Court Dismisses Challenge to Positive Marijuana Drug Test

On March 26, 2012, the Minnesota Court of Appeals affirmed the dismissal of an employee’s lawsuit challenging his positive drug test result for marijuana under the Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”). The Court held that the employer’s drug testing laboratory properly concluded that the employee’s drug test was “positive” after confirming a marijuana-metabolite concentration of 10 ng/ml. The decision is significant because it is one of the first court decisions under DATWA to provide guidance for determining whether a particular non-DOT test result is “positive.”

Background:
The facts of the case, Hudalla vs. TSI, Inc., Court File No. A11-927 (Minn. Ct. App. Mar. 26, 2012), were fairly simple. In January 2010, the plaintiff-employee, Steve Hudalla (“Hudalla”), began working for TSI, Inc. (“TSI”) through a temporary employment agency. Two months later, TSI offered Hudalla a permanent position, contingent on successfully completing a drug test. Hudalla submitted to the drug test, which was administered by Summit Orthopedics d/b/a Minnesota Occupational Health (“MOH”). Hudalla’s urine sample was analyzed by MEDTOX Laboratories (“MEDTOX”). MEDTOX is certified by the Substance Abuse Mental Health Services Administration (formerly known as the National Institute on Drug Abuse) (NIDA/SAMHSA), accredited by the College of American Pathologists (“CAP”), and licensed to perform drug testing by the New York State Department of Health (“NYSDH”).

MEDTOX conducted a confirmatory test on the sample, which revealed a marijuana-metabolite concentration of 10 ng/ml. The result exceeded the 2 ng/ml threshold detection level that CAP and NYSDH have verified as a positive marijuana test result at the MEDTOX laboratory. It also exceeded MOH’s more conservative level of 5 ng/ml. (By comparison, however, the result is less than the positive confirmatory test cutoff level (15 ng/ml) under U.S. Department of Transportation (“DOT”) regulations for safety-sensitive transportation workers such as commercial truck drivers and airline pilots.) TSI revoked Hudalla’s job offer.

Holding by the District Court and Minnesota Court of Appeals:
Hudalla sued TSI, alleging that it violated DATWA by revoking his job offer. Hudalla and his attorney argued that the test result of 10 ng/ml was not “positive” as defined by DATWA. The district court disagreed, granted the employer’s motion for summary judgment, and dismissed the case. The district court determined that any MEDTOX test result revealing a marijuana-metabolite concentration at or above 2 ng/ml is positive under DATWA.

The Court of Appeals agreed with the district court. The Court noted that DATWA defines a “positive test result” as “a finding of the presence of drugs, alcohol, or their metabolites in the sample tested in levels at or above the threshold detection levels contained in the standards of one of the programs listed in section 181.953, subdivision 1.” Minn. Stat. § 181.950, subd. 10 (emphasis added). In turn, subdivision 1 identifies SAMHSA/NIDA, CAP, and NYSDH. All three of the programs set threshold detection levels for marijuana, albeit by different methods.

NIDA/SAMHSA publishes a list of recommended detection levels at or above which any certified laboratory may classify a result as positive. For the marijuana metabolite, NIDA/SAMHSA recommends a cutoff level of 15 ng/ml. (This is the same cutoff used by DOT.) In contrast, CAP does not publish a universal list of cutoff levels. Instead, CAP approves threshold detection levels for each laboratory that it accredits based on the accuracy and precision of the laboratory’s testing techniques. Thus, the laboratory is able to define what constitutes a positive test result so long as the detection level is above the threshold detection level approved by CAP for that laboratory. NYSDH takes a similar approach.

In the lawsuit, it was undisputed that both CAP and NYSDH have inspected the MEDTOX laboratory and determined that MEDTOX can accurately detect the presence of marijuana metabolite at a level as low as 2 ng/ml. Accordingly, the Court of Appeals determined that TSI properly considered Hudalla’s MEDTOX test result (10 ng/ml) “positive.” The Court rejected the employee’s argument that because NIDA/SAMHSA is the only program to define a positive test by reference to a universal list of cutoff levels, TSI was bound to observe its marijuana cutoff level of 15 ng/ml. The Court concluded that by allowing Minnesota employers to utilize laboratories accredited by CAP or NYSDH, the Legislature likewise allowed employers to use threshold detection levels that meet the standards of any one of the three drug testing programs.

Lessons for Minnesota Employers:
Although the Hudalla decision was somewhat technical in its holding and lacked the kind of scintillating fact pattern often present in wrongful termination lawsuits, the case has important implications for Minnesota employers conducting drug testing in this state:

Employers should ensure that their drug testing laboratory is properly accredited by NIDA/SAMHSA, CAP, and/or NYSDH (and ideally all three of these bodies).
Employers should carefully review their drug testing policy to determine if numerical cutoff levels for positive test results are specified.
If the employer’s drug testing policy specifies numerical cutoff levels for positive test results, the employer should ensure that the cutoff levels are set above the threshold detection levels applicable to the laboratory that has been selected by the employer to conduct testing. This will usually require the employer to consult with its laboratory.
If the employer’s drug testing policy does not specify numerical cutoff levels for positive test results, the employer should nonetheless ensure that its laboratory is classifying test results as “positive” consistent with the standards set by NIDA/SAMHSA, CAP, and NYSDH.
If the employer’s drug testing policy does not specify numerical cutoff levels for positive test results, the employer should consider whether to amend its drug testing policy to specify such levels. There are advantages and disadvantages to this approach. One advantage is to ensure consistency in classifying test results and thereby minimize potential claims that the employer’s drug testing policy was arbitrary and capricious. Although the Hudalla decision did not address this specific issue, employers should be aware that DATWA provides that employers may not request or require drug or alcohol testing on an “arbitrary and capricious basis.” Minn. Stat. § 181.951, subd. 1(c). The primary disadvantage to this approach is the possibility for inconsistencies and mistakes if the employer’s laboratory does not follow the same cutoff levels that have been specified in the employer’s written policy.
Employers should ensure that the laboratory selected to perform a “confirmatory retest” uses the same cutoff threshold detection levels used by the first laboratory. (By statute, the employee has the right to request a “confirmatory retest” of the sample by a second laboratory any time there is a positive drug or alcohol test under DATWA). Although the Hudalla decision did not address this specific issue, employers should be aware that DATWA provides that “[t]he confirmatory retest must use the same drug or alcohol threshold detection levels as used in the original confirmatory test.” Minn. Stat. § 181.953, subd. 9. This is a little known provision of DATWA that provides traps for the unwary because it is inconsistent with DOT regulations.

Conclusion:
In closing, while the employer in Hudalla prevailed, the result could have easily been different had the employer not selected a properly certified testing laboratory or had the laboratory used a positive cutoff level that contradicted the employer’s policy. Given the complexities of the Minnesota Drug and Alcohol Testing in the Workplace Act, the Hudalla decision should prompt Minnesota employers to seek periodic legal review of their drug and alcohol testing policy.
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About the Author:
Minneapolis employment attorney Craig W. Trepanier practices extensively in the area of employment law and has experience drafting pre-employment screening procedures, criminal background check programs, and drug and alcohol testing programs. Craig may be reached at 612.455.0502 or craig@trepanierlaw.com. Trepanier MacGillis Battina P.A. is a Minneapolis employment law firm located in Minneapolis, Minnesota.

For more information about Minnesota drug and alcohol testing laws, you may wish to read our more in-depth article entitled Minnesota Drug and Alcohol Testing in the Workplace or visit www.minnesotadrugtestinglaw.com.