Legally Speaking

Drug testing in the workplace has become more common. Wisconsin has no statute expressly regulating workplace drug and alcohol policies or testing programs. It is ideal for an employer to have a policy in its handbook that discusses drug testing and the procedures. Employees and employers are then clear about drug testing in the workplace. When an employer has a drug testing policy in its handbook, the courts have consistently upheld terminating an employee who refuses to submit to a drug test.

Many employers are concerned about testing a single employee who is suspected of using or being under the influence of elicit drugs. Many employers believe that drug testing is not allowed unless all employees are tested. The concern is a claim for discrimination. However, employees can be individually tested under the “reasonable individualized suspicion” theory. In other words, if an employer has reasonable information that a specific employee is using or under the influence of elicit drugs, individual drug testing is reasonable. In addition, random or universal drug testing is an acceptable approach, especially if discussed in the employee handbook.

The most important issue regarding drug testing is privacy. The results of any drug testing should be kept confidential and never disclosed without the employee’s written authorization. An employer faces severe penalties for violating the confidentiality of an employee’s medical records. In addition to potential privacy issues, an employer may face claims with respect to discrimination, emotional distress and defamation. Disability discrimination has been alleged by employees who have been terminated as a result of alcohol dependency. The Wisconsin Fair Employment Act and the Americans with Disabilities Act considers alcoholism a disability. The Wisconsin Fair Employment Act may even consider drug addiction a disability. In other words, an employee cannot be terminated solely on the grounds of alcoholism or, possibly, drug addiction. However, an employee can be terminated if they cannot perform their job tasks even if related to alcoholism or drug addiction.

If an employer confirms that an employee has tested positive for drugs, termination is certainly an option. Courts have upheld terminations of employees who fail drug tests because the employee is guilty of misconduct.

Issues related to drug testing and the consequences are extremely complex. Employers and employees who have questions regarding the implementation of drug testing policies or their enforcement should seek legal advice.

This column is based on general principles of Wisconsin law, is for informational purposes only, and is not intended to provide legal advice. Each legal matter must be judged on the merits of its unique circumstances. If you have a legal problem, consult an attorney.

Jon R. Pinkert is an attorney at Pinkert Law Firm LLP with offices in Sturgeon Bay and Sister Bay. 920.743.6505 or 920.854.2616.