Employment: Employers Conducting Drug Testing Beware. Once Again, the Courts are Holding You Accountable


We have written many times before about Oklahoma's Standards for Workplace Drug and Alcohol Testing Act and about the courts' strict adherence to that law. We have reminded (almost pleaded) with you to ensure your policies comply with the law and your testing procedures are spotless. Well, here we go again.

Ms. Creekmore applied for a job with Pomeroy IT Solutions. Pomeroy was staffing a team of IT employees to perform technology services for McKesson Corporation. As part of the agreement between McKesson and Pomeroy, McKesson required that Pomeroy conduct pre-employment drug testing on any person who would perform services at McKesson.

Pomeroy sent Ms. Creekmore for testing. Ms. Creekmore tested positive for Phenobarbital and, for that reason, Pomeroy did not hire her for the McKesson project.

Ms. Creekmore sued, claiming that Phenobarbital is not a substance for which an applicant or employee can be tested under Oklahoma law. According to the court, she is correct.

The law outlines very specific drugs for which testing may occur:

  • Amphetamines, cannabinoids, cocaine, phencyclidine (PCP), hallucinogens, methaqualone, opiates, barbiturates, benzodiazepines, synthetic narcotics, designer drugs, or a metabolite of any of the substances, plus those listed by the Oklahoma State Department of Health regulations
  • Those regulations state that the drugs for which testing may occur include any drug or class of drugs or their metabolites included in Schedule I, II, or III of the Controlled Substances Act, 21 U.S.C. § 801.

On September 16, the Court held it was illegal to test Ms. Creekmore for Phenobarbital because it is a Schedule IV substance.Pomeroy argued that it was just doing what McKesson required and that it had used a licensed laboratory. In other words, Pomeroy argued it wasn't intentionally trying to do anything wrong and should not be held liable. The Court was not impressed.

In holding Pomeroy liable for violating the law, it noted the following:

[Pomeroy] argues that a third party, McKesson, required it to conduct testing for all barbiturates and it relied on a licensed testing facility to conduct the testing properly. Although a violation of the Testing Act occurred, [Pomeroy] argues that it did not know the law and was unaware that terminat[ing Creekmore's] employment for a positive test for a Schedule IV substance violated the Testing Act...  However, ignorance of the law is not a defense to a violation of the Testing Act, and [Pomeroy] may not shift the blame to third parties in an attempt to escape civil liability for unlawfully terminating plaintiff's employment.

Before you consider implementing drug and alcohol testing of Oklahoma employees (not covered by the Department of Transportation regulations), be sure you are familiar, and strictly comply, with all aspects of the Standards for Workplace Drug and Alcohol Testing Act.

Final note. If you are testing non-DOT-covered employees in other states, you must be sure to comply with that state's laws, and don't forget to check any applicable collective bargaining agreements.

By Kristen L. Brightmire, kbrightmire@dsda.com

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Justin B. Munn

Justin B. Munn

Justin represents clients throughout Oklahoma in family law, civil litigation, guardianships, adoptions, estate planning, trust and probate matters. 

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