Drug Testing & Your Right To Privacy
“The impairment of individual liberties cannot be the means of making a point […] symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search.”
These words, spoken by U.S. Supreme Court Justice Scalia in his dissenting opinion in National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), underline the importance of rejecting random drug testing of employees to combat the drug problem facing this nation. But unfortunately, suspicion less drug testing of employees, especially in the private sector, has been steadily growing since 1986. According to a recent survey of 1,000 companies performed by the American Management Association, 51.5% of the respondents engaged in some form of drug testing, representing a net increase of 140% since 1987.1 In spite of the serious consequences that can flow from this increasingly widespread practice loss of privacy, damage to reputation, unemployment, emotional distress drug testing in the private sector workplace is virtually unregulated. Only a handful of states has enacted protective legislation. In the vast majority of jurisdictions, private employers are free to test anyone for any reason, or for no reason at all.
There are more effective, constitutional ways to address substance abuse in the workplace, including education and treatment of employees. Already, the growing awareness of health concerns, and drug education and prevention programs have contributed to a decline in drug use in this country. Drug usage peaked in 1979 and has been falling steadily ever since.2 Americans using drugs at least once a month fell 37 percent between 1985 and 1988.3
Indiscriminate drug testing is both unfair and unnecessary. It is unfair to force workers who are not even suspected of using drugs, and whose job performance is satisfactory, to “prove” their innocence through a degrading and uncertain procedure that violates personal privacy. Such tests are unnecessary because they cannot detect impairment and, thus, in no way enhance an employer’s ability to evaluate or predict job performance. In jobs where impairment of performance might directly affect safety and where employees work away from supervision, easy to use tests which actually measure impairment are available to employers.
Questions And Answers: Drug Testing In the Workplace
If you don’t use drugs, you have nothing to hide—so why object to testing?
Drug testing allows employers to intrude upon the private lives of their employees. The “right to be left alone” is, in the words of the late Supreme Court Justice Louis Brandeis, “the most comprehensive of rights and the right most valued by civilized men.” Both the actual taking of urine samples and the analysis of the sample, which may disclose private information, violate this right to be left alone.
As stated by the Court of Appeals for the Fifth Circuit, “there are few activities in our society more personal or private than the passing of urine.”4 The drug testing process subjects individuals to an offensive and degrading process. Some employers even require the employee to strip and urinate into a cup in the presence of an observer in order to prevent cheating.
In addition, analysis of a person’s urine can disclose many details about that person’s private life other than drug use, including personal medical information. It can tell an employer whether an employee or job applicant is being treated for a heart condition, depression, epilepsy or diabetes. It can also reveal whether an employee is pregnant. Drug testing may “provide employers with a periscope through which they can peer into an individual’s behavior in her private life, even in her own home […]”5 For all of these reasons, the Supreme Court has found that urine testing, like blood testing, constitutes a search under the Fourth Amendment.6
Don’t employers have the right to run a safe and productive workplace?
Of course they do. If employees cannot do the work, employers have a legitimate reason for disciplining or dismissing them. But drug tests do not measure job performance. Even a confirmed “positive” provides no evidence of present intoxication or impairment; it merely indicates that a person may have taken a drug at some time in the past.
Urine tests cannot determine when a drug was used. They can only detect the “metabolites,” or inactive, leftover traces of previously ingested substances. Drug testing can detect marijuana that was consumed even weeks before the test date. For example, an employee who smokes marijuana on a Saturday night may test positive the following Monday, long after the drug has ceased to have any effect. In that case, what the employee did on Saturday has nothing to do with his or her fitness to work on Monday. At the same time, a worker can snort cocaine on the way to work and test negative that same morning. That is because the cocaine has not yet been metabolized and will, therefore, not show up in the person’s urine.
Are drug tests reliable?
No, the drug screens used by most companies are not always reliable. Commonly used drug tests yield false positive results at least 10 percent, and possibly as much as 30 percent, of the time.7
Unreliability also stems from the tendency of drug screens to confuse similar chemical compounds. For example, codeine and Vicks Formula 44-M have been known to produce positive results for heroin, Advil for marijuana, and Nyquil for amphetamines. Other substances known to cause false positives include Nuprin, Contac, Sudafed, certain herbal teas and poppy seeds.8
Although more accurate tests are available, they are expensive and infrequently used. And even the more accurate tests can yield inaccurate results due to laboratory error. In October, 1990, the National Institute on Drug Abuse launched an investigation into the widely used federal drug testing procedure after learning that a government-certified laboratory incorrectly reported workers had tested positive for illegal methamphetamine when in fact they had been using over-the-counter cold or asthma medicines.9
Still, isn’t universal testing the best way to catch drug users?
Perhaps, but it is also the most un-American way. Americans have traditionally believed that general searches of innocent peo are unfair. This tradition began in colonial times, when King George’s soldiers searched everyone indiscriminately in order to uncover those few people who were committing offenses against the Crown. Early Americans deeply hated these general searches.
After the Revolution, when memories of the experience with warrant less searches were still fresh, the Fourth Amendment was adopted. It says that the government cannot search everyone to find the few who might be guilty of an offense. Before a personal search can take place, the government must have good reason to suspect the person is concealing something illegal. The same rights to privacy and bodily integrity ought to be extended to private sector employees as well.
Furthermore, there is no scientific evidence whatsoever that drug testing programs deter, prevent, or treat drug abuse. Drug use is a complex problem, and drug testing has been introduced as an unproven and probably unrealistic quick fix.10 According to the American Society for Clinical Pharmacology, “adequate scientific studies of the relationship among safety, productivity, drugs of abuse and testing of urine aren’t available or haven’t been done.”11
Drug use costs industry millions of dollars in lost worker productivity each year. Don’t employers have a right to test as a way of protecting their investment?
Actually, there are no clear estimates of the economic costs to industry resulting from drug use by workers. Proponents of drug testing claim the costs are high, but they have been hard pressed to translate that claim into real figures.12 And some who makesuch claims are manufacturers of drug tests, who obviously stand to profit from industry-wide urinalysis. A 1990 study by the U.S. Department of Labor was unable to determine conclusively that workplace drug abuse is having a detrimental impact on many aspects of employment.13
Furthermore, reports that drug testing programs have led to reductions in workplace accident rates leading to savings to industry are sometimes misleading. For example, a consultant hired by the Georgia Power Company reported, to some fanfare, that there had been a decrease in the accident rate because of extensive drug testing. Georgia Power’s accident rates at its nuclear plant per 200,000 man-hours each year did decline as follows:
- 1981 – 5.41
- 1982 – 2.09
- 1983 – 0.91
- 1984 – 0.61
- 1985 – 0.49
But drug testing did not begin until the Spring of 1984, after the greatest decline in accidents had already occurred. Drug testing could hardly be termed a “significant contributing factor,” as was asserted, in reducing Georgia Power’s accident rate.14
Several organizations, including the United States Post Office, have attempted to measure the relationship between drug testing and job performance by testing all applicants, hiring even those who failed, and then evaluating their job performance sometime later. These studies, published by the National Institute on Drug Abuse, show that there is little, if any, relationship between drug test results and future job performance.15
Is hair testing for drug use a preferable alternative to urine testing?
Advocates of hair testing assert that since this process is less intrusive, it surmounts the privacy concerns surrounding urine testing while providing employers with a means to ensure a drug-free workplace. Hair testing, however, suffers from many of the problems associated with urine testing.
While the collection of a hair specimen may not offend privacy to the same extent as urine collection does, the subsequent testing of the hair enables employers to learn a great deal about an individual’s medical history. Many legal drugs detectable by hair testing are used to treat expensive illnesses, like AIDS and heart conditions. Employers may be tempted to use hair testing to deny employment to people with these conditions. Because it enables employers to learn such personal medical information about employees, hair testing, like urine testing, is a serious invasion of privacy.
According to a recently released policy statement by the Food and Drug Administration (FDA), “the consensus of scientific opinion is that hair analysis…for the presence of drugs of abuse is unreliable and is not generally recognized by qualified experts as effective.”16
How can employers provide a safe and productive workplace without impinging on employee privacy rights?
New computer-assisted tests can provide employers with the means to insure that their workers are able to safely perform their jobs without intruding upon their privacy. Such tests measure hand-eye coordination and reaction time. The employee is required to keep an electronic pointer, which is continually straying off course, in the center of a computer screen. The straying accelerates until the employee can no longer keep the pointer centered. Each employee’s performance is measured against his or her previously established base line.17
Unlike urine tests, such “critical tracking tests” yield information that is actually useful to the employer. Impaired functioning, whether because of drug use, illness, anxiety or fatigue, can be detected without violating anyone’s privacy. Although both NASA and the Air Force use these tests on test pilots, few businesses have opted to use them. But the few that have are happy with the results. As one employer explained, “I think most of the employees like the idea that we’re judging them on their performance rather than on what they might have been doing a couple of nights ago. I like it because it’s practical.”18
Current legal status of workplace drug testing
Summary
The state of the law with respect to drug-testing in the workplace is still evolving. In the public employment sector, numerous challenges to mandatory drug testing programs have been mounted by both public employee labor unions and the ACLU. Those challenges have generally asserted that urine testing not based on probable cause, or, at least, reasonable suspicion, violates government employees’ Fourth Amendment rights. Such claims were often successful in the lower federal courts19 until March, 1989 when the United States Supreme Court issued its first two decisions in the drug testing area. (See below).
A handful of states have enacted laws prohibiting the random drug testing of employees in both the public and private sectors. (See below). However, in most states, private sector employees are still afforded no protection from the abuses of inaccurate and indiscriminate drug testing. More state laws regulating employee drug testing in the private sector are needed to protect employees’ rights to privacy and fair treatment.
The Supreme Court’s Decisions
On March 21, 1989 the U.S. Supreme Court handed down its first drug testing decisions upholding two testing programs: the Federal Railway Administration’s testing of entire train crews following certain accidents or incidents,20 and the U.S. Customs Service’s testing of current employees who applied for promotions into certain positions.21 While the factual circumstances of these decisions were narrow, the Court’s language was very broad and, in essence, authorized the suspicion less testing of millions of government workers.
Although the Court concluded that urine drug tests were searches that must comport with the Fourth Amendment’s “reasonableness” requirement, the majority in both cases also departed from precedent and concluded that “neither a warrant, nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance.” The majority went on to hold that where the government could demonstrate “special needs” it could subject its workforce to suspicion less personal searches, i.e., drug tests.
In a blistering dissent, Justice Marshall challenged this new “special needs” test, charging that it left the Fourth Amendment “devoid of meaning, subject to whatever content shifting majorities concerned about the problems of the day choose to give that supple term.” The dissenters recalled similar widespread public scares that created constitutional problems in the past, like the internment of Japanese-Americans during World War II and the loss of free speech during the McCarthy period of the 1950s.
Because the decisions were so broadly written, a large percentage of government employees not suspected of drug use may be subjected to drug tests. In his dissent to the majority opinion in the Von Raab decision, Justice Scalia lamented the breadth of the decision: “Vast numbers of employees will now be exposed to this needless indignity,” he wrote. He noted that the broad, public safety rationale of the majority could lead to the suspicion less testing of “automobile drivers, construction workers, and school crossing guards.”
While not all of Justice Scalia’s predictions have yet been realized, some random drug testing programs in the public sector have since been upheld by the lower courts. The Supreme Court’s insensitivity to the privacy rights of government employees underscores the critical role state legislatures must play in protecting those rights.
Post-Skinner/Von Raab Drug Testing Decisions
Since the Supreme Court decisions, courts across the country have been grappling with numerous challenges to drug testing programs in government workplaces. Although the case law is still evolving, some trends have emerged.
In general, federal courts are upholding random drug testing programs for the following kinds of jobs:
- Those implicating public safety: E.g., motor vehicle operators, locomotive engineers, aircraft pilots and boat operators working for Department of the Navy (AFGE v. Cheney, _____ F.Supp. ______ (N.D.Ca., 1990)); but not pathology technicians, diagnostic radiology technicians and dental hygienists (AFGE v. Cheney).
- Those requiring the carrying of firearms: E.g., prison guards (Taylor v. O’Grady, 888 F.2d 1189 (7th Cir., 1989)); police officers (Brown v. City of Detroit, 715 F.Supp. 832 (E.D. Mich., 1989)).
- Those with access to highly classified information: E.g., Department of Justice lawyers who hold top secret national security clearances (Harmon v. Thornburgh, 878 F.2d 484 (D.C. Cir., 1989), cert. den., 110 S.Ct. 865 (1990)).
The courts are, in general, not permitting the blanket testing of entire workforces. For example in Burka v. New York City Transit Authority,______F.Supp._____(E.D.N.Y., 1990), a federal district court threw out a drug testing program that was too all-encompassing and included employees whose jobs did not have a nexus with public safety. Similarly, in Transportation Institute v. U.S. Coast Guard, 727 F.Supp. 648 (D.D.C., 1989), the federal district court struck down the drug testing program for shipboard cooks, mess men and cleaners.
Private Employment Case Law
Few courts have afforded private sector employees protection against random drug testing. To date, there have only been a handful of cases won by private sector employees who either refused to take the test on privacy grounds and were fired, or whose test results were inaccurate. In most states, courts have ruled that the employment-at-will doctrine outweighs employees’ privacy rights. Only in California has the highest state court held otherwise. In that state private sector employees (but not job applicants) have been found to be protected by the right to privacy contained in the state constitution.22
State Legislation
A handful of states have enacted laws restricting drug testing in the private sector. Maine, Vermont, Rhode Island, Connecticut, Montana, Minnesota, Iowa, and Hawaii have adopted laws that limit the circumstances under which employees can be required to submit to drug tests. Louisiana, Maryland, Nebraska, Oregon and Utah have adopted legislation that regulates drug testing in some fashion.
The laws of Connecticut, Iowa, Maine, Minnesota, Montana and Vermont restrict job applicant testing. Those same states and Rhode Island limit testing of current employees to those actually suspected of using drugs to the detriment of their job performance. Connecticut, Iowa, Maine, Minnesota and Montana further limit testing to employees holding safety-sensitive jobs.
For example, Iowa’s Act to Regulate the Circumstance and Procedure Under Which an Employer May Request a Drug Test of An Employee or an Applicant for Employment (Iowa Code Ann. 730.5) permits testing if there is “probable cause to believe that an employee is in a position where such impairment presents a danger to the safety of the employee, another employee, a member of the public, or the property of the employer, or when impairment due to the effects of a controlled substance is a violation of a known rule of the employer.”
The Maine law, An Act Relating to Drug Testing (Maine Rev. Stats Sec. 681) requires employers with more than 20 employees to establish an employee assistance program and develop a written policy before conducting drug testing. Testing must be conducted in a medical facility under the supervision of a physician and the employee or job applicant has a right to conduct his or her own test of a separate sample of urine collected at the time of the initial test. In Maine pre-employment tests can be required only if an applicant has been offered employment or a position on an eligibility roster. Employees may be tested if there is probable cause which is stated in writing. Random testing is only permitted if it has been agreed to in a collective bargaining agreement or if, “The employee works in a position the nature of which would create an unreasonable threat to the health or safety of the public or the employee’s co workers if the employee were under the influence of a substance of abuse.”
In addition, some states have passed laws solely addressing the issue of drug testing of public sector employees. They include Florida, Georgia, Kansas, South Dakota, and Tennessee.
Summary of Model Statute
The model statute, which aims to prevent drug testing abuses in the workplace, contains the following key provisions:
- Notice: The employer is required to notify employees in writing of the employer’s drug testing policies.
- Employee Testing: An employee can be drug tested only if the employer has reasonable suspicion that he or she is under the influence of alcohol and/or other drugs.
- Applicant Testing: A job applicant can be drug tested only if the employer has reasonable suspicion that the applicant is under the influence of alcohol and/or other drugs.
- Impairment Evaluation Procedure: Before a drug test can be administered, a drug recognition expert must physically examine and interview the employee or applicant to determine if a drug test is warranted.
- Providing the Sample: Under no circumstances may an individual be observed while providing a urine sample.
- Laboratory Requirements: Only laboratories certified by the Alcohol Drug Abuse and Mental Health Administration (ADAMHA) may conduct drug tests.
- Right to a Hearing: Employees have the right to a hearing to contest the employer’s right to test, the accuracy of the test or personnel decisions based on the test.
- Rehabilitation and Treatment: The employer must provide drug abuse assessment and an opportunity for treatment if treatment is recommended, and the cost of treatment is equally divided between employer and employee.
- Confidentiality of Test Results: Information concerning a drug test cannot be released without the written consent of the employee.
- Remedies for Violations: Any aggrieved person can bring a civil damages action in court, and anyone who knowingly violates the law may be guilty of a misdemeanor.
Model Statutes23
1. Policy
It is the policy of the State:
1.1. to implement effective measures to eliminate alcohol and other drug abuse that threatens health and safety in the workplace;
1.2. to encourage rehabilitation of employees who are accurately identified as abusers of alcohol and/or other drugs so that they may continue or resume employment;
1.3. to ensure that all citizens enjoy the full benefits of the rights to privacy and due process of law, and the protection against unreasonable searches and seizures guaranteed by the Constitution of the United States and of this State.
1.4. to establish that Employers do not have a legal duty to require alcohol or other drug tests authorized by this Act.
2. Purpose
It is the purpose of this Act:
2.1. to protect employees against inquiry and investigation into conduct and activities that happen outside work and that are not directly related to the actual performance of job responsibilities;
2.2. to regulate the circumstances and procedures under which an employer may request a drug test of an employee or applicant for employment;
2.3. to ensure that an employee with a substance abuse problem receives an opportunity for rehabilitation and treatment of the disease.
3. Definitions
3.1. “Applicant” means any person who is offering services for compensation to any employer located and/or doing business within the geographic boundaries of the state.
3.2. “Drug” means any substance classified as a Schedule I or II controlled substance by the Drug Enforcement Administration; its metabolites; and alcohol.
3.3. “Drug Recognition Expert” means a person trained to detect the patterns of behavioral and physiological symptoms associated with major drug categories.
3.4. “Employee” means any person who is rendering services for compensation to any employer located and/or doing business within the geographic boundaries of the state, including those persons hired to work outside the state.
3.5. “Employer” means a person or entity located and/or doing business in this state and includes the state and all political or other governmental subdivisions of the state. Small employers, i.e., those employing fewer than fifteen (15) employees, shall be exempt from the following sections: 5.4-5.10; 6.6 6.7; 8; 9; 10.1 and 10.5-10.8; 11.3.7; 12; 13; 14; 15 and 17.
3.6. “Qualified Drug Treatment Counselor” means a person certified by the state to provide counseling for alcohol and/or other drug abuse.
3.7. “Qualified Drug Treatment Program” means a program or institution certified or licensed by the state to provide treatment and/or rehabilitation for abuse of alcohol and/or other drugs.
3.8. “Reasonable Suspicion” means a basis for forming a belief based on specific, articulable facts and rational inferences drawn from those facts.
3.9. A “Sample Collection Site” means a medical facility supervised by a licensed physician or nurse. A medical facility may be a first aid station located at the work site.
3.10. “Test” means any procedure or protocol used to analyze body fluid or human tissue to determine whether an individual has used or is using alcohol and/or other drug or drugs.
4. Home rule authority preempted
No municipality may enact any ordinance under its home rule authority regulating an employer’s use of tests for alcohol and/or other drugs that violates any provision of this statute.
5. Notice to Employees
Each employer shall provide each employee, who may be subject to tests for alcohol and/or other drugs, at the time of hire, and at least once a year, with a statement which sets forth:
5.1. the grounds on which an employee may be required to submit to a test;
5.2. a list of all drugs for which the employer may test;
5.3. the consequences of refusing to submit to a test;
5.4. the retest procedure for challenging disputed test results;
5.5. the appeal procedure for challenging the determination to test;
5.6. a statement regarding any applicable collective bargaining agreement or contract;
5.7. information on opportunities for assessment and rehabilitation relating to the abuse of alcohol and/or other drugs;
5.8. the notice, testing, and re-testing requirements established in this Act;
5.9. an explanation of the confidentiality provisions established in this Act; and
5.10. the remedies available to the employee for violations of this Act.
6. Drug testing for employees
6.1. An employer may require that an employee submit to a drug test if the employer has reasonable suspicion that he or she is under the influence of alcohol and/or other drugs.
6.2. The employer shall pay the costs of all drug tests which are required by the employer.
6.3. An employer may not conduct random or uniform drug testing of employees.
6.4. Reasonable suspicion shall be based on:
6.4.1. observable phenomena, such as the direct observation of use of, and/or the physical or behavioral symptoms of being under the influence of, alcohol and/or other drugs; or
6.4.2. evidence that the employee is involved in the use, possession, or sale of alcohol and/or other drugs while working. Such evidence shall not include information received from an anonymous informant.
6.5. The employee’s immediate supervisor, or other supervisory personnel in direct contact with the employee, shall make the determination of reasonable suspicion.
6.6. Prior to administering the test, the employer must provide the particular employee with a written statement describing the objective facts and inferences that are grounds for the test.
6.7. If an employee admits to being under the influence of alcohol and/or other drugs no test may be administered. The employee shall be referred to an Employee Assistance Program as defined in 17. 6.8. An employer may not require that a blood sample be drawn for the purpose of administering a drug test.
7. Drug testing for applicants
7.1. An employer may require that an applicant submit to a drug test if the employer has reasonable suspicion that he or she is under the influence of alcohol and/or other drugs.
7.2. The employer shall pay the costs of all drug tests which are required by the employer or this statute.
7.3. An employer may not conduct random or uniform drug testing of applicants.
7.4. Reasonable suspicion shall be based on observable phenomena, such as the direct observation of the use of, and/or the physical or behavioral symptoms of being under the influence of, alcohol and/or other drugs.
7.5. Prior to administering the test, the employer must provide the particular applicant with a written statement describing the objective facts and inferences that are grounds for the test.
7.6. An employer may not require that a blood sample be drawn for the purpose of administering a drug test.
8. Procedure for requiring a drug test
If an employee’s immediate supervisor, or other supervisory personnel in direct contact with the employee or applicant, has reasonable suspicion that he or she is under the influence of alcohol and/or other drugs, that person may be required to submit to a drug test only after the completion of the following procedure:
8.1. The supervisor must provide the particular employee or applicant with a signed written statement describing:
8.1.1. the objective facts and inferences that are the grounds for the test;
8.1.2. the right of the employee or applicant to request a hearing to challenge the determination to test, and the procedures for requesting such a hearing as defined in 13.
8.2. The person to be tested shall sign a statement which indicates that he or she was given the statement required by 8.1.
8.2.1. An employee or applicant’s refusal to sign such a statement shall not bar an employer from administering a test, nor invalidate the results of such a test.
8.3. The person to be tested will be escorted to a sample collection site, where he or she will be evaluated by a drug recognition expert (DRE) to determine if a drug test is necessary.
9. Impairment evaluation procedure
9.1. Interview – The DRE will conduct a brief interview with the person to be tested concerning his or her performance, and may include questions regarding recent eating and sleeping patterns, personal problems, use of prescription drugs, and recent use of alcohol and/or other drugs. During this interview the DRE will evaluate the alertness and responsiveness, speech characteristics, mood, attitude, cooperativeness, etc. of the person to be tested.
9.1.1. The person to be tested must be advised that he or she is not required to answer any questions.
9.2. Physiological symptoms – This includes measuring the pulse rate (three times during the examination), blood pressure, oral temperature, pupil size, pupillary reaction to light and dark, nystagmus (horizontal and vertical), smoothness of visual pursuit, perspiration, condition of the tongue, and salivation.
9.3. If, based on the evaluation, the DRE believes the employee or applicant to be impaired, a drug test may be administered.
10. Administering a Drug Test
10.1 The person to be tested shall be given written notice of:
10.1.1. the substances to be tested for;
10.1.2. the right to request a retest;
10.1.3. the consequences of refusing to take the test;
10.1.4. the right to refuse the test and seek rehabilitation through an Employee Assistance Program;
10.1.4.1. This section shall not apply to applicants.
10.1.5. the consequences of a positive test result;
10.1.6. the availability of an appeal procedure to challenge the determination to test and/or disputed test results.
10.2. The person to be tested shall be given:
10.2.1. a medication disclosure form to permit the employee or applicant to disclose any non prescription or prescription medications that have been taken within the last forty-five days which may result in a positive test result, and
10.2.2. a statement that the form shall be submitted directly to the testing laboratory in order that the employer has no access to the information disclosed on the form.
10.3. The procedure for submission of the form shall ensure that no person other than the testing laboratory has access to the information disclosed on the form.
10.4. Under no circumstances may an individual be subject to observation in any manner while providing a urine sample.
10.5. The person tested must be provided with an opportunity to have a blood sample drawn at the time the urine sample is to be provided.
10.5.1. If the person tested requests that a blood sample be taken, the employer may not test any other sample from the employee.
10.6. The employer shall establish procedures to assure that the sample provided is labeled properly and identified as that of the employee or applicant throughout the testing process. In any lawsuit brought under this Act, the employer shall bear the burden of proving chain of custody.
10.7. The employer shall ensure that all positive samples are preserved in a condition that will permit accurate retesting for a period of not less than ninety days.
10.8. An employer may not conduct testing of its employees or applicants for the presence of alcohol or other drugs using a laboratory owned by the employer; except that one agency of the state may test the employees or applicants of another agency of the state.
11. Test Results
11.1. A laboratory may report to an employer that a urine sample is positive only if both the initial test and confirmatory test are positive.
11.1.1. Initial tests must be confirmed by means of chromatography spectrometry or technology recognized as being at least as scientifically accurate as determined by the National Institute of Drug Abuse.
11.2. Test results shall not be reported in numerical or quantitative form, but shall state only that the test result was positive or negative, unless the person tested requests such a report.
11.3. The employer shall provide the person tested with a report of the drug test results that includes the following information:
11.3.1. the type of test conducted for both initial screening and confirmation;
11.3.2. the name and address of the laboratory that performed the test;
11.3.3. the results of each test;
11.3.4. the rate of false positive and false negatives known for each test;
11.3.5. the cut-off measure used to distinguish positive and negative samples on both the screening and con firmation tests;
11.3.6. any other information provided by the laboratory to the employer concerning that person’s test;
11.3.7. the right to appeal the test results;
11.3.8. the right to have the sample retested at a different laboratory.
11.4. In the event of a negative test result, the employer shall destroy within 30 days all records, reports and other documents in its possession related to the test and shall not thereafter make reference to the test in any employment related proceedings.
11.5. If an employee has successfully completed treatment for drug and/or alcohol abuse, the employee’s personnel records shall be expunged of any reference to drug tests or their results when the employee leaves employment.
11.6. Test results and other information acquired in the testing process may not be disclosed to another employer or to a third-party individual, government agency, or private organization without the written consent of the person tested.
11.7. Test results and other information acquired in the testing process may not be used as evidence in a criminal action against the person tested.
12. Consequences of a Positive Test Result
In the event of a positive test result the employee shall be referred to a qualified drug abuse counselor to determine if treatment for abuse of alcohol and/or other drugs is indicated. If treatment is indicated, the employee will be referred to a qualified drug treatment plan.
13. Right to a hearing
Persons selected for testing shall have the right to a hearing to contest the employer’s right to test, the significance and accuracy of the test, or the employer’s personnel decisions based on the test. This right must be exercised within 7 days after receipt by the employee of the final test results and any resulting disciplinary action.
13.1. A person exercising his or her rights under this section shall be afforded a hearing before a panel comprised of three persons who were not involved in the initial determination to test. The members of the review panel shall consist of:
13.1.1. one person selected by the employer;
13.1.2. one person selected by the person tested; and
13.1.3. one person, not employed by or associated with either the employer or the person tested, designated by an accredited mediation or arbitration service.
13.2. The person requesting the hearing shall have the right to confront and cross-examine witnesses.
13.3. The employer shall bear the burden of proving by a preponderance of the evidence that:
13.3.1. reasonable cause existed to require the test;
13.3.2. chain of custody was adequate;
13.3.3. the sample was properly handled.
13.4. The laboratory shall bear the burden of proving by a preponderance of the evidence that its procedures insured reliable results.
13.5. An employer may change an employee’s work assignment, or, if a modified assignment is not possible, suspend the employee from active duty with pay pending the decision of the review panel.
13.6. If the review panel determines that reasonable suspicion to test did not exist, or that the accuracy of the test is not certain, the employer shall destroy within thirty days all records, reports and other documents related to the test. The employer shall not thereafter make reference to the test. An employee shall be made whole for any loses suffered by the employee due to actions taken pursuant to 13.5.
13.7. All costs of the appeal will be paid by employer.
14. Opportunity to retest
14.1. The employer shall provide each person who has a positive test result with an opportunity to have a portion of the sample retested at an independent laboratory selected by and at the expense of the person tested.
14.2. A person whose retest is negative shall not be considered to have had a positive test result.
14.3. A person whose retest is negative shall be reimbursed by the employer for the cost of the retest.
15. Disciplinary actions against employees
15.1. An employer shall take no disciplinary action against an employee for drug use the first time the employee’s drug test indicates the presence of alcohol and/or other drugs if the employee undergoes a drug abuse assessment, and if the employee successfully completes treatment if treatment is recommended by the assessment.
15.1.1. An employer may discipline for misconduct, improper performance, or rule violations other than drug use.
15.2. The provisions of this section shall not apply where treatment is not recommended.
16. Laboratory requirements
16.1. All drug testing performed in the state shall be performed by a testing laboratory certified by the Alcohol Drug Abuse and Mental Health Administration.
16.2. Such laboratories must be able to document competency with regard to personnel, quality assurance programs, methodology and equipment, on site confirmation of positive screening tests, security, confidentiality, and expert testimony.
16.3. The director of the laboratory must be a full-time employee of the laboratory and must be certified by the American Board of Forensic Toxicology or the American Board of Clinical Chemistry and Toxicological Chemistry.
16.4. The laboratory must demonstrate satisfactory performance in the proficiency testing program of the National Institute on Drug Abuse, the College of American Pathology, or the American Association for Clinical Chemistry.
16.5. The certification process must include a blind test of at least 10 samples. The laboratory must analyze samples correctly to be certified.
17. Employee Rehabilitation and Treatment
17.1. The employer shall provide drug abuse assessment, and opportunity for treatment if recommended by the assessment, to employees referred for assessment as a result of a positive drug test, and to employees who request such treatment.
17.2. An employee not recommended for treatment after assessment by a qualified drug treatment counselor may not be required to undergo such treatment.
17.3. An employee shall be permitted to select the particular treatment program in which he or she will participate.
17.4. Except to the extent that costs are covered by a group health insurance plan, the costs of treatment shall be equally divided between the employer and employee. If necessary, the employer shall assist in financing the cost share of the employee through a payroll deduction plan.
17.5. The employer shall, whenever necessary for treatment and reasonably possible, permit an employee to:
17.5.1. have a part-time or modified work schedule;
17.5.2. be temporarily reassigned to an appropriate job;
17.5.3. use administrative, sick or vacation leave and leave without pay to obtain treatment.
17.6. An employer may change an employee’s work assignment, or suspend the employee from active duty, when the drug abuse treatment program in which the employee is participating determines that the employee’s drug abuse problem poses a direct threat to the safety of others.
17.7. The results of any substance abuse tests administered to an employee as part of a drug abuse treatment program may not be released to the employer.
17.8. An employer may not administer a drug test to an employee while the employee is undergoing treatment for alcohol and/or drug abuse.
17.9. An employee may not be terminated from employment, or disciplined, for drug use, if the employee successfully completes treatment.
18. Confidentiality
18.1. Any information concerning a drug test administered pursuant to this chapter shall be strictly confidential.
18.2. Release of such information shall be solely pursuant to a written consent form signed voluntarily by the person tested. The consent form must contain, at a minimum, the following information:
18.2.1. the person who is authorized to obtain the information;
18.2.2. the purpose of the disclosure;
18.2.3. the precise information to be disclosed; and
18.2.4. the duration of the consent.
18.3. The information shall not be released or made public upon subpoena or any other method of discovery.
19. Violations of the Act/Remedies
19.1. Any aggrieved person, or the Department of Labor, may enforce the provisions of this Act by means of a civil action against any person, laboratory, or employer, who violates a provision of this Act, or who aids in the violations of a provision of this Act; including the state or any of its subdivisions.
19.2. In any civil action alleging a violation of the Act, the court:
19.2.1. May award punitive damages to a prevailing plaintiff in addition to any award of actual damages for economic, bodily, or psychological harm;
19.2.2. shall award reasonable attorneys’ fees and costs to a prevailing plaintiff and;
19.2.3. may afford injunctive relief against any employer who commits or proposes to commit a violation of the Act.
19.3. An action for injunctive relief may be brought by the aggrieved person, by the Attorney General, or by any person or entity which will fairly and adequately represent the interests of the protected class.
19.4. A person who knowingly commits a violation of 8 through 11, 16, or 18 shall be guilty of a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000) or not more than one year in jail, or both.
19.5. In a civil action alleging that an employer has violated this Act, the employer has the burden of proving that the requirements of this Act were met.
19.6. In a civil action alleging that a laboratory has violated this Act, the laboratory has the burden of proving that the requirements of this Act were met.
19.7. An employer may not retaliate against an employee or applicant for asserting rights and remedies provided in this Act.
20. Employer’s Authority
This Act shall not restrict an employer’s authority to prohibit the non-prescribed use, sale, or possession of alcohol and/or other drugs during work hours, or restrict an employer’s authority to discipline, suspend, or dismiss an employee for being under the influence of, selling or possessing alcohol and/or other drugs during work hours, except as that authority is restricted under this Act.
21. Severability
If any provision of this Act is held to be invalid, such invalidity shall not affect other provisions of this Act which can be given effect without the invalid provision, and to this end the provisions of this article are severable.
Drug testing bibliography
Bohl, Don L. (ed.), Drug Abuse: The Workplace Issues. American Management Association Research Study (New York City, 1987).
DeCresce, Robert, et.al., Drug Testing in the Workplace. Bureau of National Affairs (Washington, D.C. 1989).
Maltby, Lewis L., “Why Drug Testing is a Bad Idea”, in Substance Abuse in the Workplace: Readings in the Labor-Management Issues, (ed. Hogler, Raymond L.). The Department of Labor Studies and Industrial Relations, Pennsylvania State University (1987).
Maltby, Lewis L., “Effectiveness of Drug Testing as Pre-Employment Screen”, (Memorandum, February 21, 1990). American Civil Liberties Union, National Task Force on Civil Liberties in the Workplace,132 W. 43rd Street, New York, NY 10036.
Morgan, John P., M.D., “The ‘Scientific’ Justification for Urine Drug Testing”, Kansas Law Review, 36:683 (1988).
Nova Law Review: Testing for Drug Use in the American Workplace, A Symposium. Vol. II, No. 2. Ft. Lauderdale, Florida (1987)
Zeese, Kevin B., Drug Testing Legal Manual. Clark Boardman Company, Ltd. (New York City, 1990).
NOTES:
11990 American Management Association Survey on Workplace Testing, 4th Annual Survey, available from A.M.A., 135 W. 50th Street, New York, NY 10020.
2 “Any Illicit Drug Use,” chart of drug use from 1975 through 1989, National Institute on Drug Abuse, January, 1990. For information from NIDA call 301/443-6245
3 “National Drug Strategy Report,” The White House, September, 1989, p.1. Available from the Government Printing Office order number S/N 040-000-00542. Call 202/783-3238 to order.
4 National Employees Union v. Von Raab, 816 F .2d 170, 175 (5th Cir. 1987).
5 Jones v. McKenzie, 833 F.2d 335, 339 (D.C. Cir. 1987).
6 See Skinner v. Railway Labor Executive Association, 103 L.Ed. 639, 660 (1989).
7 See Davis, Kenneth H. “Assessment of Laboratory Quality in Urine Drug Testing,” JAMA, Sept. 23/30, 1988, p. 1749; Greenblatt, David J., “Urine Drug Testing: What does it test?”, New England Law Review, 23: 651-666, 1989; Testimony of John P.Morgan, M.D., U.S. Senate Committee on the Judiciary, April 9, 1987.
8 See “Drug Testing Laboratories,” hearing before the House Energy and Commerce Subcommittee on health and the Environment, June 13, 1989 and “Proficiency Standards for Drug Testing Laboratories,” hearings before the House Committee on Government Operations, June 10 and 11, 1987. Both available from the U.S. Government printing Office.
9 Isikoff, Michael, “Federal Drug – Test Method Probed for Possible Flaws,” Washington Post, Oct. 25, 1990, p. A3.
10 Greenblatt, David J., ibid.
11 “Evidence is Skimpy That Drug Testing Works, but Employers Embrace Practice,” Wall Street Journal, Sept. 7, 1989, B1
12 Morgan, John, P., “The Scientific Justification for Urine Drug Testing,” Kansas Law Review, 36:683 697 (1988).
13 U.S. Department of Labor, “Workplace Drug Abuse,” August 2, 1990.
14 For further information on Georgia Power’s drug testing program during construction of Plant Vogtle contact Gene Guerrero, ACLU, 122 Maryland Ave., Washington, D.C. 20002, 202/675-2307.
15 Most of these studies have been reported in professional medical journals which are not readily available in public libraries. For a list of citations, and/or copies of the more relevant articles, contact the ACLU, Dept. of Public Education, 132 W. 43rd St, NY, NY 10036.
16 FDA Compliance Policy Guide #7124.06, released on June 13, 1990.
17 The technology for the critical tracking test was developed by Systems Technology Inc., of Hawthorne, CA., and licensed to Performance Factors Inc., of Emeryville, CA., which markets it as Factor One. For more information, contact Performance Factors, 2000 Powell ST., Suite 1500, Emeryville, CA. 94608.
18 Stevens, William K., “Measuring Workplace Impairment,” New York Times, March 6, 1990, p.C-1.
19 E.g., Feliciano v. Cleveland, 661 F.Supp. 578 (N.D.Ohio, 1987) (random testing of police unconstitutional); Capua v. Plainfield, 643 F.Supp. 1507 (D.N.J. l986) (suspicionless testing of firefighters unconstitutional); Taylor v. O’Grady, 669 F.Supp. 1422 (N.D. Ill. 1987) (suspicionless testing of correctional officers unconstitutional).
20 Skinner v. Railway Labor Executive Assn., 109 S. Ct. 1402 (1989)
21 National Treasury Employees Union v. Von Raab, 109 S. Ct. 1384 (1989)
22 See, Luck v. Southern Pacific Transportation Co., 267 Cal.Rptr. 618 (Cal.Ct.App., 1990), pet. to rev. den., No. SO14832 (Cal.Sup.Ct., May 31, 1990).
23 This model statute was drafted by Jack T. Frolich, a law student of New York Law School and a New York City Transit Authority employee.
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