The fourteenth amendment of the U.S. Constitution protects the privacy of Americans against unreasonable searches and seizures unless there is probable cause to do so. Drug testing in the workplace tests the balance of an individual's right to personal property versus the right of an employer to operate a safe, drug-free workplace.
After all, employees can be held liable by the accidents caused by its employees who are under the influence. In addition, employers are responsible for maintaining a safe environment for employees, who could be at risk if a co-worker is conducting hazardous activities under the influence. Despite these legitimate business concerns, the right to privacy is a fundamental and protected right, and there are limited scenarios in which an employer can legally drug test employees.
· Federal Regulations - Because it is deemed to be in the public interest, Federal laws require random drug testing programs for jobs that serve certain public security and safety functions. This may extend to California residents who work for federal agencies, such as the Department of Transportation, the Federal Aviation Administration, and the Federal Railroad Administration. For example, air traffic controllers and airplane pilots are subjected to random drug testing.
· Employers With State Contracts or Grants - The California Government Code 8355 requires that any employer that has a contract with, or grant from, the state must provide a "drug-free workplace."
· Random Drug Testing - California employers are generally prohibited from asking employees to submit to random drug testing. This is because employers were administering "suspicionless" testing, which courts have determined to be a violation of privacy rights. The exception to this may be positions that are "safety sensitive" and that performing those jobs under the influence would create an imminent safety or health threat. This is a high burden for an employer to meet, and is relatively untested in the courts.
· Drug Testing Cannot Be Discriminatory - Courts have determined that California employers may drug test employees, if it is not done so in a discriminatory manner. Instead, as probable cause is the only permissible basis to overcome a person's privacy rights, the law in California permits drug testing on the basis of a "reasonable suspicion" that the employee is abusing drugs. This request must be based on "objective facts" and "rational inferences".
Protect Your Legal Rights
If your employer is asking you to submit to random drug testing, or if you believe that you are being singled out for a drug test, you should consult with an attorney. You have a right to privacy, and there are limited circumstances in which your employer can ask you for one. The attorneys at Moss Bollinger have spent years standing up to employers and may be able to help you. If we accept your case, we work on a contingency basis and we collect nothing up front. Call Moss Bollinger at 800-249-1175 to schedule an appointment or contact us online.