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Friday, April 1, 2016

Alabama Drug Testing Blunder Sinks Austal Appeal

By: Thomas Eden

On September 5, 2014, pursuant to Austal's "Drugs and Alcohol Zero Tolerance Policy" Kenneth Johnson, an electrician, was randomly selected for a drug test. Johnson submitted to a drug test ("the preliminary drug test") that was conducted on Austal's premises by a nurse employed by Austal using a rapid screen urine cup. The preliminary drug test was positive, according to court papers.  Austal immediately offered Johnson a follow-up drug test ("the second drug test") that would be administered at the Industrial Medical Clinic. Johnson refused to submit to the second drug test so Austal terminated Johnson's employment that same day.
Johnson subsequently filed a claim for unemployment-compensation benefits with the AL DOL, which was approved. Austal timely appealed that decision to an administrative-hearing officer and, subsequently, to the AL DOL Board of Appeals. Both affirmed the decision to award Johnson unemployment-compensation benefits. Austal then filed an appeal to the Mobile County trial court. The AL DOL filed a motion for a summary judgment, which was granted in favor of Johnson. Austal filed a timely notice of appeal to the Alabama Court of Civil Appeals.

Austal argued that Johnson should be disqualified from receiving unemployment-compensation benefits pursuant to § 25-4-78(3)a., Ala. Code 1975, for “…use of illegal drugs after previous warning or for the refusal to submit to or cooperate with a blood or urine test after previous warning.” However, that section requires that "[a] confirmed positive drug test that is conducted and evaluated according to standards set forth for the conduct and evaluation of such tests by the U.S. Department of Transportation in 49 C.F.R. Part 40…” The Court of Appeals observed, “…to be sure, the drug policy, as drafted, is far from a model of clarity” and “is completely devoid of an established procedure for the physical administration of a drug test.”  Amidst all the policy and refusal notice confusion, the case was sent back to the trial court to make a final determination if Johnson was given notice that he was refusing a DOT type “second drug test.”

Common Sense Counsel: this is your chance as an employer to learn from others' mistakes: 1) only use an Alabama Drug Free Workplace Policy – anything else will not “be a model of clarity” under Alabama Law; 2) if you are going to use a rapid screening device or cup – send all non-negatives to a DOT certified laboratory, using an MRO, or you will lose all your Al UC and WC disqualification cases; 3) train your HR managers on Alabama drug testing laws and Al DOL regulations; 4) have a legally drafted disqualification form ready to hand a refusing employee for signature; and 5) know who to call for counsel before you make your own drug testing blunder.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and drafts drug testing policies in all 50 states and DOT Modes.  He can be contacted at or 334-246-2901. Link to Case on Blog at