By Yvette Farnsworth Baker, Esq., Senior Legal Consultant at Current Consulting Group (CCG)
This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.
While most employers are quick to see the benefits of workplace drug testing, others remain unsure. In addition to a host of benefits, employers should also contemplate that there may exist grave downsides in failing to drug test, namely the dangers of legal negligence. In addition to detecting drug-abusing employees, a workplace drug testing policy can also act to legally shield an employer from liability under state law.
Negligent hiring and respondeat superior
The doctrines of both negligent hiring and respondeat superior apply to employers’ liability for dangerous employees. Respondeat superior is limited to an employee’s acts within the scope of employment. Negligent hiring imposes liability on an employer when an employee commits an intentional tort, most often outside the scope of employment, against a member of the public. Under both doctrines, an employer can be held liable when the employer knew or should have known that the employee might engage in injurious conduct.
The Minnesota case of Ponticas v. K.M.S. explained: “Although an employer will not be held liable for failure to discover information about the employee’s incompetence that could not have been discovered by reasonable investigation, the issue is whether the employer did make a reasonable investigation. The scope of the investigation is directly related to the severity of the risk third parties are subjected to by an incompetent employee.” (Emphasis added).
If an employer is put in a position to defend against a claim of negligence based on failure to drug test, they may have to argue that drug testing went beyond a “reasonable investigation.” With workplace drug testing becoming widely available, practical to implement, and cost-effective, this argument will become increasingly difficult on which to prevail.
In the Ohio case Stephens v. A-Able Rents Co., an employee committed a violent crime against a customer during the course of employment while under the influence of drugs. The employer failed to conduct a drug test or contact the employee’s former employer, either of which would have likely revealed the employee’s drug addiction.
The court was very direct in finding that the employer could be held responsible for the crime. The court stated: “The facts in this case are pristine. Taylor abused drugs, which is criminal conduct in Ohio… With a reasonable amount of care, A-Able Rents could have known of Taylor’s criminal propensity…A-Able Rents should have known of Taylor’s drug abuse…. Consequently, a reasonable jury could have found the failure to inquire into Taylor’s employment history before hiring is causally connected to and may have proximately caused the attack on Marie Stephens.” (Emphasis added).
Legal liability can cost an employer big
As an example of the liability an employer exposes himself to, we can look to the Kentucky case of Allgeier v. MV Transportation Inc. A jury found an employer liable under the doctrine of respondeat superior, as well as negligence in hiring and training, and was ordered to pay almost $5 million in compensatory and punitive damages. In that case, the employer was unaware that an employee was an alcoholic living in a rehabilitation center when she was hired. The employee caused an accident that injured a customer. Although the employer had a post-accident drug policy, it did not test the employee until two and a half hours after the accident, at which time she tested negative.
The plaintiff’s attorney used the employee’s alcoholism, the employee’s job application, and the delay in post-accident testing as part of a successful negligence and respondeat superior argument.
A similar example is found in the California case of DeVillers v. County of San Diego. In 2006, the county of San Diego was ordered by a jury to pay $1.5 million in a wrongful death and negligent hiring case. A county employee with a history of drug abuse and a juvenile court criminal record murdered her husband after relapsing into drug use. The county had failed to conduct a drug test or background check, though its workplace policy called for both.
Both the Allgeier and DeVillers cases not only demonstrate how failure to drug test can cost a company millions of dollars, but also that a lax policy that is not written or implemented correctly will offer little protection in such actions.
State law protection from lawsuits
Implementing a workplace drug testing program can also shield an employer from liability through force of law. Some states include provisions in their workplace drug testing laws that protect employers from lawsuits if they establish a policy in line with state requirements. An example is Arizona. Arizona Revised Statute 23-493.06(A) provides that no cause of action may be established against an employer who has established a policy and initiated a testing program in accordance with the voluntary law. This specifically includes good faith actions based upon positive test results, failure to test, or failure to detect any specific substance.
The Arizona law and others like it in other states can shield an employer from negligent hiring and respondeat superior actions. Other states with similar laws include Alaska, Iowa, Mississippi, Utah, and West Virginia.
Conclusion
While the health and safety of a workplace should always be the top reason to drug test, reticent employers should also consider the liability they risk by failing to drug test. One drug-abusing employee can cost an employer in a huge way, whether acting within or outside the scope of their employment.
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