By Yvette Farnsworth Baker, Esq. at Current Consulting Group (CCG)
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Comprehensive workplace drug testing policies require knowledge of not just federal law, not just state law, but case law as well. Case law is easy to overlook and can be difficult to research, but ignoring case law can be as detrimental as ignoring legislative law. Case law is law created by judicial decisions. This article will examine what case law is and will highlight important case law relevant to drug testing throughout the country.
What is Case Law and How is it Created
One of the major roles of the judicial branch of government in America is to interpret laws. In doing so, courts determine the meaning of laws and apply the laws to specific cases. When interpreting the laws, courts of appeal end up also creating law, which is called case law.
Case law is a body of law that is created by judges through their decisions in legal cases. The principle of stare decisis, which means “the decision stands,” is the foundation of case law. This principle holds that judges are bound to follow the decisions of higher courts in previous cases that have similar facts and legal issues. This helps to ensure that the law is applied fairly and consistently. Higher courts issue their decisions in written decisions, called “opinions,” which can then be researched by lawyers, judges, and the public in order to understand the state of the law. These written opinions constitute case law. Despite being called “opinions,” case law carries the full force of the law.
Case law almost always originates from a lawsuit or criminal case where the interpretation of the law is in dispute. Parties will litigate the issue in the trial court, and then the losing party appeals the decision of the trial court to a higher court. The higher court issues a written opinion that explains the relevant facts, the law, and then their ruling on the application of the law to the facts. The case is known by the names of the two parties to the dispute; for example, if John Smith sues Susan Jones and appeals the decision to a higher court, the case is called Smith v. Jones.
Case law can be difficult to research for non-lawyers. Opinions are published as they are issued and are not organized by subject matter. In one week a court might issue opinions related to a burglary statute, bankruptcy proceedings, a child custody dispute, and state workplace drug testing law. Multiply that times the number of appellate courts throughout the country issuing opinions, both state and federal, and the amount of case law created each week is incredibly voluminous. Attorneys usually pay for research platforms such as LexisNexis or Westlaw in order to conduct case law research. The public can do keyword searches using free sites such as FindLaw or Justia.
An Example: Case Law in California Regarding Random Testing
The state of California does not have a state drug testing law, but knowledge of California case law is vital to workplace drug testing in the state. The California state constitution enshrines a right to privacy as a constitutional right of people in the state. There is a large body of case law in California that interprets this right of privacy, including case law that applies the right of privacy to drug testing policies.
For example, the case Kraslawsky v. Upper Deck Co. is an opinion from the California Court of Appeals 4th District that examines the constitutionality of a company’s reasonable cause drug testing policy and the way it was applied to an employee, Kraslawsky, that led to the termination of her employment. In the Kraslawsky case, the Court of Appeals applied and interpreted the California state constitutional right to privacy as it relates to workplace drug testing.
Kraslawsky sued her former employer, Upper Deck Co., claiming that she was ordered to take a drug test without reasonable suspicion that she was impaired by drugs or alcohol, which amounted to a random drug test. The court held that Upper Deck Co. was not permitted to conduct random drug testing of employees, and that random testing in these circumstances would violate the state’s constitutional right to privacy. The court stated:
“While a majority of the Supreme Court has not yet expressly reached the issue of random drug testing under the California Constitution, in the Fourth Amendment context the courts generally hold a drug test of an existing employee without any individualized suspicion is unreasonable, unless the employee is in a safety or security sensitive position.”
The case was sent back to the trial court to allow a judge or jury to hear evidence on whether there was sufficient evidence to support reasonable suspicion that Kraslawsky was impaired by drugs or alcohol when she was ordered to take a drug test.
This case highlights the importance of case law in understanding workplace drug testing laws. If one looks solely to California’s legislation for guidance on a legally defensible drug testing policy, it would appear that random testing for most illegal substances is permissible across the board. Only by delving into case law can one find the restrictions on random testing.
An Example: Case Law in Massachusetts Regarding Medical Marijuana
Massachusetts state law permits both medical and recreational marijuana use within the state, but the marijuana laws do not expressly affect the ability of employers to enact and enforce workplace policies restricting marijuana use by employees, whether inside or outside the workplace. However, there is important state case law that prohibits discrimination by employers based on a medical marijuana patient’s use of medical marijuana to treat a disability.
The case Barbuto v. Advantage Sale and Marketing, LLC interpreted the state’s disability law as well as the state’s medical marijuana law and applied both to workplace drug testing policies that restricted marijuana use by employees. Christine Barbuto sued her employer after she was terminated from her job after testing positive for marijuana. Barbuto informed her employer that she had a disability and that she legally used medical marijuana to treat her disability. The court held that she had the right to request an accommodation for her disability, and that use of medical marijuana could potentially be a reasonable accommodation that the employer was obligated to provide. The court sent the case back to the trial court to take evidence on whether medical marijuana use was a reasonable accommodation that the employer was required to provide or whether exceptions existed for the employer. The court did hold that medical marijuana use was not a per se unreasonable disability accommodation.
It is very important to follow case law with regards to marijuana use and the workplace. Several states have critical case law that interprets state medical marijuana laws and how they affect workplace drug testing policies. The Barbuto case was an important example of how case law can dictate the rights of medical marijuana users in the workplace, even when the state’s legislative marijuana laws are silent on the issue.
It is vital to understand both legislative law and case law in order to understand the full scope of workplace drug testing laws. Case law can help to clarify the meaning of legislative law, but case law can also develop new legal principles. It is only through understanding both types of law that a person can understand the complete picture of the state laws regarding workplace drug testing.
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