Under the Influence? Drugs and the American Work Force (1994) / Chapter Skim
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Appendix B: The Legal Environment of Drug Testing
Appendix B: The Legal Environment of Drug Testing
Pages 284-301
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From page 284... ...
These limits are established by courts in suits that challenge the legal authority or constitutionality of drug-testing programs. Finally, the law, either through statutes, regulations, or court decisions, may control what private entities can do on their own initiative by way of drug testing.
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From page 285... ...
introduced the concept of a "drug free workplace" and set in place many of the features of workplace drug testing that have now become standard for public and regulated private employers. It required all federal agencies to adopt employee drug-testing programs, which included mandatory testing for employees in "sensitive" positions involving law enforcement, public health and safety, and national security, with the extent of testing and the criteria for testing being left to the discretion of each agency head.
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From page 286... ...
This amendment prohibits unreasonable searches and seizures by governmental agents and, subject to certain exceptions, limits governmental searches to those made pursuant to a warrant upon a showing of "probable cause." The Fourth Amendment does not, however, restrict the actions of private individuals or organizations so long as they are acting on their own initiative and not in response to some governmental mandate. Universal or routine workplace drug testing obviously fails to satisfy
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From page 287... ...
The "probable-cause" language of the Fourth Amendment has, however, been held inapplicable to administrative searches that serve primarily a regulatory rather than a law enforcement purpose, so long as the search does not contravene the Fourth Amendment's more general preclusion of "unreasonable searches." The reasonableness or unreasonableness of an administrative search depends on the balance between the governmental interests served by the search and its intrusiveness. A special rule for administrative searches was first carved out by the Supreme Court in 1967 in Camera v.
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From page 288... ...
The Court next found that both the collection of blood, urine, and breath and the subsequent chemical analysis of these substances constitute searches for Fourth Amendment purposes. But, having found that the testing program was a search within the meaning of the Fourth Amendment, the Court analyzed the FRA's drug-testing requirements under the reasonableness test used for administrative searches rather than by ref erence to the law enforcement standard of probable-cause or a lesser standard of reasonable suspicion.
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From page 289... ...
The Customs Service characterized drug interdiction as its primary enforcement mission and argued that "there is no room in the Customs Service for those who break the laws prohibiting the possession and use of drugs." While no serious drug problem had been uncovered within the Customs Service, the implications of such a problem, if it did arise, were offered as a justification for a wide-ranging drug-testing program. The Supreme Court, this time by a 5-4 vote, once again held that neither probable-cause nor reasonable suspicion were needed to test government employees in "sensitive" positions.
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From page 290... ...
The Court's deference to the FRA's safety concerns suggest that drug testing throughout the transportation industry and in other areas in which safety concerns are easily and plausibly invoked, such as fire departments and public utilities, will be upheld against Fourth Amendment challenges, at least so long as the testing program is required of employees in safety-related positions and no more intrusive than the urine testing in Skinner. Von Raub extends Skinner's permission for warrantless searches to situations in which there is no reason to believe that drug use has been a problem and to employees whose performance will not necessarily be adversely affected by drug use.
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From page 291... ...
However, the court held that the government's interests in work force integrity, public safety, and protection of sensitive information did not, for Fourth Amendment purposes, make reasonable a plan for randomly testing employees in less sensitive positions, including Antitrust Division attorneys. The appellate court also rejected the department's plan to test all criminal prosecutors and all employees with access to grand jury materials.
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From page 292... ...
19911. Factors to Be Considered In striking the balance mandated by Skinner and Von Raub, there appears to be an emerging consensus among federal courts reviewing drug testing by public employers about what makes a governmentally mandated program reasonable within the meaning of the Fourth Amendment.
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From page 293... ...
It also appears that, although the Supreme Court in Skinner pointed to the absence of visual monitoring as a factor supporting the constitutionality of the program at issue in that case, monitoring seldom appears as a crucial factor, perhaps because visual monitoring of the urine sample collection process seldom seems to occur. The reliability of testing techniques in detecting the presence of illegal drugs (or their metabolites)
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From page 294... ...
Thus the factors that lead courts under the Fourth Amendment to approve or disapprove of drug-testing programs in the public sector will not in themselves validate or undermine the drug-testing programs that private businesses establish at their own initiative. The other two dichotomies that we have mentioned, the distinction between pre- and postemployment drug testing and the distinction between state and federal law, do play an important role here.
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From page 295... ...
This body of law is beginning to change so that in certain situa tions courts will hold that dismissals for certain reasons are against public policy. Given the national policy against drug use, employees to date have had little success in claiming that discharges based on positive drug tests violate public policy, but one court did indicate that a firing in contravention of a state statute regulating workplace drug testing would be against public policy (Johnson v.
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From page 296... ...
Another reason relates to the reasonableness of a drug-testing program. One factor that might lead a court to find a preemployment drug-testing program reasonable whereas a postemployment program would not be is that an employer cannot observe an applicant at work and so has little basis apart from a drug test for determining whether his or her work might be impaired by drug use.
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From page 297... ...
In 1987, a California appellate court affirmed a $485,000 jury award for wrongful discharge to a programmer for the Southern Pacific Railroad, who had been fired for refusing to provide a urine sample for drug testing. The court held that the railroad lacked a safety interest strong enough to justify testing.
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From page 298... ...
Parts of the Vermont and Rhode Island statutes have already been held to be preempted by federal regulations; other state statutes explicitly defer to conflicting federal laws and regulations. CONCLUSION The scope of workplace drug testing is limited by certain state and federal constitutional restrictions, particularly in the public sector and in postemployment settings, but these limits are generous and allow a broad range of employees to be tested using a wide range of reliable methodologies.
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From page 299... ...
A WORD ABOUT ETHICS The fact that the law allows the government to test its employees in many circumstances and imposes few or no limits on applicant drug testing ITo the extent that drugs use substantially degrades job performance, performance tests will even serve some of the deterrence functions of chemical drug testing, for a worker using drugs can expect to fail the performance test and be sent home, losing a day's pay. Also not doing well on a performance test might serve to establish cause for a drug test.
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From page 300... ...
Thus empirical research is important not only to develop more effective drug-testing programs or to tell organizations whether proposed programs make economic or safety sense. It is also important to inform the serious ethical conversation that should take place whenever there is a proposal to institute, cancel, or substantially change a program of workplace drug testing.
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From page 301... ...
Labor Relations Week 1989 Workplace drug testing: evolving law and employer practice. Labor Relations Week (suppl)
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