October 22, 2019

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Connecticut Drug Testing Statutes Do Not Apply To Hair Tests, Court Holds

Connecticut’s drug testing laws apply only to urinalysis drug tests and not to a drug test using hair specimens which led to an employee’s termination, a Connecticut trial court has held.  Schofield v. Loureiro Engineering Associates, Inc., 2015 Conn. Super. LEXIS 1262 (Super. Ct., D. Waterbury, Docket No. CV 146024702S, May 22, 2015).

Plaintiff Ronald Schofield began work for the Company on April 1, 2014. A little over two weeks later he was directed to take a drug test. (The decision is silent as to reason for the test.) The test relied on hair analysis. Schofield was not informed he would be subject to drug testing after he was employed. As a result of the drug testing, he was terminated.

Schofield brought suit against the Company alleging violations of the state drug testing laws. He also claimed, alternatively, that he was fired in violation of public policy.

The employer moved to strike each of Schofield’s claims based on violations of statutory provisions. The court agreed with the employer, based on “a plain reading of the statutes,” and held that “the drug testing statutes in question apply only to urinalysis testing and do not cover an employee who is subjected to other forms of drug testing.” The statute relied upon by Schofield in his first count, Connecticut General Statutes §31-51u, prohibits employers from determining an employee’s eligibility for various personnel actions (including adverse actions) solely on the basis of a positive drug test result unless the employer has given the employee a “urinalysis drug test,” and a positive result was confirmed in a second, independent “urinalysis drug test,” as specified in the statute. The statute relied on by Schofield in his second count, §31-51v, prohibits employers from requiring prospective employees from being required to submit to a “urinalysis drug test” unless the prospective employer is informed in writing at the time of application of the employer’s intent to conduct such a drug test, among other things.  Schofield’s third count relied on §31-51x, which provides that no employer may require an employee to submit to a “urinalysis drug test” unless the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol, as defined in the law. The court relied on a 2008 Superior Court decision that had reached the same conclusion as to §31-51x – specifically, that saliva testing, hair follicle testing, or any other valid non-urinalysis drug tests did not violate the statute. The court in Schofield found no difficulty in extending the rationale to §§31-51u and 31-51v.

The court, nevertheless, found “the logic of plaintiff’s position is readily understood and the seemingly irrational inconsistency which flows from disparate protections [of the statutes] made evident in this opinion are undeniable,” but concluded that any remedy lies with the legislature, not the courts. Having stricken plaintiff’s statutory claims, the court permitted plaintiff to plead a common-law claim of wrongful discharge in violation of public policy.

Jackson Lewis P.C. © 2019

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About this Author

Roger Kaplan employee drug testing attorney, Jackson Lewis Law Firm
Principal

Roger S. Kaplan is a Principal in the Long Island, New York, office of Jackson Lewis P.C. He has worked with many employers to help assure their drug and abuse testing policies and procedures comply with the state and federal laws and to develop effective testing strategies. He has frequently addressed business and professional groups on substance abuse testing issues.

Mr. Kaplan has represented clients and appeared before executive departments and administrative agencies, such as the United States Department of Labor (...

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