Employee Drug & Alcohol Testing

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Drug testing is now common in the American workplace. Critics of the practice allege that such testing violates workers' privacy and, in the case of public employees, impinges upon constitutional freedoms. Although the law on workplace drug testing is still emerging, the following general observations may be made.

Drug Testing of Public Employees

Federal, state, and local employees and applicants are somewhat protected from drug testing by the Fourth Amendment of the United States Constitution, which protects against unreasonable searches and seizures by the government. State constitutions also provide protections for these workers. Although several state constitutions provide heightened privacy protections, at the federal level, drug testing has not been struck down because of constitutional privacy issues. Instead, some drug testing policies have been invalidated under the Fourth Amendment.

The United States Supreme Court has ruled that drug testing of the urine is a "search" within the meaning of the Fourth Amendment. Nonetheless, warrants, probable cause, and suspicion are not always required in order for a drug test to be considered reasonable. Certain jobs implicate public security or safety; they also have reduced privacy expectations. In such cases, the government has a compelling reason for the search, and the drug testing is proper.

Some examples of constitutional drug testing programs include:

• Post-accident drug testing of railroad employees
• Drug testing of Customs officials who are responsible for intercepting drug traffickers at borders
• Drug testing of public safety employees who carry weapons and
• Drug testing of employees with access to "sensitive" information

Public employers may not implement broad-sweeping drug testing programs that are supported by no valid need. Such programs violate Fourth Amendment protections and have been struck down by state and federal courts.

Examples of unconstitutional drug testing include:

• Policy that tested all Coast Guard employees, including mess hall cooks and cleaners
• Mandatory drug testing of all new state employees, regardless of function and
• State statute that required all candidates for state office to certify that they had obtained negative results in a recent drug test

Drug Testing of Private Employees or Applicants

Although a small number of states have passed laws that restrict a private employer's right to require its employees or applicants to submit to drug testing, the general rule is that such testing is legal. In fact, the majority of private American employers have implemented some type of drug screening program.

Federal constitutional protections do not apply to private employees. It is possible, however, that some state constitutions grant some privacy protections against drug testing by private employers.

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