusion that he or she is under the influence of a controlled substance" (emphasis added).

Background Facts

The employer employed the plaintiff as a delivery driver.¹ In 2017, the plaintiff, a U.S. Army veteran, began using medical marijuana lawfully under Rhode Island's medical marijuana law. Before the incident at issue, the plaintiff had not disclosed such use to the employer.

On March 5, 2018, the plaintiff alleged that he sustained a work-related injury while completing a delivery. When the plaintiff reported his injury to his supervisors, they suspected he might be impaired because he was stuttering, swearing excessively, "jumping all over the place," confused, had difficulty describing his injuries, did not speak in complete sentences, was staggering, bending over, and using profanity, among other things. When the plaintiff was referred for a drug test, he said he was "fine" and then "got very agitated." On the way to the collection facility, the plaintiff disclosed for the first time that he used medical marijuana and he would probably test positive for marijuana. Once he arrived at the collection facility, the plaintiff refused to submit to a drug test and, based on that refusal, which was a violation of the company's drug testing policy, the employer terminated the plaintiff's employment. Note that the plaintiff agreed to submit to an alcohol test, which came back as negative.

The Trial Court Dismissed Plaintiff's Claims, Finding Lawful Referral for Drug Testing

The plaintiff filed suit against his employer and alleged it violated Rhode Island's drug testing statute by requiring him to take a drug test without "reasonable grounds." Rhode Island's workplace drug testing law permits testing when the "employer has reasonable grounds to believe, based on specific aspects of the employee's job performance and specific contemporaneous documented observations, concerning the employee's appearance, behavior or speech that the employee may be under the influence of a controlled substance, which may be impairing his or her ability to perform his or her job."

The plaintiff testified he did not use marijuana "on the clock or on the job" and was never "under the effects of marijuana" during work. In contrast, the plaintiff's supervisors testified that he was unable to clearly articulate what had occurred when he was injured; when they talked to him, he was bent over, repeatedly swearing, staggering, and saying he was going to "puke." Based on his supervisors' contemporaneous observations, the employer referred the plaintiff for a drug test. Following a bench trial, the court concluded that the employer was entitled to require the plaintiff to undergo a drug test on these facts and act based on his refusal, and the plaintiff's termination did not violate Rhode Island's drug testing statute.

Rhode Island's Highest Court Rules Neither Actual Knowledge, Nor Specific Symptoms, That An Employee Is Under the Influence of Drugs Is Required for Reasonable Grounds Testing Referral

On appeal, the plaintiff argued there was no evidence he was under the influence of drugs at the time of test-referral.² According to the plaintiff, the employer characterized his behavior as "odd," but there was no evidence of drug use, i.e., that he stumbled, slurred words or walked unsteadily, further contending that only those symptoms support referral for a reasonable grounds drug test under the Rhode Island workplace testing law.

Rhode Island's Supreme Court upheld the dismissal of the plaintiff's claim, rejecting the plaintiff's argument that because his behavior "could" have been related to pain he was experiencing, there was no basis for drug testing. According to the court, "[t]he employee's behavior does not need to be such that it could lead to only a conclusion that he or she is under the influence of a controlled substance." Instead, "[t]he [Rhode Island workplace testing law] clearly and unambiguously does not require actual knowledge that the employee is definitely under the influence, nor that the employee manifest the specific symptoms usually associated with being under the influence; the [law] requires only that there be reasonable grounds." The court added that the plaintiff's supervisors were "not medical professionals, and neither of them should have been expected to distinguish between symptoms of pain and indicia of being under the influence." The court ultimately concluded that there were ample facts supporting the conclusion that reasonable grounds existed to refer the plaintiff for a drug test, and that the trial court did not abuse its discretion when concluding that the employer had not violated Rhode Island's drug testing statute by terminating the employee's employment for refusal to submit to testing.

Employer Takeaways

This decision sets forth an employer-friendly standard to apply when deciding whether there exists reasonable grounds to require an employee to take a drug test in Rhode Island. The court explicitly rejected the employee's argument that reasonable grounds requires that the employee demonstrate conduct that could only be attributed to drug use. Employers are not required to assess whether the employee's conduct could be due to a reason other than drug abuse. Instead, employers must have only reasonable grounds to believe that the employee's conduct was due to drug abuse to require the employee to take a drug test. Here, the plaintiff's refusal to even submit to a test when there were reasonable grounds for test-referral supported the employer's decision to terminate his employment pursuant to its policy.

It bears emphasis that the court did not decide what the employer's obligations would have been under Rhode Island law had the plaintiff submitted to a drug test and if the test had been positive for marijuana. Rather, the court merely decided that there were sufficient articulable symptoms that the employee was working under the influence of drugs, when there were potential alternative explanations, and was entitled to act based on the refusal to test without violating the Rhode Island workplace testing law. In this context, it is essential that, in order to best defend testing referrals on reasonable grounds under Rhode Island's workplace testing law, employers take steps to train supervisors in making reasonable grounds testing determinations and following particular protocols and procedures, e.g., recognizing and documenting signs and symptoms an employee is working under the influence of controlled substances that may be impairing his or her ability to perform his or her job. Conducting such training and preparing such documentation can be invaluable if, and when, these issues are litigated.

Posted: June 30, 2020

¹ The plaintiff was not subject to US-DOT drug and alcohol testing; rather the testing in issue was a non-DOT test subject to Rhode Island's workplace testing law.

² The issue of whether the Rhode Island workplace testing law was preempted by federal law was not before the court.