A recent ruling by the Puerto Rico Supreme Court interprets relevant sections of Act 59, known as the “Act to Regulate Controlled Substances Detection Tests in the Private Work Sector”, to clarify that, when subjecting employees to undergo drug testing, hair samples can be used only when the circumstances justify not conducting the drug testing with a urine sample.  The High Court also elucidated as to when additional drug tests are permissible after the result of the first drug test has been deemed inconclusive or invalid. 

In Ortiz v. Holsum of Puerto Rico, Inc., 2014 T.S.P.R. 35 (2014), the employer subjected the employee to a drug test.  The result was positive for cocaine.  The Company allowed the employee to undergo rehabilitation treatment, as required by law, and advised him that if he tested positive on a second occasion, he would be terminated from employment.   

The following year, the employee was once again tested for drugs, but the result of the test was invalid because the laboratory concluded that the sample had been diluted. The employee was then tested again, getting a negative result.  To obtain a more definitive result, the company ordered the employee to submit to a third test during that same year.  This time, the test was conducted on a hair sample, instead of a urine sample.  The result was positive for cocaine.  

Based on this positive result, the Company terminated the employee’s employment. The employee sued and the employer filed a motion for summary judgment arguing that the two positive drug tests constituted “just cause” for termination.  (Puerto Rico law does not recognize the at-will employment doctrine, instead requires that the termination of employment meet at least one “just cause” ground enumerated under the statutes).  

Focusing on the number of drug tests conducted, the lower court noted that the plaintiff submitted to three drug tests in one year, exceeding the two drug tests per year allowed by the law.  If the plaintiff was responsible for the invalid result of the first drug test, the court noted, the employer was allowed to order plaintiff to undergo the third test.  If this could not be established, however, then the company was precluded from subjecting plaintiff to undergo an additional (third) test.  Finding that these issues of fact existed, the lower court denied the employer’s motion for summary judgment.  

On appeal, the Supreme Court of Puerto Rico disagreed with the lower court’s reasoning. Looking at the federal regulations, the High Court distinguished between an adulterated sample and an invalid test result, noting that an invalid test result occurs when, from the sample provided, no positive, negative, adulterated or substituted result may be determined. Thus, the Court ruled that who was responsible for the invalid test result was immaterial since, by definition, it is impossible to know whether an invalid result should be deemed negative, positive, adulterated or substituted.  The Court also ruled that when a drug test result is invalid, the test is canceled and the employer may request a new sample from the employee.  Accordingly, the company could validly perform two drugs tests, after the first one was deemed invalid. 

This notwithstanding, the Supreme Court held that the third drug test conducted was illegal because it was performed on a hair sample, instead of a urine sample.  Act 59 provides that drug testing shall be conducted in urine samples, except in those circumstances where it is not possible to obtain a urine sample. In interpreting this provision, the Court looked to the Mandatory Guidelines for Federal Workplace Drug Testing Program holding that, under Act 59, the “circumstances” that justify not carrying out the drug testing with a urine sample are those related to documented medical conditions, which usually are permanent or prolonged physiological conditions.  The Court further explained that, in this case, the employer failed to demonstrate the extraordinary circumstances justifying the use of a hair sample, instead of testing with a urine sample.  Instead of entering summary judgment in favor of the employee, the Court upheld the denial of the employer’s motion for summary judgment, and remanded the case to the lower court for further proceedings consistent with the Court’s opinion. 

This Supreme Court’s ruling serves as a reminder that the requirements and procedures of the Mandatory Guidelines for Federal Workplace Drug Testing Program should be followed when administering drug tests to employees to prevent any violations of Act 59 and be able to demonstrate the legality of a termination based on a positive drug test result.