| Not all employers are subject to the Bill of Rights in the U.S. Constitution. These constraints affect only federal, state, and local government employers and private employers engaged in sufficient "state action" to trigger the Fourteenth Amendment. Purely private employers will be governed by a number of other federal and state laws but not the Bill of Rights.
While constantly evolving, the current law of drug testing holds that public and some private employment testing involves a "search" within the meaning of the Fourth Amendment. If the Fourth Amendment applies to a drug test, neither a warrant nor probable cause to suspect impairment is needed to conduct test, but the test must be "reasonable." This is determined by weighing the test's intrusion on privacy against its promotion of valid interests and by considering the test's justification, scope, and place. In an industry with significant impact on the public welfare or with a history of intense state regulation, random testing is more likely to be considered legal.
Tests will not be voided automatically if they
cannot measure impairment or are not 100 percent accurate. On the other hand,
tests are more likely to be upheld if there are chain-of-custody safeguards,
procedures to ensure the confidentiality of results, back-up tests if an initial
test is positive, and laboratory conditions for giving tests. Neither advance
notice nor employee consent will necessarily validate a test, but such factors
may increase the likelihood of validation. The extent to which a plan limits the
tester's discretion is an important factor, and increased measures to protect
employee privacy also may increase judicial acceptance of the plan.
Given the possibility of a due process challenge stemming from employee drug testing, employers should remember that even at-will employees may have a property or liberty interest in their job -- and thus may be entitled to due process in a disciplinary context -- if the law, company policy, their contract, or verbal assurances have created a reasonable expectation of job security. Employers should advise workers of company rules, including policies governing on-the-job and off-the-job substance abuse. Employers also should advise workers that they are subject to testing either periodically or under specified conditions.
Employers should ensure that testing plans and mechanisms are as reliable as possible. Before firing or disciplining an employee for drug use or for other reasons, the employer should give the employee notice of the reasons for the firing or discipline. When possible, employers should provide a hearing before dismissal.
The constitutional right of privacy has two parts: an interest in autonomy or freedom from unwanted government intrusion in decisions about one's life, and a right to protect intimate facts. Cases have indicated that minor bodily intrusions will be tolerated and that a balancing approach will be used to decide privacy claims. Under that approach, the nature of a test and its need will be considered in light of reliability of the test, conditions under which the test is given, and availability of less intrusive options.
Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |