Validity of Reasonable Suspicion Determination Without Sufficient Basis

  • By: Andrew David Easler, Esq.
  • Published: Oct, 7 2021
  • Updated: Nov, 4 2023

Can an employee’s voluntary consent to a drug test negate the statutory requirements to establish reasonable suspicion? In Poulos v. Pfizer, Inc. the court considered two issues, the first was whether a drug test administered on an employee was in fact performed with his valid consent.[1] The second question was whether Pfizer, Inc. had established enough reasonable suspicion to require the Plaintiff in this case to submit to a drug test.[2]

In December of 1990, the Plaintiff, Thomas Poulos, was employed by Pfizer, Inc. where he worked as a raw material clerk. The raw material clerk position involved ordering office supplies valued at $50.00 or less. While raw material clerk, Poulos also managed a small coffee fund among the employees.[3] In an effort to maintain a drug-free workplace, Pfizer had developed and maintained an employee assistance program which Poulos had previously voluntarily participated in the year prior.[4] Employee assistance programs are employer-funded programs designed to allow employees who may have a problem with substance abuse to self-identify and access treatment without adverse consequences from the employer. They also play a role in referring employees who test positive in a drug or alcohol test to an appropriate Substance Abuse Professional.

At the end of one of his shifts, Mr. Poulos hid a surge protector, valued at $10.95, in an empty box with the intent to remove it from the facility.[5] A fellow employee observed the behavior and reported Poulos which led to questioning by the security guard, who did not let the plaintiff leave with the item without a permission slip authorized by a supervisor.[6] Knowing that sometimes employees were allowed to remove items from work, Mr. Poulos substituted the surge protector with a worn extension cord and failed to get permission from his supervisor, Feeney, to leave with it.[7] Eventually, the situation escalated, and Poulos admitted to both Finney and another supervisor, Mr. Smith, that he was trying to take a surge protector; Poulos was ordered to surrender his keys and leave work pending an investigation.[8]

Poulos called the next day to return to work and discuss his employment. Upon arrival, a meeting was held between the Poulos, Feeney, and Smith to consider what should be done concerning Poulos’s behavior.[9] In addition to the surge protector incident, other aspects of Poulos’s workplace performance were discussed, such as his borrowing of money from the coffee fund, directly from other employees, as well as some attendance issues.[11]   It was decided that Mr. Poulos’s behavior fell within Pfizer’s definition of aberrant behavior and the decision was made that the plaintiff should submit to a fitness for duty evaluation, which included a drug screening.[12] Pfizer’s policy documents defined “aberrant behavior” to include any bizarre behavioral incident or a number of uncharacteristic behaviors over some period of time such as slurred speech, glassy eyes, unsteady walk, and change in normal behavior pattern, among other observations.

Mr. Poulos agreed to the evaluation, signed a consent form, and was accompanied to the plant medical facility where he was interviewed and asked to sign a second consent form before he provided a urine sample.[13] Poulos returned to work on January 2, 1991 and was informed that he had tested positive for cocaine use.[14] Poulos accepted an offer to enroll in Pfizer’s employee drug assistance program as he had done in the past, but was later terminated on March 1, 1991 after failing a subsequent random drug test.[15]

Following his termination, Mr. Poulos filed suit claiming that his consent to the test was not voluntary, but instead was the result of duress and coercion.[16] Poulos was aware of Pfizer’s drug free workplace policy and testified that he thought he would be fired had he refused the drug test.[17] Although there was no evidence that plaintiff’s prior drug involvement played any part in the decision to order the fitness for duty evaluation, plaintiff was acutely aware that his supervisors knew about his prior drug problem.[18]

In answering whether the drug test administered by Pfizer was performed with Mr. Poulos’s consent, the court looked at the totality of the circumstances to see if the consent was a product of Mr. Poulos’s “free and unconstrained choice, rather than a mere acquiescence in a show of authority . . . Voluntariness can be found from an individual’s words, acts or conduct . . . No one factor is controlling . . . A conclusion about consent necessarily involves an inquiry into the putative consenter’s state of mind.”[19] The court reasoned that the mere fact that an individual is faced with a difficult choice of options which may have exerted pressure on him is not the deliberate or ignorant violation of personal rights that renders apparent consent ineffective.[20] Here, Mr. Poulos’s agreement to participate in the drug tests were voluntary and thus a valid waiver of his right under the Connecticut State statute which indicates that “reasonable suspicion is required before private employers could require an employee to submit to a drug test.”[21] Here, Mr. Poulos never objected to testing and never indicated that he did not wish to participate in the drug test.[22]

The court then considered whether Pfizer had established enough reasonable suspicion in order to require Mr. Poulos to submit to the drug test. Under the Fourth Amendment, the federal government may not require an employee to submit to urinalysis drug testing absent a showing of individualized reasonable suspicion.[23] The same protections afforded to those subject to federally-regulated drug testing programs were designed to apply to employees subject to drug testing programs implemented by private companies under Connecticut law.[24] Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable to show probable cause.[25] Here, Mr. Poulos’s conduct involving the surge protector came to the specific attention of a guard and two supervisors; none of these parties reported any of the necessary criteria other than the incident itself, which, under Pfizer’s rules, would indicate “aberrant behavior” or indicate that the plaintiff was under the influence of drugs.[26] The Court concluded that Pfizer did not establish sufficient reasonable suspicion to require Mr. Poulos to submit to a drug test.[27] Although the statutory requirement for reasonable suspicion was not met in this case, the court went on to say that the plaintiff’s voluntary consent negated the requirement.[28]

What should we take away from this case? We are aware that our government has built-in safeguards for employers/employees through constitutional provisions, state statutes, and local ordinances to protect the public’s rights, even when it comes to drug testing. This case suggests that a company may still be within its rights to order a reasonable suspicion drug test without sufficient reasonable suspicion if the employee voluntarily consents to the test anyway. However, this is an unreported case and is still subject to appellate review, statutory amendment, and cannot be used as precedent. Employers should know what constitutes reasonable suspicion under applicable federal, state, and local law and ensure that their supervisors are appropriately trained in making reasonable suspicion determinations under company policy to prevent liability for employee privacy violations.

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