When it comes to drug testing employees, public employers are subject to different standards than private employers. Public employers, unlike private employers, must take into consideration the restrictions imposed on the government by the United States Constitution.

If a public employer intends to implement some form of drug and alcohol testing, it should first consider who is to be tested and what type of testing is sought. The most common types of drug and alcohol tests are (1) random or periodic tests, (2) tests for employees who are reasonably suspected to be impaired by drugs or alcohol while at work, (3) tests for employees involved in an accident, or (4) tests for all job applicants. This blog addresses only random or periodic tests.

Some public employees are subject to random drug and alcohol testing based upon credentials or special licenses they hold. For instance, employees who hold a commercial drivers license (CDL) are subject to the Federal Department of Transportation Workplace Drug and Alcohol Testing Program. For drug and alcohol tests of those employees, public employers should comply with the procedures in the federal regulations.

For employees not otherwise covered by a statutory drug or alcohol testing program, public employers are limited in their ability to require employees to submit to random or periodic tests. Over the last two and a half decades the United States Supreme Court and the intermediate-level Federal Courts of Appeal have issued several opinions addressing random drug and alcohol testing by public employers.

The Fourth Amendment provides that no person may be subject to an unreasonable search or seizure. The Supreme Court has found that the collection of bodily fluids or breath samples (for drug and alcohol analysis) is a search within the meaning of the Fourth Amendment. Thus, a public employer’s drug and alcohol testing policy must satisfy the Fourth Amendment’s reasonableness standard.

In law enforcement matters, the Fourth Amendment’s reasonableness standard requires a warrant and/or probable cause. In public employment drug and alcohol testing cases, the standard is not that high. Rather, the reasonableness of the test is determined by considering whether the intrusion of the employee’s privacy interest is outweighed by the legitimate government interest. Generally, courts have found that requiring an employee to provide unmonitored urine samples and professional blood draws is a minimal invasion of the employee’s privacy, as compared to the public employer’s strong interest in protecting the public from threats to their safety. Bear in mind that some courts have found that when an employee is required to urinate in the presence of another person (usually done to ensure that the urine is not from a third party), courts consider the testing a more significant intrusion of the employee’s rights. However, if the public employer’s reason for requiring the monitoring is compelling enough, the use of a monitor is generally not enough of an invasion of the employee’s privacy to tip the scales in the employee’s favor.

In order to satisfy the Fourth Amendment’s reasonableness standard, random testing is generally limited to employees who are in safety sensitive positions. Safety sensitive positions are those positions where there exists a high risk of injury to others with “disastrous consequences” if the employee has even a momentary lapse of attention. Some examples of “safety sensitive” positions include armed law enforcement personnel, firefighters, health care professionals responsible for direct patient care, employees who transport passengers, and employees who operate large or heavy equipment. Generally, employees who perform clerical or administrative duties are not considered “safety sensitive” employees, even if they interact with the public.

If you are a public employer and you wish to implement random drug testing, you should adopt a comprehensive written policy that outlines the testing procedures and the consequences of any positive test or other policy violation. You may wish to obtain legal guidance and input in the development of your policy since you may be held liable for monetary damages and attorneys’ fees if your policy does not satisfy the Fourth Amendment’s reasonableness test.

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