Firing a Drug Addict in Prolonged Treatment: A Potential Trap Under Minnesota's Drug Testing Statute

The Minnesota Drug and Alcohol Testing in the Workplace Act, Minn. Stat. §§ 181.950-957 (DATWA), was enacted 21 years ago, but it still holds surprises. The United States District Court for the District of Minnesota held last month that DATWA prohibits discharging an employee who, several months after testing positive for methamphetamine, was still receiving in-patient treatment and unable to return to work.

In Wehlage v. ING Bank, Case No. 07-CV-1852, 2008 WL 4838718 (D. Minn. Nov. 5, 2008), the court granted summary judgment to the plaintiff on liability issues and leave to seek punitive damages at trial.

In his Second Amended Complaint, Wehlage now seeks punitive damages in excess of $2,000,000. A jury trial has been scheduled for February 10, 2009.

Wehlage worked in ING's information technology department. In late 2003 or early 2004, he began using methamphetamine. He sought treatment voluntarily in July 2005, entered an in-patient treatment program in August, successfully completed the program, and was discharged after about a month. The treatment costs were covered under the employer's health insurance plan, and Wehlage's time away from work was covered by vacation and short-term-disability leave. He returned to work on September 12, 2005.

A month later, Wehlage began using methamphetamine again. The employer properly asked Wehlage to submit to a drug test in November, and he tested positive. The employer then offered Wehlage a choice: take a severance package or go into treatment and take an unpaid FMLA leave. Wehlage opted for the latter and began additional treatment.

Wehlage's doctor recommended extensive treatment. He entered treatment in mid-November 2005. Almost five months later, Wehlage was still unable to return to work. By letter dated March 27, 2006, the company discharged him, noting he had exhausted his FMLA leave and thereafter applied for long-term disability leave.

In October 2006—approximately 11 months after Wehlage started his second course of treatment—he finally finished it. He then sued, alleging that ING violated DATWA by firing him.

An Employee Testing Positive on an Employer-Mandated Drug Test Must Be Given Subsequent Treatment Opportunity

The dispute boiled down to whether the employer could fire Wehlage while he was participating in the treatment mandated as a result of the positive drug test. DATWA forbids firing an employee based on a first positive drug test unless the employer "has first given the employee an opportunity to participate in" a treatment program. The court rejected the employer's argument that Wehlage's 2004 treatment—which occurred before Wehlage had tested positive—counted as the prior "opportunity to participate" in treatment.

While acknowledging that the statute is "awkwardly worded," the court concluded that the "opportunity" for treatment must be offered after an employee's first positive drug test, reasoning that:

• First, the court noted that the statute refers to the treatment opportunity as "either a drug or alcohol counseling or rehabilitation program, whichever is more appropriate, as determined by the employer after consultation with a certified chemical use counselor or physician trained in the diagnosis and treatment of chemical dependency…." (emphasis added). The court noted that employers normally would not be able to "determine" the treatment in cases where an employee has voluntarily referred himself for treatment prior to ever being tested. Thus, the court concluded the legislature must have been referring to a treatment opportunity after a positive test result.
• Second, the court noted that DATWA "limits an employer's right to fire an employee based on the employee's first positive result on a drug test requested by the employer" and explained that there is a distinction between (a) the first employer-requested test that comes back positive, and (b) a post-treatment test that shows the treatment failed.
• Third, the court concluded that it was unlikely the legislature intended to allow an employer to fire an employee "provided the employee went through treatment at some point—possibly years earlier—before he tested positive," while prohibiting the discharge of a "less responsible" employee who had never previously sought treatment on his own.

The court concluded that DATWA "contemplates that employees who test positive on an employer-mandated drug test must then be given the opportunity to go to drug treatment."

Noting that DATWA does not contain a time limit on the treatment, the court explained that an employer's hands are not completely tied because DATWA states that the employer must allow the employee to attend a course of treatment "as determined by the employer after consultation with a certified use counselor of a physician trained in the diagnosis and treatment of chemical dependency[.]" Minn. Stat. § 181.953, subd. 10(b)(1) (emphasis added). Moreover, the court noted that DATWA does not limit an employer's ability to fire employees for reasons unrelated to testing positive for drugs.

Potential for Punitive Damages

The court also granted Wehlage's motion to seek punitive damages at trial. Under Minnesota law, punitive damages are generally available "only upon clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others." Minn. Stat. § 549.20, subd. 1(a). Citing the employer's failure to follow the drug-testing policies set forth in its employee handbook, the court allowed Wehlage to amend his complaint to add a claim for punitive damages: "[T]here is no evidence in the record that any of those who were actually or potentially involved in deciding to fire Wehlage gave a moment's thought to DATWA, despite the fact that ING's employee manual contains a section on DATWA."

The court implied that any legal advice that ING sought about Wehlage's discharge might have mitigated Wehlage's ability to seek punitive damages. But, because ING had refused at this stage of the proceedings to waive the attorney-client privilege, the court was unable to assess whether the legal advice would have mitigated the apparent "deliberate disregard" for Wehlage's legal rights. Wehlage will thus be able to ask the jury for an award of punitive damages, in addition to make-whole relief and reinstatement.

Guidance

While a federal district court's decision on a matter of state law is not binding on Minnesota state courts, state and federal trial courts are likely to follow this decision because it is the only decision addressing these issues. Therefore, an employer administering a lawful drug testing policy in Minnesota should always offer an employee who tests positive for the first time an opportunity to seek treatment, even if the employee has previously gone through treatment while an employee of the employer.

Second, the employer should consider availing itself of the statutory opportunity to become involved in "determining" the treatment that continued employment is conditioned upon. Written drug testing policies, which are mandated by DATWA, should reserve to the employer the right to ultimately determine that treatment.

In any case where the employer considers conditioning reinstatement upon completion of a course of treatment that is shorter than what the employee's physician has initially prescribed, the employer will also have to carefully consider the Americans with Disabilities Act (ADA) implications of its decision. For example, if the employee's physician recommends extended treatment that is longer than that "determined" by the employer, do the ADA's reasonable-accommodation provisions require the employer to extend the employee's leave?

Finally, this case serves as a reminder of the critical importance for an employer to follow its established policies and procedures. In all likelihood, had the employer attempted to follow its own employee handbook, Wehlage's request to add a claim for punitive damages might have been denied.

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