K. Drugs and Alcohol Testing

All forms of employee testing raise significant issues of potential violations of an employee's privacy rights. Additionally, due to the enactment of the Americans With Disabilities Act, all such tests are closely scrutinized. With respect to AIDS testing, such tests are permitted only in certain states in limited circumstances where the job involves the public health and safety, such as for food handlers, hospital workers, and people in the military. Most genetic testing is prohibited.

With respect to drug and alcohol testing, some states prohibit such tests but state law varies dramatically. For example, some states permit employee testing with required procedural safeguards to ensure the testing is done in a reasonable and reliable manner with concern for an employee's rights of privacy. Thus, intrusive monitoring of blood and urine testing through the use of closed-circuit cameras is not permitted. Other states permit individual tests where a particular employee is suspected of being under the influence of drugs or alcohol and her impaired state adversely affects job performance. However, in other states, employees who test positive may not be fired if they consent to participate in and successfully complete a rehabilitation program.

Since the law varies so from state to state, is constantly changing, and may even be more stringent as a result of the ADA, speak to a lawyer or representative from the Department of Labor or the EEOC for advice in this area to determine relevant state law. In approximately two-thirds of the states in this country, private employers may implement and conduct drug and alcohol tests provided certain procedural safeguards are followed that minimize potential offensiveness. This typically includes.findlaw adopting a comprehensive testing policy and putting it in writing, periodically reminding employees of the stated drug or alcohol testing policy, reducing the incidence of errors, treating test results carefully (i.e., confidentially) to avoid improper dissemination, and following local, state, and federal laws and decisions.

Perhaps the most important change to occur legitimizing such tests results from the federal Drug Free Workplace Act. This law requires certain employers who do business with the federal government to publish strict statements prohibiting drugs in the workplace and educating employees on substance abuse. It also requires employers to report any workers convicted of workplace-related drug activities and to certify that they will not condone unlawful drug activity during the performance of a contract with a government agency. Companies that fail to follow such rules will be subject to suspension of payments due under their contracts with the federal agency or termination of the contract. Thus, there is a great incentive for companies dealing with the government to comply with the requirements of this law. However, although the law creates a heightened drug-awareness policy, it does not mandate drug testing for employees. Nor does the law explicitly sanction testing.

Counsel Comments:Generally the decision to test is basically an individual choice for private employers.

Tip:If you work for a private employer and are not a member of a union, what concerns should you have when advised that the employer intends to test you for drugs and alcohol? First, it is preferred that you receive advance notice in work rules and policy manuals. For example, the manual should outline the steps management would take when it suspected that an employee was impaired on the job, such as immediate testing, with a description of how the test will be administered and the consequences flowing from a positive result (such as a suspension without pay or discharge for cause). If no such notice was received before the test was administered, you could have a valid claim that your privacy rights were violated, especially when there was no rational reason for asking you to submit to the test (e.g., you were randomly selected) and you were told to take the test without warning.

Even if your privacy rights are not violated, all tests must be administered in a consistent, evenhanded manner. For example, if female employees are being tested and fired as a result of such tests in far greater numbers than male employees, a charge of sex discrimination might be valid under certain circumstances.

How the employer handles the test results is another important consideration. Results must be treated in the same manner as other confidential personnel information. Unwarranted disclosure of this information (even within your company) when made with reckless disregard for the truthfulness of the disclosure, or excessive publication, can allow you to sue for damages. One employee was awarded $200,000 for defamation after her employer internally and externally published written statements regarding drug screening results incorrectly showing a trace of methadone.

Additionally, a firing based on a positive test finding that later proves inaccurate could lead to a multitude of legal causes of action, including wrongful discharge, slander, and invasion of privacy. If the employer fails to hire a reputable testing company or the test results are inaccurate, you can challenge the test on this basis. Thus, recognize that there may be ways to challenge the test results in the event you are fired or treated unfairly. Speak to an experienced lawyer immediately when:

• The test was not administered fairly; i.e., no advance warnings were given or there was inconsistent enforcement;
• The penalty for violations was too severe (e.g., an employee was fired for possessing a small amount of marijuana in her locker but proved she did not smoke the drug on company time);
• The reliability of test procedures and/or results is suspect;
• The employer cannot prove the identity of the illegal drug allegedly found in the test;
• The specimen was not properly identified as belonging to the accused worker;
• No confirmatory tests were made following positive preliminary screening; and
• The company engaged in discriminatory practices relating to its testing procedures.

Recognize that federal workers, employees engaged in security-conscious industries (e.g., those who are required to carry firearms), and employees who handle money or engage in transporting members of the public (bus drivers and train engineers) have fewer legal rights to oppose drug and alcohol tests because of the nature of their jobs. However, even when testing is legal, employers must follow proper procedures to be sure that results are accurate and are not disseminated carelessly. Results should be handled on a strict need-to-know basis, employees should be given an opportunity to explain any result, and the test results should be reconfirmed if possible.

Finally, since former drug users (and current alcoholics) may be characterized as individuals with a former or current disability that does not prevent them from performing the duties of their job, any adverse action (such as discharge) taken may be fought under federal and state discrimination laws, possibly even in the presence of positive test results.

The checklist beginning on page 139 was written by the author to explain employers' rights in this area and is a helpful summary.