Lawyer: Random testing OK in some situations
Random drug and alcohol testing is not the norm in most workplaces, and you can encounter significant legal hurdles if you try to implement it. But that does not mean the idea is unworkable as long as you investigate the legal issues that apply to your particular situation.
State laws vary significantly on the issue of random testing, so that is the first thing you should check, says David Evans, JD, an attorney in Lawrenceville, NJ, and author of two books on the legal issues regarding drug testing. He also works with the National On-Site Testing Association in Flemington, NJ.
Evans says drug tests are considered searches by the legal system, and a search usually requires some reasonable suspicion or a policy requiring everyone to undergo the search before employment. Other situations can make the search legal, such as federal requirements for truck drivers and others to undergo regular testing.
Random testing, however, is essentially a random search, Evans says. Most courts will see the search as justified only when there is a need that overrides an individual’s expectation of privacy, he says.
Safety in the workplace can be considered good justification, but sometimes only in certain work situations. It is not clear that workplace safety in general is a good enough reason to justify random testing. To make a decision, you may have to consider the particular workplace in question and previous court decisions in your state.
All federal or federal-regulated workplaces use random testing, and courts have declared random testing acceptable for certain types of work or workplaces, usually because of safety issues. Evans says these are the types of workers that courts already have said may be randomly tested without violating their legal rights. (See list, p. 147.)
Some work is not for random testing
On the other hand, courts have determined that some types of employees should not be subject to random testing because there is no safety issue to justify the invasion of privacy. Evans offers this list:
- maintenance custodians for a public transit agency;
- postal employees;
- court employees;
- federal prosecutors;
- federal data processors;
- employees of the executive office of the U.S. president who have access to sensitive information but no security clearance;
- federal vehicle operators who do not carry passengers.
Additionally, some state statutes specify that random testing is not permitted, which means reasonable suspicion is required. Evans stresses that the categories in which random testing has been found allowable or not allowable are based on previous court decisions across the country and could change at any time with new rulings or new laws.
"In your average factory situation, you’re not going to find a lot of random testing," he says. "Most drug testing is pre-employment, the overwhelming majority. Reasonable suspicion testing is the next most common. Random testing is not common at all, and there’s likely to be resistance in the work force if you try to implement it."
Sources
For more information on the legal issues regarding random drug testing, contact:
• David Evans, Attorney, National On-Site Testing Association, 203 Main St., Suite 193, Flemington, NJ 08822. Telephone: (908) 788-7077.
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