DRUG TESTING IN THE WORKPLACE: A GUIDE TO CURRENT
REQUIREMENTS UNDER FEDERAL, CALIFORNIA AND FLORIDA LAWS
(Published January
1995)
According to estimates from the Federal Drug Enforcement Administration ("DEA"), drug abuse now costs U.S. industries between $60 billion and $100 billion per year. Data from the 1988 National Institute on Drug Abuse shows that 70% of those individuals admitting illicit drug use (i.e., drug use at least once in the previous month) were employed. Studies also reveal drug abusers lose three times as much time from work as non-abusers and have four times as many accidents. Drug testing and discipline may therefore seem very desirable, but there are three constitutional restraints on public or government employers: right to privacy; freedom from unreasonable searches; and due process. Private employers should probably take these principles into consideration when developing drug abuse prevention and drug testing policies and programs.
The US Constitution prohibits the Government from unreasonably infringing on a worker's right of privacy. With respect to workplace privacy, the Fourth Amendment prohibits unreasonable "searches." In 1989, the US Supreme Court considered the issue of workplace drug testing and concluded a public employer's taking of a blood, urine, or breath specimen for the purpose of alcohol or drug testing constitutes a "search" under the Fourth Amendment. The Court further held that the determination of whether such testing is "reasonable," and therefore constitutionally valid, requires a balancing of the degree of intrusion on the individual's privacy interests against the promotion of the employer's legitimate interests.
Based on this balancing test, courts favor employee testing by private employers that is based on a reasonable suspicion of alcohol or other drag use. Random or other types of arbitrary testing, such as post-accident testing, are permissible only when they effectively promote compelling interests in detecting and/or deterring substance abuse and do not unduly invade employees' legitimate expectations of privacy. Because job applicants have a lesser expectation of privacy than employees, less justification is required for applicant testing. To satisfy due process, testing policies must use methods meeting rigorous standards of reliability and accuracy, including the use of confirmatory tests, and notice and opportunity for a hearing before disciplinary action.
Most employers adopting drug testing programs do so gradually or incrementally, beginning with the testing of job applicants and only afterward moving on to tests of current employees. Generally, employers only test current employees when there is some cause or suspicion that justifies doing so. The one controversial approach to testing is a random testing of all employees. Courts generally support such testing only when it can meet the test of reasonableness, such as for safety or security-sensitive positions.
An important aspect of drug testing is to establish safeguards. The US Department of Health and Human Services has created the following checklist: (1) in developing a drug testing policy, balance the issues of the employee's right of privacy with principles of public safety; (2) ensure a chain of custody process, through which the drug specimen route can be thoroughly documented; (3) ensure the program provides ample and clear notice, confidentiality of records, accuracy and an opportunity to contest the results; (4) maintain complete and accurate records of positive test results; (5) whenever possible, offer employees who test positive the chance for rehabilitation; and (6) utilize only a licensed laboratory to ensure accuracy, validity, and reliability of test results.
The ADA and Drug Testing
The Americans With Disabilities Act of 1990 ("ADA" or the "Act") prohibits private as well as state and local government discrimination against qualified individuals with a disability. An entity covered by the ADA may: ( l ) prohibit the use of illegal drugs and alcohol at the workplace by all employees; (2) require the employees not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace; (3) require that all employees behave in conformance with the requirements established under the Drug-Free Workplace Act of 1988; and (4) hold an employee who engages in the use of illicit drugs or alcohol to the same qualification standards imposed on all other employees, even if any unsatisfactory performance or behavior is related to the employee's drug use or alcoholism.
Although the ADA provides protection for employees addicted to alcohol, the Act expressly exempts drug users. The ADA expressly permits an employer to deny employment opportunities to an individual who is using illicit drugs. The Act does protect from discrimination a person who has successfully completed drug rehabilitation or who is participating in a self-help drug rehabilitation program and is no longer engaged in the illegal use of drugs.
State Guidelines
Some states address the use of adverse employment action against substance abusers through their handicap discrimination laws. Under these laws, "handicap" or "disability" is sometimes defined to include alcoholism and/or drug addiction. Employees suffering such diseases are then entitled to statutory protection otherwise unavailable in the workplace.
California's Guidelines:
California law specifically provides that drug or alcohol addiction is a handicap. See Cal. Gov't Code § 12940. The California Labor Code provides that every private employer regularly employing twenty-five or more employees shall reasonably accommodate any employee who wishes to enter and participate voluntarily in an alcohol or drug rehabilitation program "unless the accommodation would impose undue hardship on the employer." Cal. Labor Code § 1025. Employers must make "reasonable efforts to safeguard the privacy" of employees enrolled in alcohol or drug rehabilitation programs. Id § 1026. Employers do not have to provide time off with pay, but they must allow employees to use sick leave. § 1027. The Labor Code does not "prohibit an employer from refusing to hire or discharge an employee whom, because of the employee's current use of alcohol or drugs, is unable to perform his or her duties." Id. § 1025.
California's regulations permit an employer to condition an offer of employment on the results of a medical examination conducted to determine fitness for duty. Wilkinson v. Times Mirror Corp., 264 Cal. Rptr.194,20607 (1989). However, all employees entering similar positions, must be subject to the same examination. Applicants must have an opportunity to submit independent medical opinions before the employer makes a final determination on disqualification.
Also, courts have ruled that the California State Constitution does impose privacy constraints on private employers. Luck v. Southern Pac. Transp. Co., 267 Cal. Rptr. 618, 627-28 (Ct. App.), cert denied, 111 S.Ct. 344 (1990); Wilkinson, Supra. at l99. California courts have decided that applicant testing does not violate the right to privacy if the employer provides a clear notice of testing to prospective employees, no supervised urination occurs, and procedural safeguards exist to restrict access to test results. Id at 205. However, current employees are entitled to greater privacy expectations and may only be tested after balancing an employee's expectations of privacy against the employers need to maintain the health and safety of its workplace. Semore, 266 Cal. Rptr. At 286.
Florida's Guidelines:
Under Florida law, "[i]f an employer implements a drug-free workplace program which includes notice, education, and testing for drugs and alcohol . . . the employer may require the employee to submit to a test for the presence of drugs or alcohol ...." L. § 440.101. The employer must give the employee written notice of the drug policy and testing procedure and must also afford the employee an opportunity to challenge the results. Id § 440.102(3). The statute allows four types of testing: "Job applicant" testing, "Reasonable suspicion" testing, "Routine fitness for duty" testing, and "Follow-up" testing. See id § 440.102(4). The statute sets out specific testing and confirmation procedures for drug testing that the employer must follow to protect the employee and provide accurate results. See id § 440.102(5)-(9).
Federal Guidelines:
The Drug-free Workplace Act of 1988 requires all federal grant recipients and federal contractors (where contracts exceed $25,000) to certify that they will provide a drug-free workplace and to meet certain educational and policy requirements. The law does not require testing of employees.
The US Department of Transportation ("DOT") requires testing of certain personnel of companies engaged in shipping. Not all employees are covered, but employers~ are required to have a drug policy, testing, and education for substance abuse and to provide information where the employee might obtain assistance. The rules further specify the forms of testing and set standards for test procedures. The DOT's guidelines require federal drug testing programs to test, at a minimum, for marijuana and cocaine. Testing for opiates, amphetamines and phencyclidine ("PCP") is also authorized, but not mandated. To insure accuracy and reliability in drug testing, standard procedures have evolved that require a two-step diagnostic process using an initial screening assay followed by a confirmation assay.
The Federal Rehabilitation Act of 1973 prohibits employment discrimination against former drug abusers. However, the definition of "handicapped individuals" in the act specifically excludes employees whose drug use: (a) results in on-the-job impairment; or (b) affects the safety of the public or other employees.
