Employee Privacy Concerning Drug Testing In The

Workplace Essay, Research Paper

Employee Privacy Concerning Drug Testing in the Workplace

December 13, 2000

Labor and Employment Law MGT 424

Fall 2000

Employee Privacy Concerning Drug Testing in the Workplace

A. Court Cases Affecting Privacy of Employees and Drug Testing in the Workplace

1. Supreme Court cases affirming drug testing

a. Skinner v. Railway Labor Executives Association 109 S.Ct

1402(1989)

b. National Treasury Employees Union v. Von Raab, 109 S.Ct. 1384 (1989)

2. Other lower court and State court rulings

a. Kraslawsky v. Upper Deck 56 Cal.App.4th 179, 66 Cal Rptr.2d.297(CA 4, 1997)

b. Pettus v. DuPont, 49 Cal.App.4th402, 57 Cal.Rptr.2d 46 (1997)

3. Supreme Court cases dealing with Privacy in general

a. Griswold v. Connecticut381 U.S. 479, dealing with individual rights to privacy

B. How Do You Define Drugs?

1. Just Illegal Drugs on the Street?

2. Alcohol can be abused to?

C. What is Reasonable Suspicion?

1. Who should be the one to decide this?

a. What should the criteria be?

2. Should we only test the most critical jobs that are for the safety of the public good?

D. Lab Testing

1. Is it accurate and can the employer rely on the outcome?

2. How much do you spend to make sure you get the right answers

E. Positive Test

1. How should the information be handled?

2. What should be done with the employee?

3. What about rehabilitation?

F. Who’s Rights are We Infringing On

1. Employees?

2. Employers?

Privacy and drug testing have gone hand in hand since President George Bush instituted the Drug-Free Workplace Act in 1988. This act only affected federal workers and was only to be used in certain circumstances, so as to not impact the privacy of the federal employees, but to make sure that the federal workplace was a safe place to work in. This was actually the start of pre-employment drug testing and the on going testing of those who had returned from a rehabilitation programs for drug and alcohol abuse previously. All federal agencies instituted drug-testing programs at this time to protect the safety and security of government employees and the public.

The act provided that programs had to be legal and be communicated to the employee. Discipline was left up to the employer’s discretion. If the employee was found guilty of criminal sanctions, the employer must administer some type of employment sanctions towards the individual also. Most of the programs were and are focused on rehabilitation and recycling of the employee back into the work environment. Privacy was extremely important with this act. It was important that the employer only used drug testing for pre-employment and not as an on going harassment of the employees if they were not found to be abusers.

A number of legal definitions of privacy really have come about due to the 1890 Harvard Law Review article “Right to Privacy”, written by Samuel Warren and Louis Brandeis. They felt that it is the right of the individual was “to be let alone” and that the press or anyone else should not infringe upon his/her privacy. In conjunction with the Law Review, the case of Griswold v. Connecticut (381 U.S. 479) also addressed privacy. Justice Douglas wrote that the individual should be afforded a “zone of privacy” around their person, which cannot be violated by government intrusion. It is articles and cases like these that have shaped our current legal system and how they look at the individual privacy issue. Many cases have been decided on these decisions and articles.

There have been some cases that have affirmed suspicion less or random testing for drugs. Loder v. City of Glendale (1997) 14 Cal.4th 846, 59 Cal.Rptr.2d 696. The Court held that the city could require all job applicants to submit to drug testing. However, suspicion less drug testing of all current employees who were offered promotions was not reasonable under the Fourth Amendment. In this instance, the courts have protected the rights of the employee to not be tested again after they have been hired, just because they are being looked at for promotion. If the employee is acting normally and making good decisions on their current job, there is no reason to test them just because they are being promoted.

On the other side, there have been two cases that took the opposite viewpoint about the same subject as above. Skinner v. Railway Labor Executives Association, 109 S.Ct. 1402 (1989), holding that federal regulations mandating drug testing of railway workers were reasonable even though no warrant or reasonable suspicion existed, National Treasury Employees Union v. Von Raab, 109 S.Ct. 1384 (1989) holding that suspicion less drug testing of Customs Service employees applying for promotion to positions involving interdiction of illegal drugs or requiring them to carry firearms was a reasonable search under the Fourth Amendment. In these cases the courts consistently have upheld federal laws mandating random drug testing for employees in interstate transportation, nuclear power plants, law enforcement and other safety-sensitive positions. When the public safety is at risk, employee privacy can be breached to make sure that the public good is being protected. Most US citizens would agree with this principle after witnessing many plane, train, bus and car accidents that have killed and maimed many innocent citizens.

We must also address the rulings from lower courts that have come about in favor of the employee. Many of these ruling are used in cases today as benchmarks from past decisions. Kraslawsky v. Upper Deck, 56 Cal.App.4th 179, 66 Cal.Rptr.2d 297 (CA 4, 1997) Upper Deck had a reasonable suspicion drug testing program. It seemed that Ms. Kraslawsky, a secretary, was having a problems one day. The manager felt he had a suspicion that she should be drug tested. She refused to take the test and was fired. After she was fired, she was allowed to drive 60 miles home. Evidently the manager wasn’t that convinced that she had a drug problem. If he had believed that she was really impaired he would have never let her drive home.

In Pettus v. Du Pont, 49 Cal.App.4th 402, 57 Cal.Rptr.2d 46 (1997) Mr. Pettus was an employee with 22 years of service who was advised by his doctor to take a 90-day disability leave for stress. The company required him to be examined by its own psychiatrists to confirm the diagnosis. The psychiatrist concluded that Pettus was not a threat but mentioned something about alcohol during the interviews. The company psychiatrist said that he should only be laid off for 90 days to deal with stress. The company forced him into an alcohol rehab program in addition to the 90-day stress leave, which he rejected. When it’s put this starkly, we can predict the court’s opinion. The court held that forcing him into a program was an invasion of his right to privacy. If he had a drinking problem, he has the right to deal with it, as he wants. The employer’s only interest is what happens at work.

??Employee Privacy Concerning Drug Testing in the Workplace??

Lab testing, Is it accurate and can the employer rely on the outcome? Yes. If the testing is done by using people’s hair-even the hair of people long dead-reveal a great deal about their health and personal habits.

Not surprisingly, in an age when 81% of large U.S. corporations engage in some kind of employee drug screening, a lot of companies are looking hard at these new testing techniques. According to the American Management Association, about 2% of big U.S. (Fortune 163) companies have already begun to test hair, and the percentage is rising. A major selling point is that hair analysis has a wide detection window where urinalysis can be altered or changed easily by health supplements to detoxify. While urine tests generally detect drug use during the previous week, hair tests can reveal any illegal indulgence back as far as a month or more. Employers can count on a hair test to be reliable, however if a person cuts their hair to the point of being bald or shaves it off then blood tests would be an alternative to finding out if the person is indulging in illegal. DNA testing can show that in blood as well as hair if drugs were used.

Positive Test Information that shows positive results of drug testing should be held in confidentiality between the employee and the employer. If it is found that illegal use of drugs has occurred then an investigation to make sure that the employee was not on any types of medication from a doctor for health issues was prescribed and verified by talking to the employee and of course with their consent.

If the employee has been found guilty to the illegal use of drugs then it will be up to you them to consider seeking the proper health clinics that specialize in drug treatment and abuse. If there is an accident and the employee is found to have illegal drugs in their system then it would be correct to terminate employment or discharge because as a rule zero tolerance is needed to provide a safe environment for all to work in most organizations and jobs currently. Also the proper authorities such as police in their area to which they live or reside should be informed that this particular individual has a problem and needs help.

Rehabilitating In rehabilitating the employee it helps them to become more self sufficient and responsible for their actions in society and the workplace. Also, it improves their performance and their attitudes and outlook on life. It could be that the employee was hanging around the wrong crowd and realizes that once detoxed and they are clean see that there are people out their and people to whom have faced similar problems in life and have resolved and changed their lives by rehabilitating themselves.

Who’s Rights are we Infringing On? For the employee rights they are protected by the Fourth Amendment protection against unreasonable searches. If the employee winds up turning him or herself in and is willing to get help there are laws that protect them. If the employee is tested the employer for the employee should restrict the information gained during testing. If the information is disclosed to people who don’t have a need to know then the employee can hold the employer liable for invasion of privacy or for defamation should the information turn out to be false.

For the employer you have an absolute right to determine whether someone is sufficiently healthy to do a job. The employer should make sure that if they test that the yield results are relevant to the job in question. (Employment Labor and Law 535)

Bibliography:

DD. Bennett-Alexander & LP Hartman (2001), Employment Law for Business, 3rd Edition, Irwin McGraw-Hill Publishing. (1998, December)

http://www.sundoulos.com/answers/body_drug.html (1994, February)

http://www.brobeck.com/sslitle/8.htm (1998, August)

http://www.fairmeasures.com/print/articles/drugtest.html (1996, March)

http://www.nesl.edu/lawrev/vol30/vol30-2/Obrien.htm (2000, November)

http://www.aclu.org/library/pbr5.html (1997, June)

http://www.fortune.com/fortune/1997/970623/ask1.html

Curry, Sheree R., “Big Brothers want a close look at your hair” Fortune. June 1997

5fd

DD. Bennett-Alexander & LP Hartman (2001), Employment Law for Business, 3rd Edition, Irwin McGraw-Hill Publishing. (1998, December)

http://www.sundoulos.com/answers/body_drug.html (1994, February)

http://www.brobeck.com/sslitle/8.htm (1998, August)

http://www.fairmeasures.com/print/articles/drugtest.html (1996, March)

http://www.nesl.edu/lawrev/vol30/vol30-2/Obrien.htm (2000, November)

http://www.aclu.org/library/pbr5.html (1997, June)

http://www.fortune.com/fortune/1997/970623/ask1.html

Curry, Sheree R., “Big Brothers want a close look at your hair” Fortune. June 1997