Drug Testing Laws


U.S. State and U.S. Territory Drug-Testing Laws

Follow the link below and lick on a state or territory name below to access an abstract of its workplace-related substance abuse and Workers' Compensation laws.  Please note that not all legislation enacted in 2003-4 may have yet been incorporated.  New laws are being added on a continuing basis.


http://said.dol.gov/StateLawList.asp#UT

Employee drug and alcohol abuse costs American employers billions of dollars in decreased productivity, increased liability insurance and higher workers’ compensation insurance premiums. Employers may be liable for the negligence of an employee under the influence of drugs or alcohol and they may also be liable for negligently hiring an employee with a history of abusing drugs or alcohol. Furthermore, drug and alcohol abuse is also blamed for high employee absentee rates. All of these factors give employers an incentive to test their job applicants and current employees for illegal drugs or alcohol.

Because state and federal laws have been passed to allow employers to test their employee for on-the-job drug or alcohol abuse, the odds an individual may be subjected to a drug test have increased markedly in today’s society. Whether required by a government agency or a private employer, drug tests are being used, and in some cases, are mandatory, in order to either screen an individual for drugs or as an incentive to keep an individual from using drugs. The more these tests are required, the more Americans become accustomed to them. It follows that when more Americans become accustomed to drug testing, then those tests will become even more pervasive. Today, individuals subject to drug testing include government employees, military personnel, those, involved in the transportation industry, student athletes, and countless other employees who consent to drug testing as a condition of employment and continued employment.

To this class of individuals, legislators may require other individuals to submit to drug testing, such as welfare and other public assistance recipients and anyone arrested under Federal law. Drug tests are routinely required as a condition of parole. The legislature of Louisiana, for example, has expressly declared a state of emergency to exist in Louisiana as a result of the “”spiraling increases of abuse of illegal substances by its citizens” and it further found that “”such illegal drug abuse presents a clear and present danger to the health, welfare and security of the state”. Louisiana has directed its Commission of Administration to establish a random drug testing program, beginning on January 1, 1998, for anyone who receives anything of economic value or funding from the state. Conceivably, other state or federal laws may be enacted requiring individuals to submit to a drug test in order to receive any government benefit, perhaps to renew a state driver’s license. Doubtless such plans in their extreme would be unconstitutional, however, both state and federal courts have been willing to extend the use of drug testing for purposes of safety, improved workplace efficiency, national security and to deter drug use.

The Fourth Amendment to the United States Constitution was designed to protect citizens from unreasonable searches and seizures conducted by the federal government. The Fourth Amendment was intended to protect the personal privacy and dignity of every citizen against unwarranted intrusions by the government. A search can be defined as a government intrusion into an area where a person has a reasonable and justified expectation of privacy. A seizure may be defined as the exercise of control by the government over a person or thing. It is well settled by American courts that requiring an individual to provide a urine sample for the purpose of performing a drug or alcohol test constitutes a search and seizure which implicates an individual’s fourth amendment right. Depending upon the facts and circumstances surrounding the search, it may be unconstitutional to be required to provide such a sample. The constitutionality of a drug or alcohol test, the United States Supreme Court has said, depends upon the,"reasonableness” of the test. What is reasonable under the Fourth Amendment depends upon the specific facts and circumstances of each case. The definition of “”reasonableness” has evolved over the years and continues to evolve by decisions made by the country’s judiciary branch. Certainly, what is reasonable today was not reasonable twenty or thirty years ago.

The Fourth Amendment by its terms prohibits only the federal government from conducting unreasonable searches and seizures. However, the Fourteenth Amendment prohibits states from depriving any person of life, liberty or property without due process and equal protection of the law. Through this so-called “”due process” clause of the Constitution, the United States Supreme Court has determined that most of the protections of the Bill of Rights, including the right to be free from unreasonable searches and seizures, also apply to the states. Consequently, neither the federal nor any state government or agency may conduct an unreasonable search or seizure. This means neither the federal government nor a state government can conduct an unreasonable drug or alcohol test.

On the other hand, there is no constitutional prohibition for a private individual or organization to conduct what would otherwise be an unreasonable drug test. For example, a private employer may require an employee to submit to a suspicionless drug test as a requirement of continued employment. Depending upon the facts of how and why such a test is conducted, an individual who believes his or her employer has conducted an unreasonable drug or alcohol test may sue the private employer for an invasion of the employee’s right to privacy. An employer may be found civilly liable for such an intrusion if a judge or jury decided that the required drug or alcohol test pried upon the private affairs of the employee in an objectionable manner. For example, an employer who directly observes an employee provide a urine sample might be liable for an invasion of the employee’s privacy. Under current state and federal law, however, courts are more and more willing to allow employment-related drug and alcohol testing. Some states have enacted their own legislation to guide employer in how and under what circumstances they may test their employees. Other states have not enacted any such laws. In those states, an aggrieved employee may let an arbitrator, judge or jury decide, as the case may be, as to whether the employer has unreasonably intruded into a person’s right to privacy.

Thirty, or one-hundred years ago, asking an employee to submit a urine sample as a condition of continued employment would be unbelievable and most certainly it would be considered an invasion of the employee’s privacy. Today, such testing is so commonplace that it generates almost no opposition. The Wall Street Journal reported that about 90% of Fortune 200 companies have drug-testing programs. Society now readily tolerates what would have been considered an invasion of privacy. The remarkable aspect about employment drug and alcohol testing is how acceptable it has become in such a short period of time.

In 1986 while Nancy Reagan was extolling the virtues of her “”Just Say No” campaign, President Ronald Reagan signed Executive Order no. 12564. Although this executive order prohibited Federal employees from using illegal drugs, the importance of the order was that it required the head of each Executive agency to establish an actual drug-testing program for employees in sensitive positions. The order also set guidelines for the drug-testing program.

The key to this order was that only those Federal employees in "sensitive” positions were to be tested. Surely drug testing should be permitted, the reasoning went, if individuals concerned with the country’s national security were using illicit drugs. This executive order was signed before the Cold War ended and before the collapse of the Soviet Union. Under such circumstances, it seemed all too reasonable to screen federal employees in key military positions for drugs. But Reagan’s plan included other types of workers.

Others besides government employees in “”sensitive” positions were permitted to be screened under Ex. Order 12564. Specifically, there were three instances where such tests were permitted. First, when there was a reasonable suspicion that any employee was using illegal drugs, that individual could be required to submit to a test. Second an employee in a “sensitive” position could be tested for drugs or alcohol as part of a post-accident investigation Last, employees could be subject to testing as part of a follow-up to drug or alcohol counseling or rehabilitation.

After President Reagan signed Ex. Order 12564, the United States Congress passed the Drug-free Workplace Act of 1988. The Act neither encourages nor prohibits the drug testing of employees. However, under the Act, federal contractors who contract for property or services of $25,000 or more are required to maintain a workplace free of illegal drugs. The Act generally requires federal agency contractors and employers who received federal grants to certify to the contracting agency that they will provide a drug-free workplace. Further, the Act requires the contractors and employers to notify their employees that drug manufacture, distribution, possession or use is prohibited. If a contractor fails to comply with the Act, the government may suspend payments or terminate the contract, so the contractor has an incentive to comply. As will be shown, many states have adopted a similar version of the Drug-free Workplace Act that applies to contractors dealing with the state.

After the Drug-Free Workplace Act of 1988, Congress enacted the Omnibus Transportation Employee Testing Act of 1991. The 1991 Act was enacted to address alcohol and drug testing of workers in safety-sensitive positions throughout the transportation industry. Under the 1991 Act, the Secretary of Transportation is to issue rules requiring mass transit operators who receive federal funds to conduct pre-employment, reasonable suspicion, random and post-accident testing for those employees responsible for safety-sensitive functions. Congress ensured compliance with the 1991 Act in its usual way: those organizations that failed to institute the testing procedures would lose their federal funding.

The Department of Transportation has promulgated its testing rules and they apply to anyone operating commercial motor vehicles in interstate or intrastate commerce, which essentially means any commercial motor vehicle operator. A commercial motor vehicle operator, in turn, means anyone operating a vehicle with a gross combined weight of 26,001 pounds, or a vehicle that is designed to transport 16 or more passengers, or is of any size but is used to transport hazardous materials.

If a driver fails a Department of Transportation drug test, the driver must be immediately removed from performing safety-sensitive functions. The employee may resume performing his or her duties only after an evaluation for substance abuse and compliance with those treatment recommendations. However, the employer is free to discharge a driver or mechanic who tests positive.

Two of the most important cases that are still relied upon today examined these early federal drug testing programs. In Skinner v. Railway Labor Executives Assoc. and the companion case of Natl. Treasury Employees Union v. Von Raab, the United States Supreme Court formed the basis of current employment drug testing laws. In kinner, the court stated that performing drug tests upon railway workers served the compelling government interest of protecting the public from drug-impaired railway workers and that those workers have a reduced expectation of privacy. In Von Raab, the court said that not all United States Customs agents could be tested for drugs - only those who carried firearms. The court required employers to examine whether the employee was in a “,’safety-sensitive” position in order to require drug and alcohol testing.

Other occupations that are highly regulated by the federal government are also subject to mandatory drug and alcohol testing. For example, the military has long tested its members, and the Nuclear Regulatory Commission tests employees under its purview. The Commerce Department and Justice Department also test employees. Basically, if you carry a firearm or work with sensitive information for the federal government, you will be subject to drug and alcohol testing.

After it became commonplace for federal employees to be given drug and alcohol tests, states started following suit. Presently, 32 states have enacted employment drug or alcohol testing laws and while most are fairly similar in describing how and under what conditions an employee may be tested, there are also many variations. For example, some of these laws protect the employees from workplace testing while others protect and even encourage employers to conduct employee tests. Certain states give workers’ compensation premium discounts to employers who adopt drug and alcohol testing programs while other states remain neutral or even opposed to employer-mandated testing. Some states allow an employee to be discharged for a first-time positive test while others require the employee to undergo treatment first. Finally, some states have enacted no employment drug and alcohol testing laws. In these cases, the employee’s collective bargaining agreement often limits the options an employee has. However, in all states, an employee may have a cause of action against an employer for an invasion of the employee’s privacy under extreme cases. What follows is a survey of each state’s employment drug and alcohol testing laws and some important cases which indicate how a state’s highest court has ruled in that area of law.

 

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