All public employers should have a comprehensive, written drug and alcohol policy. A well-crafted drug and alcohol policy provides guidance to supervisors and sets forth the specific and legally recognized bases for testing. Without a policy, supervisors are left to guess when testing is appropriate and under what circumstances. Supervisors must know when they can test, how to test and should be cautioned against arbitrary enforcement not only because it jeopardizes resulting disciplinary action but also because it questions the constitutionality of the testing.
What does drug testing have to do with the Constitution? How is this a legal issue? At my last job (private sector) we tested everyone? The answer to these questions is simple: public employers are the "government" and the protections afforded to citizens in the Bill of Rights extend to government employers.
The Fourth Amendment to the U.S. Constitution protects people, including government employees, from unreasonable searches and seizures. The U.S. Supreme Court has held that the forced collection of bodily fluids or breath samples is a search within the meaning of the Fourth Amendment. See Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602 (1989). Because drug and alcohol testing involves, presumably, the non-consensual taking of bodily fluids, it is a "search and seizure" for Fourth Amendment purposes. In order to be legal, drug and alcohol testing must be "reasonable."
The reasonableness of the drug and alcohol testing depends on the type of test performed and the job classification for the individual being tested. There are four (4) occasions upon which testing is performed: (1) pre-employment; (2) reasonable suspicion; (3) post-accident; and (4) random. Random testing is the most legally scrutinized. Courts have held that random testing of a public employee is constitutional only when the employee works in a "safety-sensitive" position. A government’s general interest in maintaining the integrity of its workforce is not a sufficiently compelling interest to justify random testing of the entire workforce, according to the courts, absent additional evidence. Therefore, determining which employees may legitimately be deemed "safety-sensitive" is the most critical part of developing a comprehensive drug and alcohol testing policy.
The difficulty in doing so, however, is that there is no definition stating which job positions are "safety sensitive." For example, whether a 911 dispatcher works in a safety-sensitive position is an open question. In 2011, the Third Circuit held that a landscaping employee at a wastewater plant worked in a safety-sensitive position, but years earlier, in 1991, it had held that a custodian employed by a transit authority was not. Compare, Mollo v. Passaic Valley Sewerage Comm’rs, 406 F. App'x 664 (3d Cir. 2011) with Bolden v. SEPTA, 953 F.2d 807 (3d Cir. 1991). The difference in these two cases may have been that in Mollo, the employer had designated the landscaping position as "safety-sensitive" prior to enacting its random drug testing policy, whereas in Bolden, the employer had not done so. The take away from these cases is that the determination of whether a position is "safety-sensitive" for purposes of random testing requires careful consideration.
For law enforcement officers, the duties of the position require employees to exercise their judgment in deploying lethal force, if necessary. These duties are easily understood to be "safety-sensitive." It should be noted, however, that there is no federal or state requirement to randomly test law enforcement officers, and for unionized employees, many aspects of a drug and alcohol testing policy are bargainable.
For employees who drive commercial motor vehicles ("CDL drivers"), the federal government has enacted extensive regulations that require pre-employment, random, post-accident and reasonable suspicion testing. These regulations meet the "reasonableness" standard under the Fourth Amendment because CDL drivers perform "safety-sensitive" functions. These regulations apply to both interstate and intrastate CDL drivers because Pennsylvania adopted the federal regulations for intrastate CDL drivers.
Reasonable suspicion and post-accident testing are treated differently by the courts because they involve individualized suspicion. The Fourth Amendment "reasonableness" standard still applies, but the employer need not show that the employee works in a "safety-sensitive" position because individualized suspicion exists. In order to meet the Fourth Amendment standard, reasonable suspicion should be based on observations of the employee made by supervisors or officials trained in detecting alcohol and drug use. Testing based on the occurrence of a significant accident (in terms of degree of physical injury to the employee or others and/or the amount of property damage (monetary)) may be reasonable. A test based solely on the fact that an accident occurred (a minor accident with no injuries) is probably not reasonable.
As for pre-employment testing, the law is unsettled as to whether all applicants for employment can be required to undergo a pre-employment test. In Kerns v. Chalfont-New Britain Twp. Joint Sewage Auth., the trial court suggested that governmental entities should be allowed to require pre-employment drug testing to the same degree as private employers because "otherwise, drug users would be encouraged to seek government employment, rather than work in the private sector." 2000 WL 433983 (E.D. Pa. 2000). The Third Circuit affirmed, but did so because it found that the person had consented in writing to taking a drug test because it was a condition of the offer of employment which he accepted.
However, courts in other jurisdictions have come to different conclusions. In Lanier v. City of Woodburn, the Ninth Circuit held that a city’s blanket policy of pre-employment testing of all applicants was unconstitutional as applied to a person who was applying for a librarian’s assistant job. 518 F.3d 1147 (9th Cir. 2008). The Ninth Circuit ruled that the City needed to demonstrate a "special need" to drug screen for a particular position. Also, in AFSCME v. Scott, the Governor of Florida issued an executive order requiring all applicants for state employment to submit to drug screening. The Eleventh Circuit held that the executive order was too broad and that the State must show a "special need" for pre-employment drug screening, based on the duties of the position. 717 F.3d 851 (11th Cir. 2013).
Can your municipality have a policy that requires all prospective employees to submit to pre-employment drug testing? Maybe, but it is risky to do so. The Third Circuit’s ruling in Kerns is the minority view among federal courts. The more conservative approach is to require pre-employment drug testing only where the position applied for can legitimately be deemed "safety-sensitive," the same rule as with random testing.
For represented employees, collective bargaining is also part of the process of developing a drug and alcohol policy. The PLRB has held that certain aspects of testing are mandatory subjects of collective bargaining. See Cambria County Transit Auth., 21 PPER Â¶ 21007 (1989). Employers have the managerial authority to test public employees for drug and alcohol in certain circumstances, but must bargain with the union over the "nature, integrity and reliability of the testing process as well as matters of employee discipline which follow a positive test result." Id. In regard to CDL drivers, the PLRB has acknowledged that the federal regulations preempt the obligation to collectively bargain, and, therefore, a drug and alcohol testing policy for CDL drivers that tracks the federal regulations is not a mandatory subject of bargaining. AFSCME v. Valley Twp., 28 PPER Â¶ 28121 (1997).
Developing a comprehensive drug and alcohol policy is a complex but necessary task. For CDL employees, the policy must track the applicable federal regulations. For non-CDL employees, the federal regulations may be used as a model (although there are aspects of the CDL regulations that are not desirable). Each municipality will have to determine whether it wishes to require employees other than CDL drivers to submit to random testing, and if so, which employees can legitimately be designated as working in "safety-sensitive" positions. Municipalities will also have to decide whether to require pre-employment testing for employees other than CDL drivers and law enforcement officers. And of course, negotiation with unions that represent employees other than CDL drivers will be necessary.