Drugs in the Workplace:

Some considerations before you decide to test your employees for drugs and alcohol
by
Robert K. Bush
and
Alan M. Mullins

Park districts and other public entities are especially vulnerable to the hazards posed by employee drug abuse. Park districts, in large measure, rely on public credibility and acceptance to promote its myriad of sponsored programs as well as to justify financing those programs through local taxes. Should drug abuse among employees become a park district problem, not only will there be a negative impact upon the program or function served by the abusing employee, but the problem may discredit the entire district.

A cloud may be cast by the public knowledge of employee drug abuse; a cloud which may cover the employee's supervisors, the park district and the district commissioners.

Park districts are becoming increasingly concerned about how best to protect the park district from the perils of drug abuse in the workplace. Obviously, if a park district could insure that it would only hire workers who had never used drugs and had the personal fortitude to resist ever using drugs, there would be no problem. Unfortunately, no pre-employment application process has yet been devised which will guarantee any prospective employee be permanently drug free. It is also unlikely that a park district can devote the resources necessary to bring about permanent change in the ideals, values and lifestyles of its employees.

As a result, less reliable means have been adopted by employers to protect the workplace from drug and alcohol abuse. Drug and alcohol testing is the primary measure implemented to ferret

"There are no set rules on when public employees may be tested for drugs. It is not necessary that the employer establish that its work force has a drug problem before it institutes a drug testing program."

out drug abuse, and secure the sobriety of the workplace. Drug testing, as will be discussed, is fraught with its own unique set of problems and issues. However, until a fundamental change in employee values and personal practices can be assured, it is the most reliable means for an employer to reduce its exposure to drug abuse in the workplace.

Drug and alcohol tests of public employees are a search under the Fourth Amendment and may be conducted only when such tests are reasonable. There are many factors which determine a drug and alcohol test is reasonable, such as whether the test can be conducted at any time, after a triggering event, or as part of a scheduled physical. In addition, the testing process itself must be reasonable and cannot unnecessarily intrude on an employee's privacy. Employers must determine whether it is reasonable to test their employees, and, if so, whether their drug testing method is reasonable, on a case-by-case basis.

The U.S. Supreme Court has approved drug testing of public employees in some instances in the cases of National Treasury Employees Union v. Von Raab, U.S.. 109S.Ct. 1384,103L.Ed.2d 685 (1989), and Skinner v. Railway Labor Executives Assoc., U.S., 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). It must be noted that the Supreme Court did not give a blanket approval to employee drug testing.

The Von Raab and Skinner cases only approved drug tests for employees whose drug-induced mistakes could cause grave consequences. The cases also did not specifically approve random drug tests. The employees in Von Raab and Skinner were tested after the occurrences of certain events, such as their application for specified positions or train accidents. Although Von Raab and Skinner did not answer all the questions surrounding employee drug testing, they, and subsequent opinions of other courts interpreting those cases, do give employers substantial guidance in determining whether, and how, to test employees for drugs and alcohol. This article will give employers some basis for beginning the inquiry.

Public employers may require employees submit to suspicionless drug tests only if the tests serve a special governmental interest.

Employers may not test employees for drugs or alcohol merely to ensure their employees abstain from using illegal drugs and do not arrive at work under the influence of alcohol. The general rule is that public employers may not require an employee to submit to a drug test unless there is "reasonable suspicion" to believe that the employee has used illegal drugs. An exception to the general rule allows employers to test public employees without any suspicion of drug use when there is some special governmental interest beyond law enforcement which warrants suspicionless drug tests. The government interest which will be served by a suspicionless drug lest has to outweigh the employees' interest in privacy to be considered reasonable under the Fourth Amendment. It must be impractical and a hindrance to protecting the governmental interest to require some degree of reasonable suspicion prior to a drug test.

The most frequently approved governmental interest to support a suspicionless drug testing policy is the employer's interest in the safety of the public and other employees. That interest will justify drug tests of employees who have access to dangerous instrumentalities and who could cause grave consequences through a momentary lapse of attention.

For example, the random testing of employees who are exposed to secret and top secret materials has also been approved but that justification is most likely reserved to certain branches of the federal government.

Drug testing of public employees has also been approved in the following circumstances. Railroad personnel may be tested after an accident. Treasury Department agents who seek appointment to drug interdiction positions or positions which require they carry a gun may be tested prior to their appointment to such positions. School bus drivers, mechanics and attendants involved in the transport of handicapped children may be required to take a drug test as part of a reasonably required, employment-related medical exam. Hazardous material inspectors and aircraft mechanics can be randomly tested for drugs as long as the selection of the tested employee is truly random. Mail van operators for the Department of Transportation can also be tested for drugs because they are exposed to secret and top secret documents and must pass a security background check prior to being appointed to their positions. Therefore, they had a reduced expectation of privacy. A mass transit system which had a drug problem could randomly test employees involved in the transport of riders. Jail guards can be tested once a year with no advance warning. Pilots, aviation mechanics, aircraft attendants, guards and police of the Department of Defense may be randomly tested because of serious consequences of drug-induced mistakes.

Interestingly, the suspicionless drug tests of Department of Justice personnel, including prosecutors, was not approved, except for personnel prosecuting drug cases, because there was not a sufficient safely interest nor danger to confidential information. The circumstances surrounding drug tests influence whether the tests are reasonable.

There are no set rules on when public employees may be tested for drugs. It is not necessary that the employer establish that its work force has a drug problem before it institutes a drug testing program. All the circumstances which surround the test must be considered to determine if the test is reasonable. The circum-

stances run a continuum of intrusiveness on the employees' expectation of privacy from reasonable suspicion to complete random testing of any employee at any time.

Those circumstances include: individual suspicion; testing pursuant to drug or alcohol rehabilitation; testing as part of a pre-employment physical; pre-employment testing not related to a physical; testing as part of periodic reasonably required employment-related physicals or physicals related to the transfer or promotion of employees to other positions; testing which follows a triggering event such as an accident or serious violation of a safety rule; all employees tested once a year with the time of the test randomly chosen; any employee to be tested at any time where the tested employees are chosen at random but may be chosen any number of times no matter how often tested.

The governmental interest served by testing employees for drugs must be increasingly compelling the further the circumstances are from "reasonable suspicion." This is especially true for random drug tests. The courts have approved random tests for employees whose duties were such that a drug-induced mistake could cause great injury and damage, such as jail guards, rapid transit personnel, pilots, aviation mechanics and hazardous material inspectors. It is possible that a court could determine that the duties of a particular position arc not such that a drug-induced mistake would cause great injury and damage and, therefore, would not justify a random drug test, but that the threat of injuries were sufficient to justify a less intrusive, better defined, test. In addition, it is possible that governmental interests other than safely may not justify random drug tests, but may justify other testing as part of regular physicals.

Employers must take steps to avoid intruding on employee rights when conducting drug tests.

Once an employer has determined the circumstances under which it will test employees for drugs and alcohol, the actual testing process is the next legal hurdle which must be properly addressed. The Fourth Amendment to the United States Constitution requires that the testing process be reasonable and not overly intrusive. It is possible for circumstances to exist for a suspicion-less drug test. An employer violates employee rights by the way the test is conducted. Employers must take steps to guard employee's privacy, the integrity of the testing system and the confidentiality of the test results. However, employers are not precluded from using urinalysis as a testing method simply because other methods are available as long as the test is not performed in an overly intrusive fashion.

Any testing program instituted by an employer must be systematic and comprehensive. There must be a set procedure which is followed for all tests. Only those employees who are implicated by the employer's governmental interest may be tested. For example, office personnel may not be tested if the employer's objective is to prevent drug-induced accidents by personnel involved in the transport of students.

Employers must be careful to ensure that all members of the

class eligible for testing are tested or that tested employees are chosen through a truly random method with no supervisory discretion to avoid stigmatizing any tested employees. The particular drug test used by the employer does not have to differentiate between on-duty and off-duty drug or alcohol impairment. The specimen collection need not be performed by medical personnel as long as an established testing procedure is used for all tests.

An employee drug testing program should at least include the following provisions.

The employee shall be given an opportunity prior to the collection of a specimen to advise the employer of any medical history or use of prescription or non prescription drugs which may affect the test results.

The tested employee shall be accompanied to a washroom by a supervisor of the same sex and shall remain in the supervisor's presence at all times until the specimen is sealed.

The supervisor shall maintain visual contact from a discreet distance with the employee while the specimen is collected. The supervisor shall directly observe the specimen collection only if there is reasonable suspicion to believe the employee may attempt to alter the test results.

The specimen shall be placed in two containers, sealed and signed.

One container shall be opened by the testing lab and the specimen analyzed.

If the test results are positive, the first container shall be resealed and the specimen in the second container shall be analyzed using a more sophisticated test.

If the analysis of the specimen from the second container produces a positive result, the employee shall be given an opportunity of having another test performed on the specimen.

The test results are not considered to be positive unless both tests register a positive result.

Conclusion

A park district or other employer cannot implement a random, across-the-board drug testing program merely to assure itself that its employees come to work drug free. The individual constitutional protections which we all enjoy prohibit such suspicionless intrusions on personal privacy.

However, park districts are not powerless in its efforts to protect district residents, participants and employees from drug abuse by individual workers. As has been described, there are procedures which, if followed correctly, can be implemented to improve the chances that park district employees are coming to work sober and performing their tasks under their own devices. In this way, Illinois park districts will be safer places for employees to work and more secure and protected for residents and participants.

About the Authors

Robert K. Bush and Alan R. Mullins are attorneys at the law firm of Ancel, Clink, Diamond & Cope, PC. in Chicago. They represent public entities in all areas.