- August 22, 2020
- Posted by: Andrew Easler
- Category: news, Reasonable Suspicion
Reasonable suspicion is one of several reasons an employer may rely on to require employees to submit to a drug or alcohol test. But what does having “reasonable suspicion” really mean when applying this concept in a drug-free workplace policy? Depending on the position held or the state in which the employer resides, reasonable suspicion can be implemented in a variety of different ways. The federal government has set standards for reasonable suspicion drug tests based on the federal agency the employee is regulated by. Agencies such as the Federal Motor Carrier Administration, the Federal Railroad Administration, the Federal Aviation Administration, and the Federal Transit Administration define reasonable suspicion or reasonable cause as testing based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the employee. This means a trained supervisor must be able to document and provide specific facts regarding observations that led to a reasonable belief that the employee in question was under the influence. These standards created by federal regulation and federal courts have led states to follow a similar path. For example, Alabama adopted a reasonable suspicion standard mirroring the federal rules. Alabama’s reasonable suspicion guidelines state that an employer may perform reasonable suspicion testing if it draws from specific, objective and articulate facts and reasonable inferences drawn from those facts that the employee was under the influence. Additional states have followed a similar standard such as Kentucky, Minnesota, Mississippi, and more. Some states, like Montana, reference the federal rules on this subject.
Federal Law in Action
In applying this standard, the following cases analyzed what is considered “sufficient” for reasonable suspicion determinations. For example, in Coppinger v. Metro-N. Commuter R.R., the plaintiff’s supervisor found the plaintiff sitting at a table with cups filled with alcoholic beverages in a locker room with several other employees. The supervisor asserted that the employee exhibited signs of intoxication. The court held that if the employer could establish that the employee indeed exhibited signs of intoxication the reasonable suspicion test would be justifiable. In another case, the employer followed the rule promulgated under the United States Department of Transportation regulations. In Williams v. United Parcel Serv., Inc., the employee was discharged for failing a reasonable suspicion test. The employee tested in Williams was a truck driver for UPS who traveled down an embankment and overturned the truck he was driving. A couple of hours later, two mangers arrived at the scene, observed that the employee had red eyes, and requested a reasonable suspicion test. The employee disputed the reasonable suspicion determination based on: (1) lack of knowledge by the managers; (2) UPS’s “red-eyes” observation was not contemporaneous with the accident; and (3) other procedural grounds. The court held that under federal regulations, actual knowledge was not required and that the rule only requires that the observation be made during the time the driver is manifesting physical symptoms potentially related to controlled substance use.
Comparing State Law
The West Virginia reasonable suspicion standard allows employers to order a drug or alcohol test based on a reasonable, good faith, objective suspicion that the employee was using drugs. This standard requires the employer to have an honest suspicion based on objective facts. This standard is broader than the federal regulations because it does not explicitly require specific, contemporaneous, articulable observations on the employees appearance, behavior, speech, or body odors. The employer has appears to have more discretion to determine what suspicion can be based on as long as it is made with reasonably good faith belief.
Another standard used under state law is probable cause. Maine uses this standard which allows reasonable suspicion testing as long as the employer has “a reasonable ground for belief in” certain facts that would make the employer believe that the employee may be under the influence of a substance. However, the standard does not allow probable cause determinations to be made on the basis of anonymous tips, a single work-related accident, or facts suggesting the employee possessed or used a substance while off company property and off duty.
Some states define “reasonable suspicion” as an employer having “reasonable grounds to believe that the employee is under the influence. . .” In Lovvorn v. Chattanooga, the court explained that reasonable grounds “must be an individualized suspicion . . . and linked in some way with objective facts as opposed to an inarticulate hunch.”
Not every state implements guidelines for reasonable suspicion testing. Some states, like Georgia, Nevada, and Ohio, do not mention a reasonable suspicion standard in their statutes at all. The absence of a defined standard does not, however, give employers free reign on determinations to test. Employers should use principles common across the nation including rational inferences of individualized suspicion based on articulable observations of the employee. Reasonable Suspicion training for supervisors aids employers in understanding and supporting reasonable suspicion determinations. .
Although many of these standards appear similar and, given the same set of observations, the result may often be the same, understanding the nuances in how each reasonable suspicion standard operates is necessary to avoid unnecessary safety risks on one hand and challenges to testing determinations on the other.
Reasonable suspicion testing is a useful tool when an employer believes an employee may be under the influence of drugs or alcohol in the workplace. However, as useful as it may be, some conditions need to be met before requesting an employee to submit to this type of testing. Depending on your jurisdiction or line of business the reasonable suspicion standard can vary significantly. To ensure that these regulations are met training supervisors and employees on how to recognize suspicious activity is key.
 49 C.F.R. § 382.307(a) (2020); 49 C.F.R. § 219.301(a) (2020).  Ala. Code § 25-5-331(12) (West 2020).  See, e.g., 803 Ky. Admin. Regs. § 25:280 (2020) (providing a standard based on “. . . specific objective and articulable facts and reasonable inferences drawn from those facts.”); Minn. Stat. Ann. § 181.950 (West 2020) (defining “Reasonable suspicion” as “a basis for forming a belief based on specific facts and rational inferences drawn from those facts”); Miss. Code. Ann. § 71-7-1 (West 2020)(providing a justifiable reason to test based on the inference that “. . .an employee is using or has used drugs in violation of the employer’s policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts. . .”).  Mont. Code Ann. § 39-2-208 (West 2020) (referencing 49 C.F.R. § 382.603 (2020)).  Coppinger v. Metro-N. Commuter R.R., 861 F.2d 33, 36 (2d Cir. 1988).  Id.  Id. (referencing on the holding in Ybarra v. Illinois, 444 U.S. 85, 90-91, (1979)).  See, Williams v. United Parcel Serv., Inc., CIV-06-210-C, 2006 WL 2472896, at *4 (W.D. Okla. Aug. 23, 2006); see also, “Williams v. UPS, a Folly of Preemption in Reasonable Suspicion Testing”.  Id.  Id. Williams v. United Parcel Serv., Inc., CIV-06-210-C, 2006 WL 2472896, at *3 (W.D. Okla. Aug. 23, 2006).  Id. at 4  W. Va. Code Ann. § 23-4-2(1) (West 2020).  Me. Rev. Stat. tit. 26, § 682(6) (2020).  Id.  See, e.g., Or. Rev. Stat. Ann. § 659A.300 (West 2020) (defining Reasonable grounds- If the employer has reasonable grounds to believe that the individual is under the influence) 28 R.I. Gen. Laws Ann. § 28-6.5-1 (West)(a)(1)( The employer has reasonable grounds to believe based on specific aspects of the employee’s job performance and specific contemporaneous documented observations, concerning the employee’s appearance, behavior or speech that the employee may be under the influence of a controlled substance).  Lovvorn v. Chattanooga, 647 F. Supp. 875, 882 (E.D. Tenn. 1986) (finding that City lacked reasonable suspicion when it had no individualized belief based on articulable facts to order tests, relying in part based on the Supreme Court holding in New Jersey v. T.L.O., 469 U.S. 325 (1985)).  See https://drugtestingcourses.com/reasonable-suspicion-training/