United States: Employee Drug Testing And The Rights Of The Public Employees

Last Updated: September 14 2016
Article by Sheila Gladstone and Ashley Thomas

An employer may choose to drug test its employees as a means to avoid employing individuals who use illegal drugs, thereby reducing the risk of having impaired employees in the workplace and deterring drug abuse (as well as catching signs of abuse early). While these goals are laudable and may make good business sense, as governmental entities, public employers (unlike private employers) that wish to implement drug testing policies must avoid infringing on their employees' constitutional rights. This article provides an overview of the legal framework public employers must work within when drug testing their employees.

The Fourth Amendment Governs

It is well established law that a governmental entity's collection of blood, breath, hair, or urine is considered a search under the Fourth Amendment, which prohibits unreasonable governmental searches and seizures. However, in the context of workplace drug testing, the United States Supreme Court has created two exceptions to the requirement that all searches be conducted pursuant to a warrant: if (i) the government can show a "special need" to conduct the drug test, or (ii) there is "reasonable suspicion" of drug use.

Special Needs Exception

The U.S. Supreme Court explained the meaning of the first exception, the "special needs test," in Skinner v. Railway Labor Executives' Association. A special need arises when the position is one that is safety-sensitive, high-security, or involves the detection of illegal drugs, and the government's interest in conducting the test outweighs the individual's interests in being free from such testing. For employees and applicants in safety and security sensitive positions, testing may be done randomly, across-the-board, or otherwise without individualized suspicion. A safety-sensitive position is one "fraught with such risks of injury to others that even a momentary lapse of attention [could] have disastrous consequences." Courts have upheld such suspicionless drug testing for positions, such as, for example, an elementary school custodian working with dangerous chemicals, a public works department crew leader who operated heavy groundskeeping equipment, and sanitation workers operating dump trucks. These have all been considered safety-sensitive. However, simply because a position requires the operation of an automobile or working with children does not make it subject to suspicionless testing.

Additionally, public employers may require random drug testing for positions that require a commercial driver's license ("CDL") or are otherwise regulated by the U.S. Department of Transportation. Suspicionless drug testing for employees who work in heavily regulated industries, such as water and wastewater utilities, has also been considered permissible because of the employees' diminished expectation of privacy.

Testing Job Applicants

Across-the-board drug testing in a pre-employment context is also unconstitutional, unless the position for which the candidate is applying meets the special needs exception. In Chandler v. Miller, the U.S. Supreme Court held unconstitutional a Georgia state law requiring candidates for certain elected offices to pass a urinalysis drug test. This law was not in response to any previous drug problems, and the officials covered under the law typically did not perform high-risk, safety-sensitive tasks. Rather, it was simply meant to be a statement that Georgia did not condone drug abuse, and a symbolic statement was found to be insufficient justification for suspicionless testing. Another case held that a city could not drug test applicants to a library page position, even though the job required working with children.

Reasonable Suspicion Drug Testing Exception

In the absence of meeting the special needs exception, a government employer may legally test its employees if it has a reasonable suspicion that an employee is engaging in drug abuse while on the job. The reasonable suspicion standard is permissible because it is considered less intrusive than random testing since it is conducted as a result of the employee's own conduct. In one case, a court approved an agency's reasonable suspicion drug testing plan, which provided that reasonable suspicion may be based on "observable phenomena, such as direct observation of drug use or possession and/or physical symptoms of being under the influence of a drug." A gut feeling or rumor that an employee is using drugs, however, will not be enough.

Post-Accident Drug Testing

Post-accident drug testing is also considered less intrusive than random drug testing since it is based on a triggering event. The U.S. Supreme Court has upheld post-accident drug testing, noting that such testing is helpful in determining the cause of serious accidents, and empowers the government to undertake appropriate measures to safeguard the general public by pointing to drug use as a potential cause of a workplace accident or eliminating drug use as the cause. However, across-the-board testing after any work-related injury for all employees, without showing individualized suspicion, a special need, or a connection between the incident and drug impairment, is impermissible. The testing requirement should cover only those employees reasonably believed to have caused the accident.

Conclusion and Recommendations

Public employers have a higher duty to their public employees than private employers, since the Fourth Amendment applies to governmental, rather than private, actions. Public employers must weigh the government's interest against the employee's privacy interest, considering the job's duties, the need for testing, the nature of the work environment, and safety concerns. Employers that wish to drug test should include a drug-testing policy in their employment handbook that sets out the specific triggering events for post-accident and reasonable suspicion drug testing, and that lists the positions that are subject to random testing. Employers that currently conduct random drug testing should audit the subject positions to ensure they qualify as safety-or security-sensitive. In doing so, public employers will increase the chance that their policies will withstand legal scrutiny.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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