An Ounce of Prevention: Drug Testing
By Daniel Eaton
AN OUNCE OF PREVENTION: DRUG TESTING
Californians like their privacy. In 1974, California voters approved an amendment to the California constitution expressly recognizing a Californian’s right to privacy against both the state and private enterprise. (Cal. Const. Art. I, § 1.) Whether at work or at home, there are limits on what others may learn about Californians without their consent.
Balanced against this right of privacy are the many legitimate reasons California employers may have to make sure that their employees are free from any influence of drugs at the workplace, even where the drug use itself may have taken place off-site. A worker under the influence of drugs poses a hazard to himself, his fellow employees, and potentially the public. Such a worker exposes his employer to potential liability if the worker causes harm to himself or others. If the worker harms himself in the course of his job, the employer could incur charges to its workers’ compensation account and disability payments. If the worker harms a member of the public because of drugs, the employer could be subjected to a personal injury lawsuit.
Beyond reducing the risks of liability, some employers have other valid reasons for maintaining a drug free workplace. Some companies wish to reinforce a wholesome public image by projecting to the public that their employees do not use drugs. Other companies – especially with the explosive growth of high technology companies – may believe an employee’s use of drugs may make them more likely to divulge company secrets.
Notwithstanding these strong employer interests, the tight labor market of the past few years has discouraged many companies from drug testing their applicants or employees for fear of being placed at a competitive disadvantage. One study showed that the percentage of companies requiring drug tests either for applicants or its current workers fell from 81% in 1996 to 66% in 2000. (“The Cutting Edge: Focus on Technology; Drug Tests Are Multiple Choice at Tech Firms” Los Angeles Times, October 2, 2000, page C1.)
The current trend away from drug testing is especially strong in the high tech sector. “High-tech employers are more likely to pass out signing bonuses and lava lamps to new hires than they are to hand them a testing cup.” (“Tight Labor Market Shakes Up Workplace Drug Testing,” Los Angeles Times, December 15, 1999, p. A1.) The job market – in the tech sector and many other industries – is not as open as it was when those observations were made. This may give employers more economic latitude to require drug tests where they feel it is warranted.
Once a company decides drug testing is both desirable and not competitively prohibitive, the question becomes whether and under what circumstances the law allows a company to test its employees for the presence of drugs in their systems. The California Supreme Court ruled in a landmark 1997 case that employers are free to test any job applicant for the presence of drugs. (Loder v. City of Glendale (1997) 14 Cal.4th 846.) The Loder ruling interpreted workers’ privacy rights under the California constitution and so applies both to public and private employers.
One California Court of Appeal has interpreted Loder to allow suspicionless testing of an employee hired on the condition that he pass a drug test. In Hind v. Superior Court (1998) 66 Cal.App.4th 28, the Court of Appeal upheld summary judgment of a wrongful discharge claim brought by a worker who failed a drug test that the worker had delayed until after he went on the company’s payroll. Passing a drug test was a condition of the workers’ employment. “[A] job applicant, who requests and receives a delay in submitting to the preemployment drug test permitted by Loder until after the start of employment, may not evade the employer’s testing requirement postemployment on the ground the applicant thereby became an ‘employee’ and is, consequently, immune from such testing.” (Hind, 66 Cal.App.4th at 34.) If such an employee fails the drug test, he may be fired without violating constitutional privacy protections. (Ibid.) It would appear that if the employer rather than the employee causes the delay, Loder’s otherwise bright line rule would prevent suspicionless testing.
Under Loder, current employees enjoy greater privacy protection than “applicants”. The rationale for the difference in treatment is that an employer presumably can see firsthand whether an existing employee is functioning under the influence of a controlled substance, an opportunity the employer lacks with a job applicant. (Loder, 14 Cal.4th at 883.) As a general rule, an employee may not be drug tested unless the employer has an individualized suspicion that the employee is using drugs or the employee is in a safety- or security-sensitive position. (Smith v. Fresno Irrigation Dist. (1999) 72 Cal.App.4th 147, 160, citations omitted.)
What constitutes “individualized suspicion” to warrant testing of a particular employee depends on the circumstances. The California Supreme Court in Loder offered some clues in explaining why all applicants may be drug tested without individualized suspicion while all current employees may not. In granting greater protection to the current employee, the Supreme Court noted that the employer “can observe the employee at work, evaluate his or her work product and safety record, and check employment records to determine whether the employee has been excessively absent or late.” (Loder, 14 Cal.App.4th at 883.)
At a minimum, then, slurred or incoherent speech, suspicious conduct, uncharacteristically poor work product, an unusually high number of accidents, or excessive absenteeism and tardiness may suffice for an employer to require a particular employee to take a drug test. One Court of Appeal applying Loder has called these “the telltale signs of drug abuse.” (Hind, 66 Cal.App.4th at 598.)
Random drug testing may be an especially effective deterrent to illegal drug use by employees. Thomas Donohue, President of the U.S. Chamber of Commerce, recently said: “Most of the benefit is not that you do the test, but that you’re going to do the test.” (“Panel discusses whether drug tests infringe on privacy,” Ventura County Star, March 3, 2000, p. A9.) Courts have limited the contexts in which random drug tests are allowed. A current employee who occupies a safety or security-sensitive position may be subject to random drug testing. Whether a particular position is safety-sensitive is determined by “the degree, severity and immediacy of the harm posed” by the drug impaired performance of the duties of the position. (Smith, 72 Cal.App.4th at 164.) Where there is a hazardous work environment or hazards in the work itself, the position is likely to be considered safety-sensitive. (Ibid.)
One question no California court has answered so far is whether an employer’s interest in protecting its internal secrets may suffice to warrant random drug testing of employees with access to that information. The reason such a question is so critical in this case, of course, is the central importance to the California economy of high technology and other businesses whose primary asset is confidential intellectual property. A drug impaired employee may, in a moment of diminished judgment, leak sensitive information. Such an employee also may be subject to blackmail.
The U.S. Supreme Court and other federal courts have validated random drug testing of government employees with access to the nation’s most sensitive information. (See e.g., National Treasury Employees Union v. Von Rabb (1989) 489 U.S. 656, 677; 109 S.Ct. 1384, 1397; Harmon v. Thornburgh (D.C.Cir. 1989) 878 F.2d 484, 491-492.) It is unclear whether California courts would treat corporate security as analogous to national security for purposes of the balancing test that must be applied. Given the financial ruin an entity may suffer from employee indiscretion, the Courts may view random drug testing of employees with access to a company’s most critical secrets as sufficiently compelling to outweigh the employee’s privacy interests. If safety is a sufficiently compelling interest in the corporate context, it is difficult to understand why secrecy would not be.
Drug testing on the job raises questions about the extent to which an employee’s otherwise private off-duty conduct becomes the employer’s business. While a tight labor market discouraged many employers from using this expensive screening device, employers may now consider drug testing in the face of changing economic conditions. The constitution of the state of California requires an employer operating in this state to justify such testing of its current employees—but not applicants. Depending on the nature of the particular job the employee holds and the nature of particular employee conduct indicating possible drug induced impairment, drug testing may be necessary or desirable.