Q. Under what conditions can employees be drug tested? If the employee tests positive, can they be discharged? How do we go about setting up a drug test?
Answer By Liz Ernst

 

Drug testing employees has been a hotly debated constitutional issue since Ronald Reagan penned the first Executive Order prohibiting illegal drug use by federal employees in 1986. Two years later, Congress enacted the Drug-Free Workplace Act, which applies to federal employees, military personnel, and federal contractors.

Guidelines established in 1989 state that any employer requiring an employee to produce a urine sample for drug testing must meet “reasonableness” requirements as they pertain to the Fourth Amendment, which guards against unreasonable search and seizures.

Some states have laws placing limits on what situations warrant testing a current employee. When an employer suspects an employee is using illegal drugs, or when workplace safety is an issue, an employer is generally within their legal rights to request drug testing.

However, all employers should have a clearly defined, written drug testing policy in place that abides by applicable laws, which can vary dramatically from state to state.

In Maryland, for example, employers may demand drug and alcohol testing on employees for any “legitimate business purpose.” Maryland has clearly defined procedural requirements and employee rights guidelines by which employers must abide for cases in which a positive test result may be used for disciplinary action.

Some states, including Florida, Arkansas, Delaware, Massachusetts and Virginia have no specific laws on workplace drug and alcohol testing, but that doesn’t mean employees are safe from disciplinary action if they do test positive. State Supreme Courts often favor the employer in cases where the dismissal of an employee who tested positive stemmed from the violation of the employer’s written substance abuse policy.

Fifth Amendment rights issues are also raised when it comes to employee drug testing. We know that the Fifth Amendment prohibits infringement on life, liberty, or property without due process of law, and many employees will argue that drug testing violates their Fifth Amendment rights. However, with the exception of union workers, most private-sector workers are considered to be “at-will employees,” meaning employment can be terminated by either the employer or the employee at any time without notice.

For that reason, employers are not required to provide any reason for job termination, so they are not bound to argue Fifth Amendment rights violations or even implicate drug testing as a basis for firing someone. Still, under certain circumstances legal specialists say that denying a current worker continued employment for refusing a drug test or due to drug test results may trigger a “due process” consideration over the employee’s legal right to respond, the validity of the test results, or any concerns the employee may have about required notice.

Even though drug testing has been declared legal, it is not exempt from constitutional challenges in cases where procedures for collecting urine or other specimens (hair, for example) disrespect the employee’s privacy rights. Additionally, in cases where testing is unnecessarily or excessively executed, or test results are indiscriminately leaked or exposed, the law may very well side with the employee if it appears the employer got sloppy with laws pertaining to testing.

Positive drug test results cannot be used in subsequent criminal prosecutions without express consent of the employee.

The most common situations in which employee drug testing is generally legal include:
•    Situations in which the job poses safety risks can require workers to submit to random drug testing. For instance, certain professions are more apt to require drug testing due to safety concerns, such a commercial truck drivers, airline pilots, or high risk construction jobs. Other jobs with inherent safety risks, such as machinists or warehouse forklift operators, may also be subject to periodic or random testing according to the employer’s written policy on drug testing.

•    Instances in which an employer has a “reasonable suspicion” that an employee is using illegal drugs. Obvious physical evidence such as an employee being discovered with illegal drugs in his possession or in his workplace locker, slurred speech, repeated work errors or bungling of everyday tasks can all constitute reasonable suspicion. When the employer has a written policy in place, drug testing under these circumstances is generally supported.

•    Following an employee’s involvement in a workplace or work-related accident, if the employer has a legitimate reason to believe that drug use contributed to the accident.

•    During or following an employee’s participation in a drug rehabilitation program.
Guide for Employers.

Employers with a written drug testing policy in place that employees are required to read, acknowledge, and sign off on upon hire are going to fare best when it comes to legally implementing and enforcing workplace drug testing.
Under a drug-free work place program, employers can:

1. Test both employees and applicants.

2. Conduct drug tests upon reasonable suspicion or for cause. Testing may also be performed randomly, routinely, and/or subsequent to an employee’s participation in a drug rehabilitation program.

Random, unannounced, and/or non-routine drug testing performed when there is no reason for suspicion or cause can result in legal problems for an offending employer. That includes situations in which testing is applied to some employees but not all employees, or in states that prohibit or limit no cause testing for employees whose jobs do not have inherent safety risks.

Before carrying out an employee drug test, make sure a clear, written description of the process being implemented is provided to the employee(s) being tested, either in the company’s written drug testing policy or in a separate document provided to the employee.

For employers who hire contract workers, drug testing procedures may vary with contracts, in which case the procedure needs to be documented separately for contract workers. Be sure to include the following information:

•    Name of the facility employees are required to go to provide their samples. Include the name, address and phone number of the collection site.

•    Name of the lab or other facility testing the samples. Include the name and phone number of the testing facility.

•    Procedure for reporting results. For instance, will the lab inform the employee of the test results or will that be handled by someone within the company?

Employers considering inclusion of random “no cause” drug-testing for their employees should test all employees if they are going to test one. This will deflect any claims of discrimination from employees who feel singled out.

Finally, although it should go without saying, never under any circumstances should an employer attempt to retrieve a specimen sample from an employee without their knowledge and consent. Doing so could result in criminal charges being levied against the employer. For example, collecting a stray hair from an employee’s workspace to be sent out for drug testing is absolutely illegal.