Be careful what you test for!

published in Oklahoma Employment Law Letter | December 1, 2010

A federal court in Oklahoma recently held that an employer willfully violated Oklahoma’s workplace drug-testing law when it denied employment to an applicant because she tested positive for a drug not among those approved for employment substance-abuse testing under state regulations. As a result, the court entered judgment in favor of the applicant and set the matter for a jury trial on damages. Let’s take a look at what happened.


Pomeroy IT Solutions provides outsourced information technology (IT) services to other companies. Pomeroy was required by one of its customers, a pharmaceutical company, to conduct preemployment drug testing when hiring employees to work for the customer, including testing for amphetamines, barbiturates, cocaine, marijuana, opiates, phencyclidine, benzodiazepines, methadone, and propoxyphene.

Elena Creekmore had worked for the customer until it outsourced its IT needs to Pomeroy. She applied for employment with Pomeroy and was given a conditional offer of employment, subject to passing a drug screen. She was to be assigned to work on a project for her former employer.

However, Creekmore tested positive for phenobarbital, an anticonvulsant medication used to control seizures, to relieve anxiety, and as a sleep aid. Nevertheless, phenobarbital is classified as a barbiturate, and as a result of her positive test for the drug, Pomeroy revoked its conditional offer of employment to Creekmore. No apparent problems, right?

Creekmore filed suit, alleging that revocation of the employment offer for an admittedly positive drug test constituted a willful violation of the Standards for Workplace Drug and Alcohol Testing Act, 40 Okla. Stat. §§ 551-565, because employers aren’t permitted to test for phenobarbital under regulations promulgated by the Oklahoma State Department of Health (OSDH). Pomeroy argued that it was unaware of the state’s regulations and that it was just following its customer’s instructions to drug test employees for barbiturates. In short, the employer argued that it was ignorant of the law and therefore couldn’t have “willfully” violated the Testing Act, and it tried to shift the blame to a third party.

Oklahoma law

The Testing Act provides that “employers who choose to conduct drug or alcohol testing of job applicants or persons employed in this state shall be governed by the provisions of this [A]ct and the rules promulgated pursuant thereto.” The Act also provides a private claim against employers that “willfully” violate the law, but the Oklahoma Legislature neglected to define “willful” in the statute.

The Act defines “drug” to mean “amphetamines, cannabinoids, cocaine, phencyclidine (PCP), hallucinogens, methaqualone, opiates, barbiturates, benzodiazepines, synthetic narcotics, designer drugs or a metabolite of any of the substances listed herein” (emphasis added). Again, no apparent problems.

However, the OSDH is responsible for administering the Testing Act, which includes passing more specific regulations to implement the law. Under the department’s regulations, “[a] licensed testing facility may test for any drug or class of drugs or their metabolites included in Schedules I, II or III of the Controlled Substances Act (21 U.S.C. § 801, et seq.), provided testing for such substances has been approved by the Commissioner of Health.” The regs go on to list the specific barbiturates that have been approved for testing by the commissioner of health, including amobarbital, butalbital, pentobarbital, and secobarbital. Phenobarbital is not listed as being approved for testing; further, it is a Schedule IV substance under the Controlled Substances Act.

Court’s decision

The court began by explaining that Oklahoma’s workplace Testing Act “was not enacted to require or encourage [Oklahoma] employers to conduct drug testing.” Rather, the law simply — and strictly — sets forth the conditions under which testing may be conducted and identifies the exclusive list of substances employers may test for. The court explained that it is required to apply the law strictly — no exceptions.

The court rejected Pomeroy’s argument that it should be excused for being unaware that the regulations don’t permit testing for phenobarbital. The court cited a decision in which the Oklahoma Supreme Court held that “ignorance of the law is no excuse” for a violation of the Testing Act. Because it was undisputed that Pomeroy tested Creekmore for an unapproved substance and then retracted its employment offer to her for testing positive, the court held that the company violated the Testing Act.

The court also held that Pomeroy’s violation was willful, thus enabling Creekmore to sue and recover damages. The court reasoned that “willful” has to be interpreted broadly; otherwise, an employer could avoid liability by purposefully remaining ignorant of the law. According to the court, “[A]t a minimum, [Pomeroy] should have known the requirements of the Testing Act, and its conduct showed deliberate disregard for the law” (emphasis added). The court entered judgment for Creekmore on the issue of liability. Creekmore v. Pomeroy IT Solutions Inc. (Sept. 16, 2010).


Oklahoma employers should review their drug-testing policies to ensure they comply with both the requirements of the Testing Act itself and the OSDH’s regulations. Unfortunately, this issue is bound to become bigger for employers because of the emergence of “designer” drugs, which have the same effects on humans as banned substances and will cause a positive drug-test result, but have a slightly altered molecular structure and a different name than their traditional counterparts. Designer drugs therefore aren’t included on the list of substances for which you may lawfully test in Oklahoma.

You also should demand that your service agents (including third-party administrators and laboratories) comply with the Testing Act and its regulations, and enter into a written agreement with those entities that indemnifies your company against third-party violations. Although the regulation at issue in this case addressed drugs that “[a] licensed testing facility may test for,” the employer was held responsible for the violation. You must understand that third-party mandates will not save you from violations of the Testing Act. You are ultimately responsible for your drug-testing program, even when a laboratory tests for impermissible substances or when impermissible testing is conducted at a customer’s request.