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In Legal Terms
- Pre-Convention Issue 2005
Counties should have written drug testing policy
Questions related to drug testing policy for potential and existing county employees are - as with so many issues in county government - difficult to definitively answer. There are many factors which go into making a determination about when drug testing is proper, and of course, many gray areas. A review of some recent court rulings on this issue may help to provide some guidance.
The United States Supreme Court has made clear that, at least in the area of government employment, drug testing falls under the Fourth Amendment protections against unreasonable search and seizure. This does not mean that there is an absolute bar against drug testing of existing or potential employees, but it does significantly limit the circumstances where random or mandatory testing will pass constitutional muster.
The U.S. Supreme Court has held that, "to be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing." Chandler v. Miller, 520 U.S. 305 (1997). In other words, as with the search of a person's home or other property, the government must show that there is some ground to believe that there has been some illegal activity. In the context of drug testing, this would mean that there is some reasonable suspicion that the employee is or has been under the influence of drugs or is involved in illegal activity related to drugs. This prevents random drug testing of all county employees or required testing of all applicants. However, if there is a sufficient indication that an employee is under the influence of drugs (or alcohol) while at work, and the evidence can be sufficiently documented and substantiated (as by statements from supervisors and others regarding the employee's behavior, appearance, or "smell"), testing may be appropriate.
There are recognized exceptions to this rule. In Chandler v. Miller, supra, the High Court stated that, "where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion." What does this mean? It means that there must be a "special need" for the drug testing which is "substantial [and] important enough to override the individual's acknowledged privacy interest . . .", such as where the risk to public safety is substantial and real or is genuinely in jeopardy. Chandler v. Miller, supra. In other words, for this suspicionless "search", government must show a clear connection between the nature of the employee's duty and the nature of the feared violation. See, e.g., Georgia Ass'n of Educators v. Harris, 749 F. Supp. 1110, 1114 (N.D. Ga. 1990). This is often referred to as employment which is high risk or "safety sensitive".
A Florida federal district court explained this very well in a recent case where it ruled unconstitutional a policy requiring random drug testing of all employees. In Wenzel v. Bankhead, et al., 351 F. Supp. 2d 1316 (N.D. Fla. 2004), that court stated:
The bottom line is this. In order for a state to subject an employee to random drug testing, it is not enough that there is a generalized interest in sober public employees who perform their jobs well and keep the public trust. Nor is it enough that others in the same agency have duties that make it especially important that those employees remain drug free. Nor is it enough that a far-fetched possibility can be conjured under which the employee at issue could, if under the influence of drugs, bring about some harm. . . . There must be, instead, a concrete risk of real harm.
One of the best examples of a "safety sensitive" position wherein random or mandatory testing may be authorized is a CDL driver or heavy equipment operator who spends a significant portion of his or her workday operating heavy machinery or large trucks on public roads, which would place members of the general public (and the employee) at significant risk if performed while intoxicated or drug-impaired. Random drug testing of these employees may be appropriate (and in some instances required) under proper policies that protect the employees' rights to privacy and implement testing procedures that are not unnecessarily intrusive. There are other instances where courts have upheld "suspicionless" drug testing, such as for railway employees involved in train accidents or violating particular safety rules, for customs employees involved in drug trafficking or carrying firearms, for public school teachers and administrators, and for nuclear power plan engineers.
On the other hand, as shown by the above-referenced Florida case, the courts have rejected random drug testing policy based on a general desire to ensure or protect that the governmental entity has a positive image and/or that public funds are "in good hands". For example, in another recent Florida case, the city of Hollywood had a policy requiring that any person given a conditional offer of employment submit to and pass a drug test before being hired. The city claimed that the testing was needed "to maintain its positive image and provide 'tangible assurances that public funds are in good hands and not in jeopardy of being squandered by impaired employees.'" Baron v. City of Hollywood, 93 F. Supp. 2d 1337 (S.D. Fla. 2000). The federal district court rejected these arguments, however, and held that the city's expressed need for testing was merely "symbolic" and insufficient to establish a special need justifying drug testing. The Court noted that "the Fourth Amendment requires that the government 'connect its interest in testing to the particular job duties of the applicants it wishes to test.'" Baron v. City of Hollywood, supra. This cannot be shown where the policy requires testing of all job applicants.
All counties should have a written drug testing policy before any testing of any employees is undertaken, and this policy must comply with the rules for proper and legal testing as set out in the cases governing this important and difficult issue. It is, therefore, important that any policy be carefully reviewed by the county attorney prior to implementation, and that the county, and the county attorney, periodically review its policy to ensure that it continues to comply with recent court decisions on this issue as those decisions unfold.
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