Copyright © Ethan A. Winning All Rights Reserved
When I started my career, there was only one "drug" which was a concern for employers and that was alcohol which, because we were so politically and socially naive in those days, we didn't even classify as a drug. We never had an alcoholics in the workplace, although we had quite a few managers, mostly in marketing and sales (when expense accounts and the two-martini lunch came with such territories), with "drinking problems."
History -- Executive Order 12564: Then, in 1986 we began our "war on drugs," a war which I'm not too certain can be won, but that makes and made little difference to those with government contracts. EO 12564 was the first step toward mandatory drug testing of federal employees. Issued by President Reagan in September 1986, the order required federal agencies to carry out drug testing for employees in sensitive positions. A "sensitive position" was one involving national security or safety, but government agencies were also authorized to test applicants and employees in nonsensitive positions when "the agency had a reasonable suspicion of drug use" or after an accident had occurred.
In 1988, Congress passed the Drug-Free Workplace Act (see 41 USC Sections 701-707), under which no government contract would be awarded unless the prospective contractor or recipient of a federal grant certified that it would maintain a drug-free workplace. (If you need to know the seven steps that a contractor must take, please email me.) It is important to note that the Act did not authorize employee drug-testing in the workplace. On the other hand, it didn't preclude such testing either. Several states have implemented their own acts, usually without the monetary amount of contracts included (federal = $25,000).
Applicant Testing: There are two famous or infamous cases dealing with applicant drug testing. Both can be accessed on the Web. The first was Wilkinson vs. Times Mirror Corp. (1989) in which the court upheld an employer's requirement that all applicants provide a urine sample for testing in the course of a pre-employment physical. It is important to note that the test was conducted by medical personnel where there was no privacy invasion and access to the results was restricted. The company was not told of the results, only of the "suitability" of the applicant, and all applicants were told of the tests during the hiring process.
In the second, Hill vs. NCAA (1994), the California Supreme Court held that Hill should be the "first point of reference" for the companies conducting drug tests even though Hill was not a workplace drug-testing case.
Random Testing and the Right to Privacy: It was in Hill that the court stated that only a legitimate or important interest was required to justify random drug testing. It noted that "future claims arising in the employment context will be subject to the elements and standards we announce here: (From the California Bar Association)"
- The employees' reasonable expectation of privacy;
- The employer's special interests; and
- Public interests arising in the particular setting.
In addition, the employee's reasonable expectation of privacy must include safeguards for protecting the confidentiality of the testing process, the amount of discretion supervisors have in choosing subjects, and the degree of actual intrusion in obtaining the sample.
According to legal experts, the best way to avoid invasion of privacy claims is to base the testing on a reasonable suspicion, but it is my opinion that, if this is to be the case, then all supervisors and managers must receive training...which leads to other questions.
Reasonable Suspicion Testing: In American Federation of Government Employees v. Martin (9th Cir. 1992), the court held that a urinalysis could be based on either on-duty or off-duty drug use when the reasonable suspicion derived from:
- Direct observation of drug use or possession or "the physical symptoms of being under the influence of a drug;"
- A pattern of abnormal conduct or erratic behavior;
- Arrest of conviction for a drug-related offense;
- Information provided by reliable sources or independently corroborated; or
- Evidence that he employee had tampered with a previous drug test.
Caveats: Of course, this is where I have some difficulty and I would call for training of any supervisory personnel in deducing what "abnormal conduct" or "erratic behavior" is and whether it is caused by drugs (or alcohol).
Further, off-duty behavior should only be taken into consideration when it affects on-duty performance.
Post-Accident Testing and Workplace Drug and Alcohol Policy: For post accident testing and policies, see subscriber's section of this web site.