Public Sector Drug and Alcohol Testing

HRinVA

[font size="1" color="#FF0000"]LAST EDITED ON 02-03-09 AT 05:19AM (CST)[/font][br][br][font size="1" color="#FF0000"]LAST EDITED ON 02-03-09 AT 05:17 AM (CST)[/font]

"Public employers, on the other hand, are legally prohibited from conducting certain types of testing except on employees in safety-sensitive positions."
[url]http://www.hrhero.com/hot/169695/[/url] *

What law says this, and can reasonable suspicion testing be done on non-safety sensitive positions?

*ETA: Sorry, I don't know why this link isn't working, but the reference is the March 2008 Alabama Employment Law Newsletter that can be found by going to hot topics - Drug Testing.- scroll down to "Did your Employee Inhale?"

sonny

I can't open the link for some reason but I do know that in 2000 there was a case in Florida. . City of Hollywood and Thomas Baron wherein " the court ruled that, in the absence of any reasonable suspicion of illegal drug use, testing applicants for jobs that are not "safety sensitive" violated the Fourth amendment."

After this, we quite preemployment drug testing on non safety sensitive positions on the advice of our labor attorney. We still test all police, fire, dispatch, CDL, water and waste water. Thinking about your question, I realized that everyone we have tested under reasonable suspicion has been in one of those positions.

I would check with our attorney, but I would test non safety under reasonable suspicion just as we do safety.

I'd like more on the law too. . maybe David S will jump in.

davids

There is a recent (2008) 9th Circuit case, Lanier v. City of Woodburn (Oregon) in which the court ruled that it is not permissible for public employers to conduct blanket pre-employment drug testing. The court said the city's policy was an unlawful search and violated the 4th Amendment of the U.S. Constitution and also violated the Oregon Constitution. The applicant in this case applied for a position as a library page and would have minimal contact with children. The Court left the door open for testing positions that were safety sensitive or had "special needs." Law enforcement and school bus drivers were identified as positions with "special needs."

All that I read about this case says it applies to pre-employment drug screening. It doesn't address reasonable suspicion testing for current, non-safety sensitive positions. However, based on the Court's reasoning, my guess is that any challenge to reasonable suspicion testing will come down to arguing that the legitimate needs of the government entity to have a drug-free work place override the employee's 4th Amendment rights.

ACU Frank

In Missouri, not a single school district has stepped forward to attempt to set a legal precedent. Therefore, students in Missouri are tested but their teachers are not.

HRinVA

>"...However, based on the Court's reasoning, my
>guess is that any challenge to reasonable suspicion testing will come down to
>arguing that the legitimate needs of the government entity to have a drug-free
>work place override the employee's 4th Amendment rights. "


Thanks...interesting...I wonder why a public employee has different rights than someone who works for the privact sector?

sonny

Because we are so SPECIAL. . . :~~

davids

Because, when a public employer takes action, it is the government taking the action. That kicks in constitutional protections that don't apply to the private sector. It is why public employees have due process rights that don't apply to private sector employees.

sonny

David is right of course, tho I still like my answer!