Seeing Pink Elephants? Alcohol and Drug Testing in the Workplace Raise Privacy Concerns

The transition to or maintenance of a drug-free workplace raises concerns regarding employee privacy of which employers must be cognizant. An employer may choose to implement a workplace alcohol and drug policy for many reasons, including to provide a safe workplace for employees, to avoid adverse health effects on employees with concomitant costs to the employer, and to protect the company’s image. An employer may also choose to implement a workplace alcohol and drug policy in order to contract with the state or federal government, or to be eligible for federal and state aid.

Whatever the motivation for implementing an alcohol and drug policy, the policy should be a written document that addresses the use of, or being under the influence of, alcohol and drugs in the workplace. The policy should be clear and precise, and strictly followed at all times. The policy needs to be disseminated to employees and easily accessible to them (e.g., posted on a bulletin board, included within the employee handbook, additional copies available in the human resources department). The policy should address the reason for the policy, and cover such areas as (a) pre-employment screening, (b) use, sale, or possession of alcohol and drugs on company premises, (c) searches of employees and their personal property, (d) testing for alcohol and drugs, (e) disciplinary action, and (f) employee assistance programs.

One of the primary components of any alcohol and drug policy is testing for alcohol and drugs. There are generally three categories of testing: pre-employment testing, reasonable suspicion testing and random testing. Pre-employment testing is the least risky type of policy the employer can implement. Pre-employment testing refers to the employer testing applicants for employment for drug and alcohol use as part of the employer’s review of the applicant’s qualification for employment. Employers may implement alcohol and drug testing as part of a regular, pre-employment physical examination for all applicants.

On the other hand, an employer may not require alcohol and drug testing for all employees who are eligible for promotion. Instead, employers should only require employees who are eligible for promotion to submit to testing after the employer determines that there is a compelling business need to test the employee, based on the nature and qualifications of the new position for which the employee is being considered. If the employer does not have a compelling business need to test the employee, then the employer could be subject to substantial tort liability for invasion of the employee’s privacy rights.

Current employees who are not being considered for promotion should only be tested based on a reasonable suspicion of alcohol or drug use. Reasonable suspicion may be based on direct observation of drug use or possession, custody or control or the physical symptoms of being under the influence of a drug, a pattern of abnormal conduct, arrest or conviction for a drug related offense, information provided by a reliable source or evidence that the employee has tampered with a previous drug test. Although reasonable suspicion testing does not require certainty, mere “hunches” are not sufficient to warrant a test. A random alcohol and drug test is the most risky test the employer can administer. Random drug tests will generally only be allowed where the employer can demonstrate that the employer’s special interest and the public interest outweigh the employee’s reasonable expectation of privacy. Generally, the employer must show that the employee’s to be tested are in safety sensitive positions. Moreover, the employer must provide advance notice of the random testing program, minimize the degree of intrusion involved, and provide safeguards for protesting the confidentiality of the process. Finally, there should be little or no discretion as to who is chosen for testing. In other words, the testing should be truly random.

Claims that may be asserted by employees who have been tested under a policy found to be unlawful include invasion of privacy, intentional infliction of emotional distress, defamation, discrimination and wrongful termination if the employee is discharge as a result of the test.

Any testing that is performed should be conducted by an independent contractor. With experience conducting tests. This will provide additional protection to the employer against a lawsuit by an employee alleging flawed testing because the torts of an independent contractor are generally not be attributable to the employer. Furthermore, employers should only receive a simple pass or fail result, not a detailed reporting of the employee’s private test results.

After the results are received by the employer, the employer should ensure that access to the results is limited. For example, the employer should not store the results in the employee’s personnel file. Moreover, the consequences for an employee who receives adverse test results should be predetermined in the workplace alcohol and drug policy.

Finally, employers should be aware that they may be required to make reasonable accommodations for employees desiring to enter rehabilitation, whether this desire is motivated by an adverse test result or is made by the employee at the employee’s initiative. Apart from the workplace alcohol and drug policy, an employer with twenty-five or more employees must reasonably accommodate any employee wishing to voluntarily enter and participate in an alcohol or drug rehabilitation program as long as the accommodation does not pose an undue hardship on the employer. If the employee receiving an adverse test result is not terminated, the employer may need to make similar accommodations for that employee.

If you are considering implementing a workplace alcohol and drug policy, or are reviewing your current policy, Wilke Fleury can help ensure that it complies with state and federal law, and meets the stringent state and federal contracting and federal aid standards.