Overview Today’s webinar will address: • Benefits and potential risks associated with drug testing ; • When and how local governments can utilize drug testing; and • Practical advice on the methods of drug testing.
Benefits of Drug Testing • Increased workplace safety • Increased worker productivity • Decreased insurance costs • Better employment relations • Reduced legal liability for negligent hiring and negligent retention • Compliance with DOT regulations
Potential Risks of Drug Testing • Violation of Fourth Amendment rights The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. • Discrimination • Testing procedures must be consistently applied regardless of any protected characteristic • Testing procedures should not disparately impact any class of employees
Fourth Amendment
Fourth Amendment (cont.) • Search is reasonable if: • Employer has individualized suspicion of drug use; • Employer has a “special need” for testing ; or • An “important governmental interest” exists. *Government’s interest in maintaining a “drug- free” workplace is not enough to justify testing
Fourth Amendment (cont.) To date, the Supreme Court has recognized only two concerns that present such “exceptional circumstances” which are sufficiently “substantial” to warrant an exemption to the Fourth Amendment’s warrant and probable cause requirement: (a) the specific risk to public safety by employees engaged in inherently dangerous jobs, i.e., safety sensitive; (b) protection of children entrusted to the public school system’s care and tutelage.
When May a Government Drug Test its Employees? • Reasonable, individualized suspicion • Pre-employment • Routine (periodic) testing • Random testing • Post-accident testing
Reasonable, Individualized Suspicion • Not as intrusive because person’s own conduct triggers it • Requires reasonable, articulable suspicion • Facts which lead to reasonable belief that employee is under the influence or impaired by drugs or alcohol • Case-by-case, but examples of reasonable suspicion include: • Physical appearance • Deterioration in work performance • Excessive absences • Carelessness and erratic behavior • Accidents • Smell of marijuana • Can be applied to all employees
Reasonable suspicion (cont.) Reasonable suspicion can be developed as follows: • Direct observation of drug/alcohol use or possession. • Direct observation of the physical symptoms of being under the influence of a drug or alcohol. • A pattern of abnormal conduct or erratic behavior by employee. • Arrest or conviction for a drug related offense, or employee as the focus of a criminal investigation into illegal drug possession, use, or distribution. • Information that is provided by reliable and credible sources or that can be independently corroborated. • Newly discovered evidence of tampering with a previous drug test • Admission by employee
Pre-employment testing of applicants • Arguably, lessened privacy interest: nothing compels them to apply for a job in public sector • Supreme Court has not addressed, but Von Raab implies testing all applicants would be unconstitutional • Testing of all applicants found unconstitutional by the Northern District of Georgia (Harris) and the Southern District of Florida (Baron) • Limit to applicants for safety-sensitive positions
Safety-sensitive positions • Duties involve “such a great risk of injury to others that even a momentary lapse of attention can have dangerous consequences” • Focus is on immediacy of the threat of danger • Positions found to be safety-sensitive: • Armed law enforcement officers • Firefighters • EMTs and other health care professionals responsible for direct patient care • People who operate/repair/maintain passenger-carrying vehicles • Drivers of sanitation trucks • Positions involving supervision/instruction of children **Operating a vehicle does not make position safety sensitive**
Safety-sensitive positions (cont.) • Drug interdiction positions or positions involving unsupervised access to prisoners or contraband • Von Raab: • U.S Customs Service employees seeking promotion to positions involved in halting flow of drugs • Compelling government interest: ensure that people working on front lines of drug war were of unimpeachable integrity (routinely exposed to crime and drug use and are targets of bribery)
Routine (periodic) testing • Arguably, lessened privacy interest: advance notice • E.g., annual medical exam or pre- transfer/promotion • Supreme Court has not addressed, but most courts hearing these cases find violation of Fourth Amendment when situation does not involve a safety- sensitive position
Random testing • Conducted at any time and without advance notice • Test only those employees performing safety-sensitive duties • Ensure testing is truly random • Implement a systematic process for selection of employees for testing
Post-Accident Testing • Supreme Court has not addressed, but several courts permit such testing in situations that do not involve safety- sensitive or drug interdiction positions • Cheney: severe accident; employer had little or no discretion in determining when to require the test (accidents resulting in hospitalization); narrow scope of who will be tested (employee(s) causing the accident only)
Post-Accident Testing (cont.) • If you have reasonable suspicion, can test any employee post-accident, regardless of fault, amount of damage, injury, etc. • If employee is in a “safety-sensitive” position, can be tested post-accident regardless of fault, damage, injury. • If the above not present, then policy should only authorize testing on an at-fault employee, when there is resulting death or significant bodily injury (requiring medical attention) or significant property damage. • Amount of damage to justify testing is not clear
What Procedures Should be Followed? • Written drug testing policy – Provides notice prior to implementation of program – Notice should include: • Grounds when drug test may be required (including specific positions) • Actions employer may take if test is positive • Confidentiality statement • Manner program will be administered • Employee’s right to refuse, and consequences • Information re: rehabilitation if test is positive • Employee’s right to contest/explain if test is positive • Procedures to request records
What Procedures Should be Followed? • Define key terms – “Reasonable suspicion” – “Accident” – “Personal injury” • Indicate dollar amounts for personal injury or property damage (post- accident testing)
What Procedures Should be Followed? • Appropriate methods for collection – Evaluate how method impacts individual’s privacy • Blood: greatest invasion of privacy, need probable cause or exigent circumstances • Hair: focus on reasonable suspicion and manner of collection • Urine: minimal invasion of privacy but requires reasonable suspicion – Monitored urine testing: greater intrusion
What Procedures Should be Followed? • Confirmation of test results (Medical Review Officer) • Appropriate personnel actions – Referral to Employee Assistance Program – If safety-sensitive position, remove from position until successfully completes rehabilitation – Remove from service those who are found to use drugs and refuse to obtain counseling or rehabilitation or do not thereafter refrain from drug use
What Procedures Should be Followed? • Recordkeeping – Retain for two years – Keep drug testing records separate from other medical and personnel records of employee • Confidentiality – Only share drug testing information when there is a significant safety hazard or a medical disqualification – Amount of information shared should be as minimal as possible – Share only with those with a clear need-to-know
Conclusion • Drug testing provides many benefits • Local government employers must be careful to avoid violating Fourth Amendment protections, particularly regarding suspicionless drug testing such as random, pre-employment, post- accident, and routine testing • No matter the basis for testing, local government employers must establish and follow a written drug testing policy.
• For questions about the HR Express Program, contact: Alan Dickerson Director of Local Government Services and Training (678)-686-6213 • For questions relating to this webinar, contact: Elarbee Thompson’s Public Sector Group (404) 659-6700 www.PublicEmploymentLaw.com
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