Few areas of employer investigation cause as much concern to both employees and civil liberty groups as the increasing tendency on the part of employers to insist upon often invasive drug testing of employees and applicants for employment.

The employers rightfully argue that the safety of the public and coworkers may depend on the alertness of fellow employees. The employers rightfully point out that employers will be liable if an employee under the influence of narcotics or alcohol injures a third party. The employers rightfully point out that violators of the law, which many addicts may be, can be barred from employment by any rational employer.

But the idea of the invasion of one’s person and privacy by an employer is deeply upsetting to many Americans and the tendency has been in some states to limit the type and extent of drug testing in the workplace. As will be seen, some states such as California have recently found the courts even more restrictive than the legislature in viewing appropriate drug testing in the work place.

 

THE FEDERAL APPROACH

Historically, the drug-testing movement began in 1986, when former President Ronald Reagan signed Executive Order 12564, which imposed upon federal employees the requirement to refrain from using illegal drugs, on or off-duty, as a condition of federal employment. Two years later, Congress passed the Drug-Free Workplace Act of 1988. That led to the creation of Mandatory Guidelines for Federal Workplace Drug Testing Programs (Section 503 of Public Law 100-71). The mandatory guidelines apply to executive agencies of the federal government, the uniformed services (excepting certain members of the armed forces), and contractors or service providers under contract with the federal government (excepting the postal service and employing units in the judicial and legislative branches).

Although the Act only applies to federal employees, many state and local governments followed suit and adopted similar programs under state laws and drug-free workplace programs.

The United States Constitution does not prohibit drug testing of employees. But three constitutional issues have arisen as to drug testing.

First, in the U.S. Supreme Court case of Treasury Employees v. Von Raab, 489 U.S. 656 (1989), the court ruled that requiring employees to produce urine samples constituted a “search” within the meaning of the Fourth Amendment to the U.S. Constitution which prohibits the government from conducting unreasonable searches and seizures of citizens and their property. Therefore, for any governmental employer entity, all such testing must meet the “reasonableness” requirement of the Fourth Amendment. The Court also ruled that positive test results could not be used in any subsequent criminal prosecutions without the employee’s consent.

The second major constitutional issue in employee drug testing involves the Fifth Amendment prohibition against the government forcing a citizen to incriminate him or herself. This law, unlike the Fourth Amendment, was made applicable to the states by the Fourteenth Amendment, which prohibits denial of life, liberty, or property without “due process of law.” Since the majority of private-sector employees in the United States (excepting mostly union employees) are considered “at-will employees,” an employer need not articulate a reason for termination of employment. However, under certain circumstances, the denial of employment or the denial of continued employment based on drug test results may invoke “due process” considerations, such as the validity of the test results, the employee’s right to respond, or any required notice to an employee.

Thirdly, under the same constitutional provisions, persons have a fundamental right to privacy of their person and property. Drug testing, although in itself deemed legal, may be subject to constitutional challenge if testing results are indiscriminately divulged, if procedures for obtaining personal specimens do not respect the privacy rights of the person, or if testing is unnecessarily or excessively imposed.
Typical state and federal drug-free work place programs include the following:

  • Both employees and applicants may be tested.
  • Tests may be conducted pre-employment, “upon reasonable suspicion” or “for cause,” at random, routinely, and/or post treatment or rehabilitation. Random testing involves unannounced, “suspicion-less,” and/or non-routine testing that may be indiscriminately applied to some, but not all, employees.
  • Basic tests screen for amphetamines (speed, meth, ecstasy, crank, etc.), cannabinoids (marijuana, hashish), cocaine (coke or crack), opiates (heroin, morphine, opium, codeine), or phencyclidine (PCP).
  • Extended tests might screen for barbiturates, benzodiazepines, ethanol, hallucinogens, inhalants, or anabolic steroids.
  • Tests may involve urine samples, saliva tests, hair samples, sweat patches, breathalyzers, or blood tests.
  • Testing employees or job applicants for drug or alcohol use invokes a controversial area of policy and law that is still establishing its parameters. Though the drug testing policies adopted by various organizations vary, some general rules are applicable under the drug-free work place program of both state and federal organizations.
  • As per the general rule, both employees and applicants may be tested for drugs, tests may be conducted pre-employment, “upon reasonable suspicion” or “for cause,” at random, routinely, and/or post treatment or rehabilitation. The basic tests screen for amphetamines, cannabinoids, cocaine, opiates, or phencyclidine (PCP), while the extended tests might screen for barbiturates, benzodiazepines, ethanol, hallucinogens, inhalants, or anabolic steroids. The tests may involve urine samples, saliva tests, hair samples, sweat patches, breathalyzers, or blood tests.
  • Though these are the general rules relating to drug testing, in some cases, there are some special considerations that result in a change in the drug testing policy. These special considerations include factors like whether the testing is mandatory or optional, whether or not the testing is done for a cause or whether it is done at random, whether the employees who are being tested belong to a union or not and also depend on whether the people being subject to the test are actually employees of the organization or only applicants.

 

MANDATORY TESTING UNDER FEDERAL LAW

Under federal law, jobs that involve safety or security functions generally require mandatory drug testing of applicants or employees. The U.S. Department of Transportation adopted revised regulations in August 2001, and other agencies are free to adopt their own internal regulations. Likewise, many states expressly mandate drug testing for similar jobs, for example, jobs in the medical and health related fields, jobs requiring the use of machinery or vehicles, security positions, food handling jobs, or physically demanding jobs such as utilities cable line installation or climbing.

 

FOR CAUSE VERSUS RANDOM TESTING UNDER FEDERAL LAW

Generally, employers are permitted to engage in ”for cause” or reasonable-suspicion testing under drug-free workplace programs. State law may limit or prohibit random (”suspicionless”) testing of employees unless the job position warrants such an intrusion, such as in “safety sensitive” positions. It is important to remember that private-sector employees do not always enjoy Fourth Amendment rights protecting them against unwarranted or unreasonable searches and seizures (only Fifth amendment rights are extended to the states by the Fourteenth Amendment). Nevertheless, many state constitutions incorporate such rights into their own constitutions, so private sector employees may have the same protections.

Since applicants are generally deemed to have a lesser expectation of privacy than current employees, employers enjoy greater freedom to test applicants, without the same concerns being invoked. However, to contain costs, many employers limit drug testing to those applicants whom they expect to offer a position to, as a condition of hire. While there is no requirement to notify an applicant in advance of a drug test, he or she is free to refuse to submit to it. Refusal to submit, of course, may be grounds to terminate the application process.

Union employees are protected by the National Labor Relations Act (NLRA), which mandates that private sector employers must bargain collectively over terms and conditions of employment. The NLRA has ruled that drug testing of current employees (but not applicants) is a term or condition of employment. Unionized public sector employers may unilaterally decide to impose drug testing, but must negotiate the procedures (e.g., chain of custody of samples, notice to employees, confidentiality, consequence of positive results, etc.).

CALIFORNIA MORE RESTRICTIVE IN WHAT EMPLOYERS CAN DO

Under the California Drug-Free Workplace Act of 1990, Cal. Gov. Code 8350 et seq. (modeled after the federal act), only employers who are awarded contracts or grants from any state agency must certify to the contracting or granting agency that they will provide a drug-free workplace. The contractors must also have a written policy for their employees.

In addition to California, seven states have enacted protective legislation that restricts drug testing in the private workplace and gives employees some measure of protection from unfair and unreliable testing: Montana, Iowa, Vermont and Rhode Island have banned all random or blanket drug testing of employees (that is, testing without probable cause or reasonable suspicion), and Minnesota, Maine and Connecticut permit random testing only of employees in “safety sensitive” positions. The laws in these states also mandate confirmatory testing, use of certified laboratories, confidentiality of test results and other procedural protections. While they are not perfect, these new laws place significant limits on employers’ otherwise unfettered authority to test and give employees the power to resist unwarranted invasions of privacy.

In June of 2009, the California Supreme Court further restricted private employers’ drug testing powers in two significant decisions. The Supreme Court failed to overturn two state appeal court decisions in favor of workers who sued their employers because they were fired for refusing to submit to random drug tests.

The court did not elaborate on its decision but issued a one-line order in each case refusing to hear company challenges of the lower court actions. “My impression, based on those two cases, is that random testing is pretty much dead in California,” claimed one of the attorneys who wrote the San Francisco ordinance banning random testing, the first such law in the nation.

Both employees, one a computer programmer for Southern Pacific Transportation Co. in San Francisco and the other an employee of Kerr-McGee Chemical Corp. in Trona, Calif. had charged that random testing violated their state constitutional right to privacy. Both Appellate courts had ruled that such random testing was an invasion of privacy.

In the Southern Pacific case, Barbara A. Luck, a computer programmer, won a $485,042 jury award based on her claims of wrongful firing because she was dismissed in 1985 when she refused to submit to a urine test. James Semore, the Kerr-McGee employee, was fired in 1986 because he refused to submit to a pupillary reaction eye test. The appeal court upheld his right to file suit based on violation of privacy rights.

As pointed out by one attorney for the Employment Law Center, the Supreme Court had an opportunity to approve of random testing of current employees in either the Luck or Semore case and did not do so. Based on the two appeal court decisions, the law in California now seems to be that an employer needs a compelling interest to order random drug tests for employees. It is likely that only safety sensitive jobs might come close to meeting that tough legal standard, and even in those cases the courts have not yet looked favorably.

Employers must also show there is no less intrusive means of testing for drug use such as testing for drug impairment by use of a video game-like skills test developed by NASA to test impairment. Currently, drug testing in California is generally permitted for job applicants, following accidents or when an employer has a reasonable suspicion of drug use by a specific individual.

The Luck and Semore appeal decisions did differ in one legal area that needs to still be resolved by the high court at a later time. While the Luck decision held that her firing was not a violation of public policy, the Semore decision held the opposite — that his firing was a violation of public policy and that if his privacy right is affected, everyone else facing drug testing could be affected as well.

CONCLUSION

Certainly in safety and related fields, it is probable that the employer, whether private or public, can institute appropriate random testing, but in all other fields of employment, aside from the Federal government, the restrictions on random testing can become vital for the employer to recognize and even other types of testing than random must be carefully considered and implemented to avoid the numerous regulatory restrictions. Note that local ordinances, such as those of San Francisco, can impose yet more restrictions upon the appropriate testing. It is thus important for both the employer and employer to familiarize themselves with Federal, State and local ordinances as to drug testing.

But note that the option of simply ignoring the problem may be even more dangerous, since the employer faces vicarious liability if an employee injures third parties or coworkers…or even him or herself…on the job while under the influence of drugs. Further, critical decisions involving contractual commitments, delivery of products, testing of products, etc, that can lead to breach of contract and/or warranty, can also be endangered by an employee under the influence. The matter must be faced and the correct procedures, as allowed by law, implemented.

 

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