Although an employee clearly refused a drug test under an employer’s drug and alcohol policy, an appellate court in Alabama remanded the case to the trial court because the employer’s policy did not clearly define the testing methods to be utilized, which was an important component of determining the employee’s eligibility for unemployment benefits. Austal USA, LLC v. Ala. Dep’t of Lab., No. CV-15-900034 (Ala. Civ. App. Mar. 18, 2016).

Kenneth Johnson was employed as an electrician by Austal USA, LLC, which builds ships for the U.S. Navy. Pursuant to Austal’s “Drugs and Alcohol Zero Tolerance Policy,” Johnson was selected for a random drug test. The drug policy provided that refusing to test will lead to immediate termination. Johnson’s initial drug screen, conducted on the Company’s premises, was positive for amphetamines and methamphetamines. Austal immediately offered Johnson a second test, provided at the company’s own expense, at an outside medical clinic. Johnson refused and was terminated.

Johnson filed for unemployment benefits, which the Department of Labor initially approved. Austal appealed and the Department of Labor’s decision was affirmed. Austal then filed suit in court and a trial court granted the Department of Labor’s summary judgment motion. The trial court relied on the uncontested fact that Johnson’s failed initial test did not comply with U.S. Department of Transportation regulations. Under Alabama Civil Regulations, “refusal to submit to or cooperate with a blood or urine test after previous warning” may result in disqualification of unemployment compensation if that test is DOT-compliant (or the employer utilizes other reliable testing standards).

On appeal, the Department of Labor argued that there must be a confirmed positive test result in order for an employee to be disqualified from receiving unemployment benefits. Austal argued that Johnson was terminated because he refused the second drug test, and the Court of Civil Appeals noted that Johnson received the employer’s drug policy which warned him that refusing a drug test would lead to termination. Because the record was clear that Johnson failed to cooperate with the second drug test and was aware that it would result in his termination, the trial court erred by granting the Department of Labor’s motion for summary judgment.

However, the Court of Civil Appeals remanded for further litigation regarding the procedure to be followed for the second test. Despite testimony from an Austal manager that second tests are administered pursuant to DOT regulations, the employer’s Policy “[was] completely devoid of an established procedure for the physical administration of a drug test.” Specifically, the policy did not mention that employees would be required to submit to a second test after an initial on-site positive test result, and the policy further did not clarify whether the second test was performed on the original specimen or on a new specimen. This lack of clarity required remand to the trial court to determine whether the refused test complied with DOT standards or was “otherwise reliable.”

This case highlights one of the many reasons why employers should have clear, detailed drug and alcohol testing policies, including a description of the testing methods to be followed. When a testing policy is silent or vague on a particular issue, a court is likely to refer the issue to the finder of fact.