Drug-Testing Court Decisions Overwhelmingly Favor Employers, Institute for a Drug-Free Workplace Survey Reports

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All "Medical Marijuana" Drug-Testing Challenges Have Failed

Employer drug-testing programs in the workplace are both very common and very effective.

During the last 18 months, the vast majority of drug-testing legal cases were decided in favor of employers and against employees, according to a national survey of state and federal case law recently released by the Institute for a Drug-Free Workplace.

In 49 out of 61 of the most recent decisions (80 percent of cases), employers won on legal challenges to drug testing, based on decisions analyzed in the newly published "Guide to State and Federal Drug-Testing Laws, 16th Ed. Supplement."

The employer win-rate in court on drug-testing cases is even higher when “non-statutory cases” (i.e., workers’ compensation and unemployment compensation cases) are eliminated from the equation – employers won 91 percent of the legal challenges by employees and/or job applicants to drug testing.

This 91-percent win rate for employers is a significant increase over the 78-percent employer win rate in the previous 444 court decisions analyzed in the "Guide to State and Federal Drug-Testing Laws" by the Institute for a Drug-Free Workplace.

“In a balancing test between the employee and public safety and health interests of drug-free workplaces, and the privacy rights of those who engage in illicit drug use, there is no contest,” said Mark A. de Bernardo, Executive Director of the Institute for a Drug-Free Workplace and a Principal at Jackson Lewis, an 800-lawyer management-side national employment law firm. “Employers are winning, and they’re winning consistently, and there are very, very few employer defeats when the issues are decided on the merits.”

Most of the employer losses are on corollary issues to drug testing (such as breach of contract), procedural issues (such as an untimely filing), or collective-bargaining issues, according to Mr. de Bernardo. Workers’ compensation and unemployment compensation cases also factor into the totals, although employers win most of those as well.

“There is not a lot of sympathy by judges, juries, and arbitrators for drug abusers,” said Mr. de Bernardo. “Employer drug-testing programs in the workplace are both very common and very effective, and employers are increasingly doing drug testing the right way, and the right way not only means effective deterrence and detection, it also means legally invulnerable.”

Employers 9-0 on “Medical-Marijuana” Cases
“Employers also are undefeated on legal challenges to drug testing by employees and job applicants in states with liberalized marijuana laws,” noted Mr. de Bernardo. “In every single case challenging drug testing where the plaintiff claims a legalized 'medical-marijuana' defense, that defense has failed. Employers can and do simply follow federal law on marijuana, and marijuana is illegal under the Controlled Substances Act.”

Employers have won in “medical-marijuana” legal challenges in California (2), Oregon (3), Washington, Michigan, Montana, and Colorado.

For more information, visit http://www.drugfreeworkplace.org. To order a copy of the two-volume, 1600-page Guide to State and Federal Drug-Testing Laws, 16th Edition and/or its Supplement, please visit http://store.drugfreeworkplace.org/stateguide.aspx

To sign up for advocacy information on substance-abuse prevention in the workplace, send an e-mail to institute(at)drugfreeworkplace.org with the subject line “Substance-Abuse-Prevention News.”

The Guide to State and Federal Drug-Testing Laws, currently in its 16th Edition, is a digest of more than 500 federal and state court decisions on workplace drug testing and substance-abuse prevention, and all related state and local statutes and regulations. It provides employers with an in-depth analysis of state-by-state laws, and helps ensure compliance with state and federal laws in those areas. It includes analyses of state laws that restrict random drug testing, on-site testing, and hair testing. Drug-free workplace requirements for federal contractors and grantees are included, as are relevant DOT regulations and ADA and FMLA requirements. Summaries of related workers’ and unemployment compensation statutes and cases also are included, as are updated sections on state “medical” and “recreational” marijuana laws.

About the Institute for a Drug-Free Workplace
Founded in 1989, the Institute for a Drug-Free Workplace is a national coalition of major employers and employer organizations dedicated to serving the common interests of employers and employees in promoting substance-abuse-free workplaces.

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