THIS WEEK’S E-TIP

Should You Test for Drugs? (Part 1 of 2)

Should you drug test your employees? That is the question many employers face as they look for ways to keep their organizations productive and drug free.

On the one hand, employers that test typically do so because they believe employee drug use is detrimental to their organization. Studies have linked drug use to increased absenteeism, accidents, escalating health care costs, higher workers' compensation rates, and lowered productivity. In addition, the annual Drug Testing Index conducted by Quest Diagnostics (a national company that conducts employer drug testing) suggests that drug testing can lower drug use in workplaces. Since Quest first published its index over 20 years ago, drug use has declined significantly in the organizations that test, from 13.6% of workers who tested positive in 1988 to only 3.6% in 2008.

On the other hand, testing has clear drawbacks, including employee apprehension and resistance and increased exposure to lawsuits based on invasion of privacy, negligent testing, defamation, and other legal claims.

(Download free Drugs, Narcotics, and Alcohol model policy including HR best practices and legal background.)

So how do you decide if drug testing is right for your organization? In this week’s E-Tips, you will find a summary of eight different laws that regulate drug testing. Next week’s E-Tips will address four business-related factors to consider before implementing a testing program and seven tips to create an effective program. In addition, as an alternative to testing, you will be prompted to consider more effective use of your existing performance and discipline policies.

* Drug Testing Legal Issues *

An overview of the laws affecting drug testing is a good place to begin your analysis. Most private employers are not required to conduct drug tests, but you also are not prohibited from testing. In fact, there is no comprehensive federal drug testing law for employers to follow. Instead, a patchwork of federal and state laws and court-created legal theories govern testing programs, policies, and procedures, including:

1. Department of Transportation (DOT) rules. The DOT has adopted regulations specifying drug testing procedures for transportation employers that are regulated by its operating administrations. The DOT regulations require testing for employees in safety-sensitive positions (such as commercial drivers, mass transit vehicle operators, and dispatchers) in certain specified situations (preemployment, reasonable suspicion, periodic, post-accident, and random testing) and impose extensive recordkeeping and notice requirements.

2. The Fourth Amendment. The Fourth Amendment to the U.S. Constitution prohibits unlawful governmental "search and seizure." Because drug and alcohol testing is considered a "search" under the Fourth Amendment, public employers may conduct drug testing only in limited circumstances. Note that the Fourth Amendment restricts government employers only and does not apply to private-sector employers.

Generally, the courts have determined that public employers must have some level of reasonable, individualized suspicion before testing is conducted. Alternatively, if testing is not based on reasonable suspicion, it should be limited to situations: (1) involving employees in safety-sensitive positions; or (2) in which testing is critical to advance special governmental interests, such as the protection of classified national security information. So, for example, in Krieg v. Seybold, 481 F.3d 512 (7th Cir. 2007), the court determined that a city sanitation worker, who drove a dump truck that the court said presented a substantial risk of injury to others if operated under the influence of drugs or alcohol, had no Fourth Amendment protection when he was fired for refusing to take a random drug test at work.

3. State drug testing laws. Many states and municipalities have passed drug testing laws, including Connecticut, Iowa, Maine, Minnesota, Rhode Island, Utah, and Vermont. These laws generally do not prohibit testing, but regulate when employees may be tested and how the testing should be administered. For example, some prohibit random testing, while others establish certain procedures that employers must follow to enhance confidentiality and accuracy. These procedures may include requirements for specimen collection, confirmation of initial positive results, and evaluation of test results by a medical review officer.

4. State constitutional protections. Some state protections of the right to privacy also may restrict private employers from instituting certain types of drug or alcohol testing, especially random testing. For example, the Ohio Supreme Court, in State ex rel. Ohio AFL-CIO v. Ohio Bureau of Worker's Comp., 780 N.E.2d 981 (Ohio 2002), determined that a state law requiring every worker injured on the job to submit to a drug and alcohol test violated employees' federal and state constitutional rights against unreasonable searches. The court objected to the fact that testing was required regardless of whether there was any reason to believe the injury was caused by intoxication or use of controlled substances.

But, in other states, courts have upheld drug testing under the state's constitution. In Stein v. Davidson Hotel Co., 945 S.W.2d 714 (Tenn. 1997), the Tennessee Supreme Court determined that a state constitutional guarantee of privacy does not restrict the right of private employers to discharge an at-will employee who tests positive on random drug tests.

5. State workers' compensation statutes. Several states, including Florida, Georgia, and Tennessee, have enacted laws as part of their workers' compensation programs to encourage drug testing. These laws give employers incentives to establish drug and alcohol policies that include employee notice, education, and post-accident drug testing. Employers with these policies can prevent awards under state workers' compensation laws for workplace injuries resulting from drug or alcohol use and may qualify for premium discounts on their workers' compensation policies.

6. Testing and wrongful act claims. Applicants who are not hired, and employees who are disciplined or discharged, because of positive test results also may file claims under a variety of legal theories. These claims include invasion of privacy, intentional or negligent infliction of emotional distress, negligence, defamation, wrongful discharge, breach of an express or implied contract, and breach of an implied covenant of good faith and fair dealing. These cases often come up when the employer has not clearly outlined the business reasons for testing or has not followed proper testing procedures.

So, for example, in Ishikawa v. Delta Airlines Inc., 2003 U.S. App. LEXIS 24303 (9th Cir. 2003), the court upheld a $400,000 damage award to an employee in a lawsuit naming her employer and the lab that negligently performed a drug test that resulted in her firing. Similarly, in Kelley v. Schlumberger Tech. Corp., 849 F.2d 41 (1st Cir. 1988), the court upheld a $125,000 jury verdict for negligent infliction of emotional distress where the employer's representative, in order to prevent tampering with the sample, watched the employee as he provided a urine sample for testing.

7. Drug-Free Workplace Act. Interestingly, the Act does not require employee drug testing. Instead, it requires federal contractors with contracts of $100,000 or more and grant recipients to certify that they maintain a drug-free workplace. In addition to other obligations, covered employers must issue a written policy that prohibits the illegal manufacture, distribution, possession, or use of a controlled substance in the workplace, and specifies the consequences for violating the policy.

(Download free Drugs, Narcotics, and Alcohol model policy including HR best practices and legal background.)

8. Americans with Disabilities Act (ADA). The ADA is another law that does not regulate drug tests, but it does limit medical examinations. The ADA prohibits employers from making any medical inquiries of applicants at the pre-offer stage. The ADA specifically states that drug tests are not medical tests, and so employers may conduct them before the applicant receives a conditional offer of employment. However, since drug testing is likely to reveal medical information (for example, about the person's legal drug use or any underlying medical condition that may be protected by the ADA), most legal experts advise employers to test applicants only after making an employment offer.

Four business-related factors to consider before implementing a testing program and seven tips to create an effective program. In addition, as an alternative to testing, you will be prompted to consider more effective use of your existing performance and discipline policies

Should You Test for Drugs? (Part 2 of 2)

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