http://said.dol.gov/StateLawList.asp#UT
Employee
drug and alcohol abuse costs American employers
billions of dollars in decreased productivity,
increased liability insurance and higher workers’
compensation insurance premiums. Employers may be
liable for the negligence of an employee under the
influence of drugs or alcohol and they may also be
liable for negligently hiring an employee with a
history of abusing drugs or alcohol. Furthermore, drug
and alcohol abuse is also blamed for high employee
absentee rates. All of these factors give employers an
incentive to test their job applicants and current
employees for illegal drugs or alcohol.
Because
state and federal laws have been passed to allow
employers to test their employee for on-the-job drug
or alcohol abuse, the odds an individual may be
subjected to a drug test have increased markedly in
today’s society. Whether required by a government
agency or a private employer, drug tests are being
used, and in some cases, are mandatory, in order to
either screen an individual for drugs or as an
incentive to keep an individual from using drugs. The
more these tests are required, the more Americans
become accustomed to them. It follows that when more
Americans become accustomed to drug testing, then
those tests will become even more pervasive. Today,
individuals subject to drug testing include government
employees, military personnel, those, involved in the
transportation industry, student athletes, and
countless other employees who consent to drug testing
as a condition of employment and continued employment.
To
this class of individuals, legislators may require
other individuals to submit to drug testing, such as
welfare and other public assistance recipients and
anyone arrested under Federal law. Drug tests are
routinely required as a condition of parole. The
legislature of Louisiana, for example, has expressly
declared a state of emergency to exist in Louisiana as
a result of the “”spiraling increases of abuse of
illegal substances by its citizens” and it further
found that “”such illegal drug abuse presents a
clear and present danger to the health, welfare and
security of the state”. Louisiana has directed its
Commission of Administration to establish a random
drug testing program, beginning on January 1, 1998,
for anyone who receives anything of economic value or
funding from the state. Conceivably, other state or
federal laws may be enacted requiring individuals to
submit to a drug test in order to receive any
government benefit, perhaps to renew a state
driver’s license. Doubtless such plans in their
extreme would be unconstitutional, however, both state
and federal courts have been willing to extend the use
of drug testing for purposes of safety, improved
workplace efficiency, national security and to deter
drug use.
The
Fourth Amendment to the United States Constitution was
designed to protect citizens from unreasonable
searches and seizures conducted by the federal
government. The Fourth Amendment was intended to
protect the personal privacy and dignity of every
citizen against unwarranted intrusions by the
government. A search can be defined as a government
intrusion into an area where a person has a reasonable
and justified expectation of privacy. A seizure may be
defined as the exercise of control by the government
over a person or thing. It is well settled by American
courts that requiring an individual to provide a urine
sample for the purpose of performing a drug or alcohol
test constitutes a search and seizure which implicates
an individual’s fourth amendment right. Depending
upon the facts and circumstances surrounding the
search, it may be unconstitutional to be required to
provide such a sample. The constitutionality of a drug
or alcohol test, the United States Supreme Court has
said, depends upon the,"reasonableness” of the
test. What is reasonable under the Fourth Amendment
depends upon the specific facts and circumstances of
each case. The definition of “”reasonableness”
has evolved over the years and continues to evolve by
decisions made by the country’s judiciary branch.
Certainly, what is reasonable today was not reasonable
twenty or thirty years ago.
The
Fourth Amendment by its terms prohibits only the
federal government from conducting unreasonable
searches and seizures. However, the Fourteenth
Amendment prohibits states from depriving any person
of life, liberty or property without due process and
equal protection of the law. Through this so-called
“”due process” clause of the Constitution, the
United States Supreme Court has determined that most
of the protections of the Bill of Rights, including
the right to be free from unreasonable searches and
seizures, also apply to the states. Consequently,
neither the federal nor any state government or agency
may conduct an unreasonable search or seizure. This
means neither the federal government nor a state
government can conduct an unreasonable drug or alcohol
test.
On
the other hand, there is no constitutional prohibition
for a private individual or organization to conduct
what would otherwise be an unreasonable drug test. For
example, a private employer may require an employee to
submit to a suspicionless drug test as a requirement
of continued employment. Depending upon the facts of
how and why such a test is conducted, an individual
who believes his or her employer has conducted an
unreasonable drug or alcohol test may sue the private
employer for an invasion of the employee’s right to
privacy. An employer may be found civilly liable for
such an intrusion if a judge or jury decided that the
required drug or alcohol test pried upon the private
affairs of the employee in an objectionable manner.
For example, an employer who directly observes an
employee provide a urine sample might be liable for an
invasion of the employee’s privacy. Under current
state and federal law, however, courts are more and
more willing to allow employment-related drug and
alcohol testing. Some states have enacted their own
legislation to guide employer in how and under what
circumstances they may test their employees. Other
states have not enacted any such laws. In those
states, an aggrieved employee may let an arbitrator,
judge or jury decide, as the case may be, as to
whether the employer has unreasonably intruded into a
person’s right to privacy.
Thirty,
or one-hundred years ago, asking an employee to submit
a urine sample as a condition of continued employment
would be unbelievable and most certainly it would be
considered an invasion of the employee’s privacy.
Today, such testing is so commonplace that it
generates almost no opposition. The Wall Street
Journal reported that about 90% of Fortune 200
companies have drug-testing programs. Society now
readily tolerates what would have been considered an
invasion of privacy. The remarkable aspect about
employment drug and alcohol testing is how acceptable
it has become in such a short period of time.
In
1986 while Nancy Reagan was extolling the virtues of
her “”Just Say No” campaign, President Ronald
Reagan signed Executive Order no. 12564. Although this
executive order prohibited Federal employees from
using illegal drugs, the importance of the order was
that it required the head of each Executive agency to
establish an actual drug-testing program for employees
in sensitive positions. The order also set guidelines
for the drug-testing program.
The
key to this order was that only those Federal
employees in "sensitive” positions were to be
tested. Surely drug testing should be permitted, the
reasoning went, if individuals concerned with the
country’s national security were using illicit
drugs. This executive order was signed before the Cold
War ended and before the collapse of the Soviet Union.
Under such circumstances, it seemed all too reasonable
to screen federal employees in key military positions
for drugs. But Reagan’s plan included other types of
workers.
Others
besides government employees in “”sensitive”
positions were permitted to be screened under Ex.
Order 12564. Specifically, there were three instances
where such tests were permitted. First, when there was
a reasonable suspicion that any employee was using
illegal drugs, that individual could be required to
submit to a test. Second an employee in a
“sensitive” position could be tested for drugs or
alcohol as part of a post-accident investigation Last,
employees could be subject to testing as part of a
follow-up to drug or alcohol counseling or
rehabilitation.
After
President Reagan signed Ex. Order 12564, the United
States Congress passed the Drug-free Workplace Act of
1988. The Act neither encourages nor prohibits the
drug testing of employees. However, under the Act,
federal contractors who contract for property or
services of $25,000 or more are required to maintain a
workplace free of illegal drugs. The Act generally
requires federal agency contractors and employers who
received federal grants to certify to the contracting
agency that they will provide a drug-free workplace.
Further, the Act requires the contractors and
employers to notify their employees that drug
manufacture, distribution, possession or use is
prohibited. If a contractor fails to comply with the
Act, the government may suspend payments or terminate
the contract, so the contractor has an incentive to
comply. As will be shown, many states have adopted a
similar version of the Drug-free Workplace Act that
applies to contractors dealing with the state.
After
the Drug-Free Workplace Act of 1988, Congress enacted
the Omnibus Transportation Employee Testing Act of
1991. The 1991 Act was enacted to address alcohol and
drug testing of workers in safety-sensitive positions
throughout the transportation industry. Under the 1991
Act, the Secretary of Transportation is to issue rules
requiring mass transit operators who receive federal
funds to conduct pre-employment, reasonable suspicion,
random and post-accident testing for those employees
responsible for safety-sensitive functions. Congress
ensured compliance with the 1991 Act in its usual way:
those organizations that failed to institute the
testing procedures would lose their federal funding.
The
Department of Transportation has promulgated its
testing rules and they apply to anyone operating
commercial motor vehicles in interstate or intrastate
commerce, which essentially means any commercial motor
vehicle operator. A commercial motor vehicle operator,
in turn, means anyone operating a vehicle with a gross
combined weight of 26,001 pounds, or a vehicle that is
designed to transport 16 or more passengers, or is of
any size but is used to transport hazardous materials.
If a
driver fails a Department of Transportation drug test,
the driver must be immediately removed from performing
safety-sensitive functions. The employee may resume
performing his or her duties only after an evaluation
for substance abuse and compliance with those
treatment recommendations. However, the employer is
free to discharge a driver or mechanic who tests
positive.
Two
of the most important cases that are still relied upon
today examined these early federal drug testing
programs. In Skinner v. Railway Labor Executives
Assoc. and the companion case of Natl. Treasury
Employees Union v. Von Raab, the United States Supreme
Court formed the basis of current employment drug
testing laws. In kinner, the court stated that
performing drug tests upon railway workers served the
compelling government interest of protecting the
public from drug-impaired railway workers and that
those workers have a reduced expectation of privacy.
In Von Raab, the court said that not all United States
Customs agents could be tested for drugs - only those
who carried firearms. The court required employers to
examine whether the employee was in a
“,’safety-sensitive” position in order to
require drug and alcohol testing.
Other
occupations that are highly regulated by the federal
government are also subject to mandatory drug and
alcohol testing. For example, the military has long
tested its members, and the Nuclear Regulatory
Commission tests employees under its purview. The
Commerce Department and Justice Department also test
employees. Basically, if you carry a firearm or work
with sensitive information for the federal government,
you will be subject to drug and alcohol testing.
After
it became commonplace for federal employees to be
given drug and alcohol tests, states started following
suit. Presently, 32 states have enacted employment
drug or alcohol testing laws and while most are fairly
similar in describing how and under what conditions an
employee may be tested, there are also many
variations. For example, some of these laws protect
the employees from workplace testing while others
protect and even encourage employers to conduct
employee tests. Certain states give workers’
compensation premium discounts to employers who adopt
drug and alcohol testing programs while other states
remain neutral or even opposed to employer-mandated
testing. Some states allow an employee to be
discharged for a first-time positive test while others
require the employee to undergo treatment first.
Finally, some states have enacted no employment drug
and alcohol testing laws. In these cases, the
employee’s collective bargaining agreement often
limits the options an employee has. However, in all
states, an employee may have a cause of action against
an employer for an invasion of the employee’s
privacy under extreme cases. What follows is a survey
of each state’s employment drug and alcohol testing
laws and some important cases which indicate how a
state’s highest court has ruled in that area of law.
