What makes a drug-testing program the most defensible?
That breaks down into a few questions. The first question is what kind of drug testing is the employer planning? It might be random drug testing, applicant drug testing, post-accident drug testing, testing on reasonable suspicion or some combination. Of all those, applicant testing and testing on reasonable suspicion are the kinds that have the greatest chance of being upheld if challenged in court.
Why is random testing harder to defend than, for instance, applicant testing?
The principle point to make with respect to pre-employment drug testing is that the courts have shown greater sympathy toward it and greater willingness to uphold it than current employee testing, because the applicant is viewed as having less of an interest in getting a job than an existing employee has in keeping a job. Random testing is seen by the courts as being more intrusive into the privacy rights of employees, and of course employees are seen as having a greater expectation of privacy rights in this regard than applicants.
Do privacy rights play a big role in the legality of drug testing?
In virtually all cases dealing with drug testing, the courts have applied a balancing test in which they balance the employer's need for the information against the intrusion into the employee's reasonable expectation for privacy. So as an employer, you need to think carefully about what the business justification is for drug testing.
You say employers should consider the business justification. What justification will stand up the best?
The best reasons, the ones that have the most acceptance with the court, are when the employee has a function that involves public health or safety -- dealing with hazardous or explosive materials or firearms, or positions that involve driving trucks or piloting planes. Jobs that (if performed under the influence of drugs) can involve a real threat to public health and safety or the health and safety of co-workers are the ones for which the courts have been most willing to accept drug testing.
Would you advise testing an employee whose behavior implies drug use?
There's no substitute for an alert and well-trained supervisory force that can spot a problem employee -- whatever the cause of the problem. The most useful way to employ drug testing may be as a supplement to a well-trained supervisory force, to be used as a way of confirming what a supervisor has already detected -- that a poor-performing employee may have a drug problem. It avoids for the employer some of the problems that go with random drug testing and some of the other forms of testing.
So is this one of the reasons courts are more likely to uphold drug testing for reasonable suspicion?
In a reasonable suspicion context, the employer not only has the drug test confirming that the employee has used drugs, but also has observed drugs affecting the performance of the employee in the workplace. Obviously, the employer is in a stronger position when there's an observable workplace problem. I'd define reasonable suspicion as (actions that are) sufficient to give the employer grounds to consider disciplinary action, even in the absence of a drug test to confirm the fact that drugs were the cause of the employee's erratic behavior.
If employers decide they want to institute random drug testing -- generally the most challenged -- what can they do to make it more defensible?
Random drug testing usually involves picking an employee's name out of a hat, or testing everybody over a period of two years. Random testing need not be completely random -- you can give notice to the employees on when they're going to be tested. That defeats some of the utility for using drug testing to weed out employees who have a drug problem. On the other hand, it also does a lot to diminish the employee's reasonable expectation of privacy, and has a better chance of being sustained by a court or an arbitrator. There's always that trade-off.
If an employer decides it wants to notify employees of drug testing, how should this policy be communicated?
Employer actions that may intrude on employee privacy rights should always be communicated up front. As I said, the courts have analyzed privacy issues by balancing the employer's business justification for testing against the employee's reasonable expectation of privacy. The more clearly employees understand they're subject to certain kinds of testing or searches -- in this case drug testing -- the less reasonable expectation of privacy they have.
Any other pitfalls that would prevent a drug-testing program from being completely legal?
There's no such thing as absolutely legal drug testing. The very nature of drug testing, because it does involve that balancing act, is such that it's always subject to second-guessing by a court as to whether the employer's reasons were good enough or the intrusions on the employee's rights were too severe. But there are inadvertent problems or pitfalls that employers should be aware of.
What are some pitfalls?
Perhaps the most common is the belief employers may have that because they've hired an outside clinic or laboratory -- which may hold itself to be expert in drug testing -- that it necessarily means the clinic or laboratory is doing everything correctly. I've seen cases in which employers have relied on their outside lab to ensure that the obtaining of the sample, the chain-of-custody procedures, the testing procedures and the review by a medical review officer are all done properly, and of course this is all done without the employer's direct supervision. The employer can get in trouble if the lab or clinic doesn't perform its job properly.
What should companies do to protect themselves in this area?
The selection of a competent outside lab or clinic, one that understands the legal obligations that go with drug testing, is very important. I'd suggest the employer consult with legal counsel in designing its drug-testing program, and that the legal counsel review the procedures used by the lab. Counsel should ensure the lab complies with the requirements contained in the regulations and that it has the best available procedures for matters such as chain of custody, confirming tests and the like.
We've talked about drug testing's potential conflict with privacy laws. Are there any other laws it may conflict with?
There are potential issues under the Americans with Disabilities Act and other laws prohibiting discrimination in employment. The ADA doesn't protect an employee's illegal drug use, but it does protect an employee who has overcome a drug-addiction problem or who's erroneously perceived as engaging in illegal drug use. So there are problems there for employers. There are also statutes that vary from state to state dealing with the confidentiality of medical records that employers must be careful not to violate. In addition, there are potential claims for wrongful termination if an employer disciplines or terminates an employee who refuses drug testing. Once again, it's important to consult with counsel not only in setting up the drug-testing program, but also before terminating anybody either on the basis of information generated by the testing or for refusing to cooperate with a drug-testing program.
Do issues such as an employee's refusal to submit to drug testing have to be taken on a case-by-case basis?
Yes. (Drug testing) is a matter that the courts haven't given full guidelines on. It would be nice for employers if there was a firm set of nationwide guidelines that give clear instructions as to when drug testing is permitted and when it's not -- guidelines that protect an employer against liability as long as an employer complies with them. But no such guidelines exist. We're a nation that seems to be of two minds with respect to the interests involved in drug testing. On one hand, no one would like to think that their co-workers are endangering their lives or the company's work by using drugs. On the other hand, we value privacy and don't want to submit to unnecessary intrusions when it comes to things like urine testing. So the law also is somewhat of two minds on this. It doesn't give us any clear guidance.
Will it ever?
It seems likely to me that these competing interests will continue to compete, and there never will be a clear solution that gives employers absolute safety in conducting drug testing.
Is drug testing ever required for employees?
There are various classifications of employees who are required to test for drug use under federal regulations promulgated by the Department of Transportation, the Department of Energy and other classes of employees governed by federal regulations. Other jobs fall within the federal drug-free workplace act, which doesn't per se require drug testing but does require federal contractors covered by it to take steps to ensure a drug-free workplace.
Are there any special rules regarding drug testing in a union setting?
For employees represented by a union, there are some additional issues that come into play when instituting drug testing. One, of course, is the obligation to bargain with the union on a drug-testing policy. The law seems to be that drug testing is a mandatory subject of bargaining, unless the union has waived the right.
What seems to be the general feeling about drug testing in unions?
Arbitrators haven't per se refused to enforce drug-testing policies or to uphold discipline undertaken pursuant to a drug-testing policy. But arbitrators have shown in general they're not very sympathetic to employers who terminate employees over drug-related issues. It's been the trend in recent years that arbitrators seem to look for ways to avoid imposing the most stringent punishment -- termination -- on employees in drug-related cases. Those ways include finding procedural defects that they rely upon to help reinstate the employee, or deciding the discipline is just too severe in relation to the events.
What about drug testing of temps?
I haven't seen any cases that have applied different rules in the case of temps. But (in deciding defensibility), I think the nature of the job is probably much more important than how long the employee is performing the job.
If an employee tests positive for drug use, what options does a company have?
Termination is by no means the only choice. Many employers focus their efforts on rehabilitation, such as an employee assistance program. Or an employer may also give an employee the opportunity to continue to work under what's sometimes called a "last chance" agreement, in which the employee agrees to undergo treatment and monitoring in the form of continued drug testing for a period of time -- with the understanding that if the employee can remain drug free, then the employee will be able to continue to work.
Can an employer demand that an employee who tests positive seek treatment under threat of termination?
The employer has a fair amount of freedom in deciding what it's going to do with employees who test positive. The courts will look more favorably on an employer that has given an employee a second chance than an employer that terminates an employee the first time around. It has been a traditional understanding in the workplace that intoxication at work, like theft or other things, is a serious offense -- for which employees generally are terminated for a first offense. But testing positive for drugs isn't necessarily the same as intoxication in the workplace. One of the issues in drug testing is that it detects not only impairment on the job, but also off-site and off-work use of drugs. An employee who tests positive for drugs may not have been actually using drugs in the workplace. Therefore, perhaps a bit more leniency and an opportunity to deal with the problem may provide the employer with a margin of safety that will be very useful if there's ever a challenge to the employer's drug-testing program.
Personnel Journal, April 1996, Vol. 75, No. 4, pp. 141-144.