A federal court in Rhode Island allowed a former employee to proceed with her lawsuit alleging that the employer violated state law when it terminated her employment after a positive breath alcohol test. Stafford v. CSL Plasma, Inc., Case No. 1:19-cv-00270 (D.R.I. September 14, 2020).

Stafford worked for CSL Plasma for about a year as a phlebotomist. She was required to have a drug and alcohol test as a condition of continued employment. While awaiting the results of Stafford’s urine drug test, the employer learned that the result of her breathalyzer alcohol test showed a blood alcohol content of .094 which is above the legal driving limit of .080. The employer fired Stafford based on the positive alcohol test. Five days later, the employer received the result of Stafford’s drug test, which was positive for marijuana and benzodiazepines.

Stafford filed a complaint alleging that the employer violated the Rhode Island drug testing law. That law does not permit employers to fire employees the first time that they test positive; rather, the employee must be referred to a substance abuse professional for evaluation and treatment.

The Rhode Island drug testing law allows for testing of “urine, blood or other bodily fluid or tissue” as a condition of continued employment. The employer argued that it was permitted to terminate Stafford’s employment because the breath test was not “urine, blood, or other bodily fluid or tissue.” The court disagreed, holding that Stafford would be permitted to prove that a breathalyzer test falls under “other bodily fluid or tissue.” The court also noted that during these pandemic times, the Center for Disease Control has coined the term “spatter,” which are visible drops of liquid or body fluid that are expelled forcibly into the air by coughing, talking, or sneezing and that remain airborne indefinitely. Stafford presumably could hire an expert to testify that the breath specimen includes vapor and that vapor is a bodily fluid.