Drug Testing: High Court Rules on Testing in the Workplace; Law Still Unclear

Drug testing has long been a murky area for employers. Now the California Supreme Court has just issued its first decision that sheds some light on the issues and makes a sharp distinction between drug testing applicants and testing existing employees. However, although the case has important implications, it isn’t the sweeping clarification employers had hoped for. Here’s what happened in the case-and what it means to both public and private employers.

Broad Drug Testing Program Challenged

The Supreme Court reviewed the City of Glendale’s policy requiring all job applicants who had been offered employment and all current employees approved for promotion to undergo a medical exam. The physical included a urinalysis test for illegal drugs and alcohol.

The City’s program was challenged, not by an applicant or employee, but by a taxpayer. She argued that drug testing was an unreasonable search that violated the individual’s right to privacy.

Testing Applicants OK; Employee Testing Limited

The Supreme Court ruled that Glendale’s drug screening program for job applicants was legal. The court recognized that employers have a legitimate interest in determining whether applicants-for any position, even if not safety related-are currently abusing drugs or alcohol.

Because the City’s drug test was administered as part of a comprehensive post-job-offer medical examination, the court found that it did not unreasonably intrude on an applicant’s privacy.

The court, however, decided it was unconstitutional for the City to drug test all existing employees approved for promotion. In striking down the across-the-board testing policy, the court said the reasonableness of drug testing employees up for promotion depends on the nature and duties of the position they are seeking.

Join us this fall in San Francisco for the California Employment Law Update conference, a 3-day event that will teach you everything you need to know about new laws and regulations, and your compliance obligations, for the year ahead—it’s one-stop shopping at its best.

What This Means to You

It’s unclear just how broad an impact this decision will have. First, the case only dealt with the narrow issue of drug testing by a government employer as part of a medical examination, as opposed to a stand-alone drug test.

Second, there was great disagreement among the judges about drug testing in general. Several, though not a majority, believed that even Glendale’s applicant testing was illegal-leaving open the question of how the court may rule in future drug-testing disputes that may come before it.

Nevertheless, the case has a number of important implications for employers who use drug screening:

1. Applicant drug testing. Public and private employers may require drug urinalysis tests of all applicants for employment or all applicants for a particular type of position.

   Note that under the Americans with Disabilities Act (ADA), the exam (or drug test) may be administered only after a conditional job offer has been made. And it’s probably still permissible to test for drugs without a medical exam, although it’s not entirely clear because the court didn’t address the issue.

    

2. Public sector drug testing of current employees. Even though Glendale’s program was thrown out, the court noted that, under some limited circumstances, public employers can require current employees seeking a promotion or transfer to submit to drug screening. In particular, testing is allowed in cases involving safety-sensitive jobs. And the court said a current employee may also be tested if you have clear evidence for suspecting the person is currently using illegal drugs.

    

3. Private sector drug testing of current employees. The court implied, but didn’t specifically rule, that across-the-board testing by private employers of existing workers up for promotion or transfer might violate employee privacy rights if the new position is not safety-related. So the most conservative approach is to require a drug test only in situations where an existing employee is seeking a safety-sensitive job.

    

4. Drug testing in the least intrusive way. Both public and private employers doing pre-promotion drug screens for safety-sensitive jobs should consider having the test done in connection with a legally permitted medical exam. That’s because the court felt that if someone was already undergoing a physical, a drug test at the same time would not be a significant intrusion into their privacy. It’s not clear whether the court would approve a stand-alone drug test for employees up for promotion or transfer.