The highest court in West Virginia recently affirmed the dismissal of a lawsuit in which an employee challenged the decision to terminate her employment after she refused to submit to a reasonable suspicion drug test. Layne v. Kanawha County Board of Education, No. 16-0407 (W.VA. Feb. 17, 2017).  The case highlights the right way to conduct reasonable suspicion testing, and illustrates the usefulness of such testing to employers.

Petitioner was a middle school sign language interpreter who was observed behaving erratically by five employees. Specifically, the employees observed the interpreter: (1) waiving her arms about as if she was fighting with someone; (2) chasing pieces of paper across the school’s parking lot; (3) staggering about a classroom; and, (4) leaving a bathroom that smelled like something had been lit on fire.  These observations were reported to the school principal, who then met with the interpreter and saw that she: (1) could not sit still; (2) had glassy eyes; (3) had dry mouth and was rambling; (4) was overly talkative and displayed “exaggerated politeness”; (5) displayed “quick moving” actions and “body contortions; could not hold her pen in her hand”; (6) had messy hair; (7) seemed fixated on items in her bag; and, (8) repeatedly asked the principal whether she appeared to be coherent.  The principal recorded these observations at the time on the school’s Reasonable Observation Checklist Form, consistent with the school’s written policy.  Concluding that the interpreter’s behavior was “drastically different” from her usual demeanor, the principal suspected that the interpreter was impaired and asked her to submit to a drug test.  When the interpreter refused, the consequences (i.e., disciplinary action) were explained and after refusing further, the school suspended the interpreter.  She subsequently was advised that failing to cooperate with the drug testing process is grounds for termination (as set forth in the school’s policy), and was notified that the school would not be renewing her employment contract.

During the litigation that followed, the interpreter argued that her behavior was attributable to several medical conditions, including scoliosis, anxiety and carpal tunnel syndrome. These arguments were rejected in the lower courts and the Supreme Court of Appeals found no error. The principal was familiar with the interpreter’s customary behavior (even with her stated medical conditions) and the principal concluded that her behavior on the date in question was “drastically different and unusual”.  That fact was a sufficient basis for reasonable suspicion drug testing.

Reasonable suspicion drug and alcohol testing can be a useful tool in managing employees who appear to be impaired at work. Employers who conduct such testing should:

• Have a written drug and alcohol testing policy that clearly articulates the types of testing that will be conducted as well as the disciplinary consequences for refusing to test and testing positive;

• Train managers to understand what constitutes reasonable suspicion. These decisions must be made as soon as possible after the observed behavior so that testing can be conducted in a timely manner. Untrained managers may not know what to do or may wait to take any action;

• The key issue, as discussed in the case above, is to be able to articulate why the employee’s behavior is “drastically different” today, in comparison to the way the employee typically behaves;

• Recording the observations at the time the conduct occurs is critical. It is helpful to create reasonable suspicion drug and alcohol test reports and/or checklists to assist with the contemporaneous documentation of the events; and,

• An employee may provide excuses (such as an underlying medical condition) to avoid testing or disciplinary action. The employer still should proceed with the reasonable suspicion drug and alcohol testing if there is sufficient basis to do so.