Drug and Alcohol Testing in the Workplace
| Publication year | 1988 |
| Pages | 457 |
1988, March, Pg. 457. Drug and Alcohol Testing In the Workplace
Drug and alcohol abuse in the workplace continues to be a major concern to employers. Increased awareness of staggering statistics and governmental recommendations have reinforced the demand for action. Employers are confronted with reported estimates of losses due to alcohol and drug abuse in the workplace which exceed $100 billion a year. These costs include increased absenteeism, on-the-job accidents, medical bills, insurance claims and premiums, loss of productivity, stolen property and business failures.(fn1)
The statistics help to dramatize the problem but do little to guide concerned employers and counsel, especially in light of recent court decisions striking down random drug testing of government employees.(fn2) Employers are still debating whether or not to implement a drug and alcohol testing policy.(fn3)
One of the basic premises of this article is that any knowledgeable employer can lawfully implement a drug and alcohol testing policy within the state of Colorado. However, a policy may not be appropriate for every employer. There are numerous legal issues created by drug and alcohol testing, and some employers are exposed to a higher legal risk than others when adopting a testing policy.
In addition to the legal questions, employers need to weigh the costs of testing and the impact of any testing policy on employee relations against the anticipated benefits of such a policy. A decision to establish a screening program should include a careful analysis of at least three factors: (1) knowledge of or concern about impaired performance at the worksite due to drug or alcohol abuse; (2) the impact of abuse upon the health, safety, security and productivity of employees; and (3) supportive or alternative means to detect drug or alcohol use in the workplace.(fn4) The potential benefits from testing simply may not merit the costs and inherent risks associated with screening.(fn5)
The Colorado appellate courts have rendered no decisions which impede an employer from rejecting an applicant who tests positive on a properly administered test for drugs or alcohol or who refuses to take a pre-employment test. However, policies adopted by employers forcing employees to undergo tests for alcohol or drug use have been "tested" in federal and state courts under a variety of unique legal theories. Employees have launched attacks using several amendments to the U.S. Constitution as a basis for their arguments.(fn6) In addition, the U.S. Code provides impetus for specialized employee claims. Finally, state common law offers numerous theories upon which employee claims have been presented. These efforts have met with varying and, in most cases, limited degrees of success.
The Fourth Amendment to the U.S. Constitution protects individuals against unreasonable searches and seizures. Claims based on this Amendment are likely to succeed if (1) discipline or termination resulted from a random or unannounced test; (2) the employer is public or engages in government contract work; and (3) the employee has a legitimate expectation of privacy in his or her job.(fn7) However, employers in those areas whose policies permit testing on an announced standard, such as a "reasonable suspicion of drug or alcohol use," have little difficulty in persuading judges to approve their policies.(fn8) In addition, in some heavily regulated industries, even random testing of employees has been upheld.(fn9)
Other novel constitutional arguments challenging testing policies have been made under the following Amendments: First...
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