drug screening public and private employees€¦ · raleigh, nc mcangus goudelock & courie....

Drug Screening Private and Public Employees

Ben SimpsonRaleigh, NC

McAngus Goudelock & Courie

Drug Screening Private and Public Employees

Ben Simpson

Phone: 919‐719‐8216Email: [email protected]

Private Employees

• Governed by Controlled Substance Examination Regulation Act (CSERA)– Does not require Employers to drug test– Some Limits

• Contract Restrictions• Collective Bargaining Agreements

Private Employees

• CSERA permits drug testing private employees– But must follow certain procedures

• Employers may set up circumstances and conditions to trigger drug testing– Examples:

• Post‐Accident• Random• Safety‐Sensitive• Pre‐Employment• Reasonable Suspicion

Post Accident

• May conduct drug testing• Interplay with a worker’s compensation claim?• N.C. Gen Stat. § 97‐12

– No compensation shall be paid if an injury or death to an employee was caused by intoxication

– Exception: if the intoxicant was supplied by the employer or his agent in a supervisory capacity to the employee

Post Accident, continued

• Injury must be proximately caused by the influence of a controlled substance not prescribed by a medical practitioner

• Must Prove:– Employee was under the influence at the time of the accident– AND, the accident was proximately caused by the accident

• “more probably than not”• Do not have to rule out all other causes

• Expert testimony (toxicologists)• Fact witnesses (other employees)

Private Employers, continued

• What substances may be tested for in employees?– May test for any controlled substances or their metabolites

• Must provide employees with written notice of their rights– Provide at the time of drug testing– Must save portion of sample for 90 days– Entitled to retest– Must keep drug tests confidential

• Exception – ongoing investigations, employment reviews

Tighter Restrictions for Public Employees

• Why?– Fourth Amendment

• Protects people from unreasonable searches and seizures• Applies to public, not private employees

– Skinner v. Railway Labor Executives Association (1989)• U.S. Supreme Court Case• Collection of bodily fluids or breath samples is a search

– Urinalysis– All other collection of bodily fluids or breath

Non‐Sensitive Position

• Public Employer may not require employees to submit to drug testing.

• Defined by primary duties– Are job duties not likely to endanger the public or other employees?

Skinner v. Railroad Labor Executives Association

• 1989 U.S. Supreme Court Decision– 489 U.S. 602

• Fourth Amendment Analysis– Protects against unreasonable searches and seizures.

• Drug testing is an physical intrusion and search.– Therefore, must be reasonable.

• Must take privacy concerns into account.– Medical factors– Personal process of giving samples


• Compelling government interest must be served.• Regulating railroad employees’ conduct

– Ensure safety of the public– Ensure Safety of public employees

• Safety prohibits use of alcohol or drugs.• “Special Needs”

– Industry is highly regulated for safety.


• Ensuring public safety was paramount.• Railroad employees could be drug tested following certain

types of train accidents.• Special interest of safety outweighed privacy expectations.• General Rule:

– Safety Sensitive position, may drug test.• IF reasonable, individualized suspicion

• Can test without reasonable suspicion.

National Treasury Employees Union v. Von Raab (1989)

• U.S. Customs Service Agents• Employees required to take drug tests.

– When applying for promotions

• Challenged by Employees Union• Court of Appeals upheld the testing.


• Custom Service Agents had reduced expectations of privacy.• Governmental Interests

– Integrity of Customs Services Workforce– Employees Carried Firearms– Access to classified information

• Rejected


• Government’s interest outweigh privacy expectations.– Working front lines of drug war– Organized Crime

• Bribes• Access to large amounts of contraband

– Public Safety• From organized crime• Firearms

– Exposure significantly higher than other employees.– Needed ‘unimpeachable integrity’

Chandler v. Miller (1997)

• Georgia passed law requiring drug testing for all state office candidates.

• Supreme Court found unconstitutional.• Fourth Amendment

– Carries strong presumption of privacy– Need for drug testing must be substantial

• Special Need to outweigh Fourth Amendment.

Chandler v. Miller

• Public office– No evidence of widespread drug use– Too generalized– No concrete danger– Public safety not jeopardized– No special need

• Simply symbolic

Safety Sensitive Positions

• A public employer may engage in random drug testing only for safety‐sensitive positions.

• When can you drug test?– Must have a reasonable, individualized suspicion – Of using illegal substances

Developing Policy for Drug Testing

• No clear cut rule or case• High Burden

– Always subject to the Fourth Amendment

• Balancing test– Privacy expectation is high

• What is the government interest?• How strong is that interest?


• Diminished expectations of privacy?• Depends on industry and profession

– Regulated for safety?

• Law Enforcement– Regularly submit to medical examinations– Criminal background check– Credit check

• Weigh all factors.


• Immediate threats of safety to the general public– Government generally protects the public– Compelling interest

• Must be specific.– Not all employees– Actually involved in enforcement of law


• Do’s– Identity interest in drug testing

• Ex – safety

– Narrowly tailored to direct employees– Give employee general notice.

• Start of employment is best

– Give notice.– Explain the policy.

Randomly Drug Testing

• General Rule – cannot test public employees• Must find Exceptions.

– Safety Sensitivity

• Identify Position.– What makes job safety sensitive– Look at job duties

Random Drug Testing

• Courts will look at immediacy of the threat.– Intoxication lead to mistake?– Failure to perform the job due to intoxication

• How serious is threat?• How will it affect safety

– General public concerns

Safety Sensitive Position

• Evaluated through job duties– “Such a great risk of injury to others that even a momentary lapse of

attention can have disastrous consequences”• Skinner Case

Driving

• Does driving pose a safety concern?– Maybe

• General driving – not a safety concern• Example –

– Driving to work– Running errands– Dropping off mail

Driving

• Primary job duty is driving.– Not enough

• Test –– Whether performance of job duties requires driving on a regular basis– Job performance requires driving on a regular basis.

Boesche v. RDU Airport

• Job – ventilation system mechanic• Job duties

– Repair heating and cooling– Drove repair truck throughout airport

• Legitimate interest?– Tied to public safety

Boesche v. RDU Airport

• Safety sensitive? YES– Required to drive on tarmac– Drove near airplanes and other dangers– Access to ventilation system

Driving not Found to be Safety Sensitive

• Secretary where driving was clerical• Delivering meals on wheels• Occasional driving• Driving that is incidental to other duties

How to craft policy for drivers?

• Examples– Bus drivers– Sanitation Truck Driver– Ambulance Drivers

• May be considered safety sensitive• Compare to jobs with occasional driving

Public Health and Safety

• Threat to public health may be a compelling interest.• Example

– Sewage workers– Wastewater treatment facilities

• Environmental Agencies– EPA?

• Factors– Access to hazardous chemicals– Heavy equipment– Responding to emergency situations

Service Employees

• No clear distinction or rule• Examples

– Custodians– Service Repair People– Technicians

Service Employees

• Custodian Safety Sensitive? No– Job duties

• Cleaning Bus Stops• Painting, general maintenance

– Pennsylvania– Not safety sensitive

Service Employees

• Elementary School Janitor– Was found to be safety sensitive– Factors

• Handled dangerous machinery– Lawnmowers, tree‐trimmers

• Access to hazardous materials– Cleaning supplies

– Court found that drug use could increase child’s access to substances.

• Takeaway – Access to children may tip scales

Other Factors to Consider

• Supervision– More likely to been seen intoxicated could reduce need for drug

testing– Example

• Subject to day‐to‐day scrutiny• Presence of co‐workers• Close supervision?• More likely to notice impairment

– Carpenters, masons, plumbers, painters• If work in groups, likely to not be found safety sensitive

Other Factors to Consider

• Lack of supervision– Elevator mechanic for transit authority

• Found to be safety sensitive• Elevators may fall• Mechanic had minimal to no supervision

• Compare to carpenters and painters for same transit authority

Post‐Accident Drug Testing

• Skinner Case: Testing was permissible following a train accident.

• Factors – Train accidents pose increased risk of danger and damage.– Large scale safety issues


• Other public employees– General Rule –

• Post‐accident drug testing is reasonable when immediate and significant threats to public safety are involved.

• Factors to consider– Is driving incidental to job duties?– Employee’s fault at causing an accident


• Factors to consider when drafting policy– Limit only to motor vehicle accidents?– Damage amounts?

• Ex ‐ $1,000.00 or more for any accident– Found to be overly broad

– Is fault a factor?– “Any accident involving ‘personal injury’

• Found to be too broad


• Tips – Include dollar amount

• Not just terms like serious or minor

– Include terms like ‘injury resulting in medical assistance’– Address fault if possible

Drug Testing on Reasonable Suspicion

• Balancing test– Government’s interest– Employee’s right to privacy

• Considered less intrusive than random testing• Why?

– Individual’s own actions or conduct triggered– Reasonable suspicion


• Reasonable Suspicion– Case by case basis– Don’t need certainty– Weaker standard than law enforcement

• I.e. – not probable cause

– Must be more than a hunch


• Must be able to point to specific, objective facts• Articulate rational inferences• Connect inference from what was experienced


• Direct observation of drug use• Direct observation of abnormal conduct or erratic behavior

– Example – slurred speech

• A report of consumption by a reliable source• A drug arrest or conviction• On the job accident or occurrence

– Related to intoxication?

• Evidence that employee is selling or distributing at work

Best v. NC DHHS

• Employer saw a straw with ‘white powder.’• No other behavior seen.• Employee was searched.

– No substances or paraphernalia found.

• Terminated due to refusal to take drug test.

Best v. NC DHHS

• Court found that Employer had no reasonable suspicion.– Didn’t identify the ‘white powder.’– No erratic behavior seen.– Court found that there were not sufficient grounds to rise to

reasonable suspicion.

Practice Tip

• Formal policy for reasonable suspicion not needed.• Written policy can be helpful.

– Criterion for reasonable suspicion– Allows employees to know the grounds.– Provides employers with standard of review.

Job Applicants

• May require public employment applicants to submit to drug testing.

• Must be part of the application process.

Job Applicants

• 2013 – Eleventh Circuit Case– Drug test on a job category by category basis– Balance privacy expectations and government’s interests

Job Applicants

• Again, standard is ‘safety sensitive tasks’• Operating heavy machinery

– No need for reasonable suspicion

Job Applicants

• Chandler– Supreme Court – Georgia law mandated drug testing for all candidates for public office– Overly broad– No concrete safety concern considered or addressed

Job Applicants

• In North Carolina– Remains an open question

Other Considerations

• Alcohol– Americans with Disabilities Act

• Alcoholism is considered a disability• Illegal Drug use is not

– ADA does not allow employers to ask questions designed to uncover disability

– Prior to conditional offer of employment• Can require drug test, not alcohol

– Post‐conditional offer• May alcohol test

Questions?

drug screening public and private employees€¦ · raleigh, nc mcangus goudelock & courie....

Documents