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Tim ReynoldsWSPA and WSRMP

School Law ConferenceOctober 20, 2015

What’s Legal?:Drug Testing Employees

and Students

Today’s Topics1. Update regarding drug laws in

Washington State2. What do drug tests tell us?3. When should we require a

drug test?4. If the results are positive,

what can we do?5. Takeaway points

A changing landscape

Drug Laws in Washington State

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MarijuanaLegalization

• Recreational and medicalmarijuana is now regulatedand taxed by the state

• Medical marijuana system isevolving, becoming moreregulated (see SSSB 5052)

• Attitudes about marijuanaconsumption by adults arechanging both in Washingtonand nationwide

Washington State Medical Use ofMarijuana Act

• “Nothing in this chapter requires anyaccommodation of any on-site medical use ofcannabis in any place of employment, in anyschool bus or on school grounds . . . .” RCW69.51A.060(4)

• “Employers may establish drug-free work policies.Nothing in this chapter requires anaccommodation for the medical use of cannabis ifan employer has a drug-free work place.” RCW69.51A.060(6).

Washington State Medical Use ofMarijuana Act

• Changes beginning on July 1, 2016 (SSSB 5052): Health care professionals may authorize the medical

use of marijuana for qualifying patients under the ageof 18 with terminal or debilitating conditions. “Nothing in this chapter requires any accommodation

of any on-site medical use of marijuana in any place ofemployment, in any school bus or on school grounds .. . . However, a school may permit a minor who meetsthe requirements of section 20 of this act to consumemarijuana on school grounds. Such use must be inaccordance with school policy relating to medicationuse on school grounds.” RCW 69.51A.060(4).

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Drug-freeWorkplace Act41 U.S.C. § 8103

• Recipients of federal grants mustprohibit employees from “theunlawful manufacture, distribution,dispensation, possession, or use of acontrolled substance” in theworkplace.

• Marijuana remains a Schedule 1controlled substance under federallaw.

• This statute conflicts with facilitatingconsumption of marijuana on schoolgrounds, which will be allowedunder state law.

Americans withDisabilities Act42 U.S.C. § 12114

• Does not require employers toaccommodate the use of illegaldrugs listed in the ControlledSubstances Act. 42 U.S.C. § 12114(a);29 C.F.R. § 1630.3(a).

• Employee currently using an illegalcontrolled substance is excludedfrom definition of a “qualifiedindividual with a disability” 29 C.F.R.§ 1630.3(a).

• Does not prohibit employers fromadopting policies and proceduresrelated to drug testing. 42 U.S.C. §12114(c); 29 C.F.R. § 1630.3(c).

What do they tell us?

Drug Tests

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Urine Test• Does not necessarily show current

impairment/under-the-influence;only indicates recent consumption

• For many drugs, a urine test may beused to determine use in the lastfew days

• In the case of marijuana, tests mayreveal the presence of THCmetabolites for a month or moreafter use

• Not used to determineimpairment/under-the-influence fordrivers in Washington

Urine Test:Detection Timefor Various Drugs

Drug Detection Time (approx.)

Marijuana 2-7 days (single use), 30days or more (chronic use)

Cocaine 2-4 days

Methamphetamine 1-2 days

Amphetamine (speed) 1-2 days

MDMA (ecstasy) 1-2 days

Phencyclidine (PCP) 14 days

Heroin, Morphine, Codeine 2 days

Barbiturates 2 days (short acting), 1-3weeks (long acting)

Benzodiazepines (Valium,Xanax)

3 days (one dose), 4-6weeks (extended dosage)

Alcohol 1-12 hours

Urine Test:CommercialDriver’s License

• Tests for the following substances: Marijuana Metabolite Cocaine Metabolite Opiates

• Codeine• Morphine• 6-AM (heroin)

Phencyclidine (PCP) Amphetamines

• Amphetamines (speed)• Methamphetamine• MDMA (ecstasy)• MDA (similar to ecstasy)• MDEA (similar to ecstasy)

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Marijuana:Blood Test

• Tests for active THC in blood• Questions over how well

shows impairment, however isa much better measure than aurine test

• 5 ng/mL standard for drivers inWashington

• Arguably a more invasive testthan urinalysis

Taken from “Marijuana Drug Test Detection Times” by California NORML. Data from B. Law, et al., “Forensic aspects of themetabolism and excretion of cannabinoids following oral ingestion of cannabis resin,” J Pharm. Pharmacol. 36: 289-94 (1984); M.Huestis, J Henningfield, and E. Cone, “Blood Cannabinoids. I. Absorption of THC and Formation of 11-OH-THC and TCHCOOH Duringand After Smoking Marijuana,” Journal of Analytic Toxicology, Vol. 16: 276-82 (1992).

Breathalyzer:Testing forAlcohol

• Much better understanding ofwhat levels indicate impairment

• Alcohol is eliminated from bodyquicker than most other drugs

• Breathalyzer is a much lessinvasive test

• Impairment levels and proximityto consumption is well-established and tested in thecourts

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Drug testing constitutes a search under both state and federal law

Drug Testing Law

FourthAmendment ofU.S. Constitution

“The right of the people to besecure in their persons, houses,papers, and effects, againstunreasonable searches andseizures, shall not be violated,and no warrants shall issue, butupon probable cause, supportedby oath or affirmation, andparticularly describing the placeto be searched, and the personsor things to be seized.”

FourthAmendment:Balancing Test

• Government’s interests (e.g., lawenforcement; employment-related; school/student-related)versus the individual’s interests(privacy, bodily integrity)

• The relative strength of thegovernment’s legitimateinterest/need versus the relativeintrusiveness of the search.Skinner v. Railway LaborExecutives’ Ass’n, 489 U.S. 602,619 (1989).

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Article 1, Section7 of the WAConstitution

• A search without a warrant isunconstitutional unless it fits withinone of the “jealously and carefullydrawn exceptions” to the warrantrequirement. York v. WahkiakumSch. Dist., 163 Wn.2d 297, 316(Wash. 2008).

• Those exceptions are found in thecommon law. They include exigentcircumstances, consent, searchesincident to a valid arrest, items thatare in plain view, Terry investigativestops, administrative searches,border patrols, and prisoners andprobationers. Id. at 315–16.

SuspicionlessTesting GenerallyProhibited

• Preemployment (suspicionless) drugtesting of all applicants forgovernment employment isunconstitutional. Robinson v. City ofSeattle, 102 Wn.App. 795 (2000).

• However, the court allowedpreemployment drug testing for“applicants who will carry firearmsor whose duties may otherwisejeopardize public safety.” Id. at 827.

• Examples: police officers andfirefighters

SuspicionlessTesting: Safety-Sensitive Positions

• Employees performing “safety-sensitive” functions—may be subject tosuspicionless testing. CDL holders must be subjected to

suspicionless pre-employment,random, post-accident and return toduty testing (as well as reasonablesuspicion testing). Other government employees in certain

safety-sensitive positions, including:railroad workers, customs/druginterdiction employees, lawenforcement/weapon-totingemployees—also subject tosuspicionless testing (presumablyincluding pre-employment and randomtesting).

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ReasonableSuspicion Testing:Employees

• Courts have found thatsuspicion-based testing is anappropriate means to insurethe safety and welfare ofstudents.

• A search will be justified whenthere are reasonable groundsfor suspecting that the searchwill uncover evidence that theemployee is guilty of work-related misconduct.

Student DrugTesting

• Individualized, reasonable suspicion that thesearch will turn up evidence the student hasviolated or is violating school rules or the law isgenerally required, at a minimum, under theFourth Amendment. New Jersey v. T.L.O., 469U.S. 325, 341–42 (1985); see also RCW28A.600.230.

• Random, suspicionless drug testing has beenpermitted under the Fourth Amendment as acondition of participation in sports or otherextra-curricular activities. Vernonia Sch. Dist. v.Acton, 515 U.S. 646 (1995); Board of Educ. ofI.S.D. No. 92 of Pattawatomie Cnty. v. Earls, 536U.S. 822 (2002).

• However, the Washington Constitution doesnot allow suspicionless drug testing of studentsparticipating in sports. York v. Wakiakum Sch.Dist., 163 Wn.2d 297, 314–16 (Wash. 2008).

Thinking critically about the circumstances

Should a test be administered?

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Developing Reasonable,Individualized Suspicion

• Training Required by federal law for CDL supervisors on effects

of both alcohol and drugs Recommended for other supervisors (at least HR)

• Individualized suspicion should be based onspecific, contemporaneous, articulableobservations of conduct, behavior, appearance,or odors

• Second, corroborating observation of the personcould be valuable in supporting reasonablesuspicion

Developing Reasonable,Individualized Suspicion

• Signs to look for Slurred speech Erratic behavior Sudden mood swings Body and other odors Bloodshot eyes Paranoia Dilated pupils

• Rely on objective measures and observations• Focus on performance issues• Remember to document observations

How Will theTest Results beUsed?

• What do we hope to establishby testing?

• For employees: will the testuncover evidence of work-related misconduct? What do the district’s policies

prohibit?

• For students: will the testuncover evidence of aviolation of school rules?

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What Kind ofTest: Breath,Urine, or Blood?

• Breath tests are the leastinvasive, but limited

• Urine tests may only indicaterecent use

• Blood tests are much moreinvasive than urine tests Because of invasive nature,

more likely to be consideredunconstitutional without awarrant under both state andfederal law

How to respond to employees and students

Positive Test: Now What?

EmployeeDiscipline: Just orSufficient Cause

• “Just cause” is required for discipline ofmost unionized employees under theirCBAs, both classified and certificated.Requires, in part, the showing of aviolation of a reasonable work-relatedrule or expectation.

• Statutory “sufficient cause” is requiredfor termination of certificatedemployees. RCW 28A.405.300; RCW28A.405.310.

• “Nexus” is required under eitherstandard between the conduct inquestion and the employer’sreasonable interests/expectations.

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Nexus: Off DutyDrug Use

• Employees may be disciplined “foroff-duty conduct if there is a nexusbetween the conduct and theemployer’s legitimate businessinterests.” Elkouri & Elkouri, HowArbitration Works 15-11 (KennethMay ed., 7th ed. 2012).

• Even if off the job misconductinvolves the possession or use ofdrugs, the effect on the employer’sbusiness must be established.Elkouri, supra, at 15-12; WheatlandTube Co., 119 LA 897, 900-01(Franckiewicz, 2004).

Nexus:CertificatedStaff

• Hoagland decision’s requirement that to establishsufficient cause, the teacher’s conduct must beshown to materially and substantially affect theteacher’s performance or effectiveness.Hoagland v. Mount Vernon Sch. Dist., No. 320, 95Wn.2d 424, 428–31 (1981).

• Hoagland factors to determine if conduct affectsteaching performance: The age and maturity of the students The likelihood the teacher’s conduct will have

adversely affected students or other teachers The degree of anticipated adversity The proximity or remoteness in time of the

conduct The extenuating or aggravating circumstances

surrounding the conduct The likelihood that the conduct may be repeated The motives underlying the conduct Whether the discipline will have a chilling effect on

the rights of teachers

DisciplinaryAction forEmployee DrugUse

• Arbitration just cause requirements The rule must be reasonably related

to the orderly, efficient, and safeoperation of the district. There must be substantial evidence or

proof that the employee violated therule. The degree of discipline must be

reasonably related to the seriousnessof the proven offense and theemployee’s record of service.

• Last chance agreement: evaluationand treatment

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UnprofessionalConductWAC 181-87-055

• In context of “unprofessional conduct” that maybe used to disqualify a teacher from his or hercertificate, unprofessional conduct includes: (1) Being under the influence of alcohol or of a

controlled substance, as defined in chapter 69.50RCW, on school premises or at a school-sponsoredactivity involving students, following:

• (a) Notification to the education practitioner by his orher employer of concern regarding alcohol or substanceabuse affecting job performance;

• (b) A recommendation by the employer that theeducation practitioner seek counseling or otherappropriate and available assistance; and

• (c) The education practitioner has had a reasonableopportunity to obtain such assistance.

(2) The possession, use, or consumption on schoolpremises or at a school sponsored activity of aSchedule 1 controlled substance, as defined by thestate board of pharmacy, or a Schedule 2controlled substance, as defined by the stateboard of pharmacy, without a prescriptionauthorizing such use. . . .

UnprofessionalConductWAC 181-87-055

• In context of “unprofessional conduct” that maybe used to disqualify a teacher from his or hercertificate, unprofessional conduct includes: (1) Being under the influence of alcohol, marijuana, or of

a controlled substance, as defined in chapter 69.50 RCW,on school premises or at a school-sponsored activityinvolving students, following:

• (a) Notification to the education practitioner by hisor her employer of concern regarding alcohol orsubstance abuse affecting job performance;

• (b) A recommendation by the employer that theeducation practitioner seek counseling or otherappropriate and available assistance; and

• (c) The education practitioner has had a reasonableopportunity to obtain such assistance. . . .

(4) The possession or marijuana or marijuana-infusedproduct on school premises or at a school sponsoredactivity involving students if such possession violatesWashington law or is contrary to written policy of theschool district or school building.

(5) The use or consumption of marijuana or marijuana-infused product on school premises or at a schoolsponsored activity.

CDL Holders:MandatoryActions forPositive Drug Test

• Employee must be immediately removedfrom performing safety-sensitivefunctions upon receipt of initial report Do not wait for written report or verifying

split specimen test Must also immediately remove if receive

initial report that sample was adulteratedor substituted, or if test is refused

Same standard applies for alcohol result of0.04 or higher

• Employee may not be returned to safety-sensitive position until employeecompletes return-to-duty evaluation,referral, and treatment process

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CDL Holders:Discipline andDischarge

• Must still establish nexus fordiscipline or discharge Drivers occupy safety-sensitive

positions District is immediately impacted

because of the driver’s inability toperform functions of job Federal regulations essentially

prohibit off-duty use

DisciplinaryAction forStudent DrugUse

• Follow student discipline rules Neither short nor long term suspension may

be imposed for first offense unless forexceptional misconduct as stated in districtrules

Emergency expulsion may only be imposed ifthe student poses an immediate andcontinuing danger to other students/staff orsubstantial disruption of the educationalprocess

Expulsion may not be imposed for firstoffense unless there is a good reason tobelieve that other options may fail

• Extracurricular activities may implementpolicy denying participation for a positivetest

• Consider alternatives to exclusion

Takeaway Points: Employees

• Clarify policy if necessary• Prohibition on use away from work may not

be upheld outside of CDL setting• Obtain training for supervisors• Use drug and alcohol testing to address

reasonable suspicion of impairment at work• Do not unduly focus on the results of

urinalysis

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Takeaway Points: Students

• No random, suspicionless testing• Only test if have developed reasonable,

individualized suspicion• Consider whether testing will lead to evidence

that the student violated a school rule• Prohibition on use away from school: possibly

tie to participation in extracurricular activities

Tim ReynoldsWSPA and WSRMP

School Law ConferenceOctober 20, 2015

What’s Legal?:Drug Testing Employees

and Students