10/26/2007

We think that drug use in our company might be growing, and management wants to institute a broad, random testing policy with a zero-tolerance standard. I believe that random testing might be a privacy violation in California. Is it advisable to have a random testing policy? — Martin, HR Manager in Walnut Creek

Individuals in California have a right to privacy guaranteed to them in Article I, Section 1, of the California Constitution. That privacy right is implicated when an employer wishes to test its employees for drugs. When looking at the permissibility of drug testing, courts balance the invasion of the privacy of the individual being tested against the employer's interest in conducting the testing, and determine which interest outweighs the other given the circumstances.

There are two major cases in this area: Loder v. City of Glendale and Hill v. NCAA. The California Supreme Court in the Loder case ruled that an employer may require job applicants to be tested for drugs as part of a pre-employment physical required of all applicants without violating the California Constitution. The court did not reach the issue of whether drug testing current employees violated the California Constitution because it found that testing of public employees without regard to the nature of the job in question was a violation of the federal Constitution's Fourth Amendment.

In the Hill case, the California Supreme Court laid out the elements that must be weighed in determining whether drug testing of employees is permissible. Those include the employee's reasonable expectation of privacy, the employer's special interests, and any public interest that arises in the particular setting. To determine whether an employee has a reasonable privacy expectation, courts should review the practices, customs, and setting of the employment, the amount of advance notice of the drug testing given to the employee, how much discretion supervisors have in choosing employees to be tested, the degree of intrusion involved in obtaining the sample to be tested, and the safeguards in place for protecting the confidentiality of the drug testing process.

Some programs for random employee drug testing have been upheld under these criteria. For example, in one case, the employer required employees in safety-sensitive positions to be subjected to random drug testing. The testing was upheld because the employer did the following: gave employees six months' notice of the program, offered employees the opportunity to get counseling and treatment during that six months without risking termination, and then used a computerized system to randomly select which employees were to be tested once they implemented the program. In other cases in which employees' rights weren't given as much consideration, courts have found employee drug testing to be improper.

Given the balancing test that must be done and all of the factors considered in the law, implementing a random drug testing program in the workplace is risky. An employer that wishes to institute such a program should at a minimum limit it to employees in safety-sensitive positions, such as drivers and equipment operators, and make sure that employees have adequate notice before the program is launched.

Drug testing based on "reasonable suspicion" that an employee is engaging in drug use is more likely to be upheld. Reasonable suspicion might be based on observation of an employee exhibiting behavior or symptoms that indicate that she or he is under the influence, a pattern of erratic behavior or abnormal activity, or credible information that is corroborated separately. An employer's drug testing policy should put employees on notice that they will be tested if a reasonable suspicion arises that they are using drugs, and the employer should make sure that it can articulate a credible basis for its suspicion before subjecting an employee to a test. If a court finds that the employer did not have a reasonable suspicion under the circumstances, the drug test is looked at as a random drug test that violates privacy rights. Also, if there is no suspicion that an employee is impaired while on duty, a test based on off-duty conduct is likely to be deemed an invasion of privacy. Additionally, employers should make sure local ordinances don't restrict drug testing in the workplace before implementing a program even for reasonable suspicion testing. Some cities bar drug testing of employees except under very limited circumstances.

Employers that wish to implement a drug testing policy should prepare a written policy that prohibits being under the influence of or using drugs or alcohol at work. Employers should also explain to employees, in writing, why a drug testing program is needed. Examples include the need to ensure a safe workplace, the need to ensure the protection of confidential information, and the need to protect the safety of customers or clients. The policy should be part of the employee handbook or personnel policy manual and posted on bulletin boards. The policy should be announced to employees before it's implemented, ideally in a meeting that allows the employees an opportunity to ask questions. The employer should limit the people who may decide that an employee should be tested and, perhaps, require an additional level of approval before requiring an employee to be tested. Before the testing is done, the employer should obtain the employee's consent on a written form, which should also allow the test results to be released to appropriate management officials. Such a consent form should outline the consequences of a refusal to agree to be tested. For example, it could say, "I understand and acknowledge that if I decline to sign this consent form and decline the drug testing, my employment may be terminated."

Given the various legal issues surrounding drug testing in the workplace, employers would be well advised to have their employment counsel review any drug testing policy and procedures that they are considering before implementation.

—Sandra Rappaport, Esq., is a partner at the San Francisco office of law firm Hanson, Bridgett, Marcus, Vlahos & Rudy.

Want more information on how to successfully implement a testing program and substance abuse policy at your workplace? Join the Employer Resource Institute (the same people who bring you the award-winning California Employment Law Answers) for a 90-minute audio conference, "Substance Abuse Programs: How to Keep Your Employees—And Your Workplace—Safe and Drug-Free," on Wednesday, November 28. Our expert—an occupational physician and human resources professional—will guide you through who you can lawfully test, how to structure an effective testing program, how to protect yourself against allegations of wrongful testing or bias, and much more. To learn more about the audio conference, click here.

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