The West Virginia Supreme Court of Appeals issued its first round of opinions this week. Clerk Perry has summarized the decisions here.
In the first employment decision of the Fall term, the Court upheld the suspension of a city firefighter who refused a reasonable suspicion drug test by offering water in lieu of a urine sample. Legg. v. Felinton, No. 33044 (Oct. 5, 2006) (per curiam).
The City of Huntington received a tip that one of its firefighters had been smoking crack and drinking beer while on duty. The fire chief decided to conduct a reasonable suspicion drug test based on (1) the tip, (2) a two year old charge of driving under the influence, (3) a pattern of sick leave usage, and (4) an alteration in personality of the firefighter which had been observed by individuals who worked with him.
The lab determined the specimen given by the firefighter was water, not urine, and it characterized the sample as "substituted-refusal to test." The firefighter was then suspended without pay and without a pre-suspension hearing.
Several months later, a hearing board determined that the chief lacked reasonable suspicion to require a drug test. The decision was appealed to the Firemen's Civil Service Commission, which reversed, finding reasonable suspicion and exigent circumstances justifying the immediate suspension without pay pending termination. That decision was appealed to the circuit court, which reversed, holding that reasonable suspicion and exigent circumstances were lacking. On appeal, the West Virginia Supreme Court of Appeals then reversed the circuit court, holding that the Firemen's Civil Service Commission decision was correct on both points.
The holding on the issue of reasonable suspicion is noteworthy because it finds that a reasonable suspicion test did not need to be based on evidence and observations of the employee on the day of testing. "The circuit court relied upon the fact that no symptoms commonly attributed to the use of controlled substances were observed on the day of the drug testing. ... A review of the policy, however, reveals no requirement that the behaviors, symptoms, or actions justifying testing actually occur on the day of testing. Thus, the circuit court introduced and relied upon a requirement which does not exist."
The "reasonable suspicion" language of the City's policy appears similar to the reasonable suspicion standard announced in the seminal workplace drug testing case of Twigg v. Hercules Corp., 185 W.Va. 155, 406 S.E.2d 52 (1990). Huntington's policy was important in this case because it gave the firefighter a right to which he probably was not entitled under Twigg. Twigg held that reasonable suspicion for drug testing is not necessarily required "while an employee's job responsibility involves public safety or the safety of others." Syl. Pt. 2, Twigg. Thus, any requirement of reasonable suspicion in this case would have been policy-based.
It appears the Court is comfortable that the "reasonable suspicion" standard can be met by evidence of drug use gathered over a period of time, and not simply on the day of testing. In this case, four days had passed between the tip and the drug test. Even so, the court found that the employer had reasonable suspicion of drug use.
The Court went on to uphold the Firemen's Commission's ruling that that "exigent circumstances" existed to justify the punitive action against the firefighter before a hearing because "the safety of other firefighters, as well as citizens of the City of Huntington, would be endangered by the continued employment of the firefighter."