VII. Drug and Alcohol Testing

• Library: Municipal Law Deskbook (ABA) (2015 Ed.)

VII. DRUG AND ALCOHOL TESTING

Public-sector employers are bound by the Fourth Amendment prohibition on unreasonable searches and seizures.¹⁵³ As one court explained, "drug testing is a form of surveillance. . . . [I]t reports on a person's off-duty activities just as surely as someone had been present and watching. It is George Orwell's 'Big Brother' Society come to life." ¹⁵⁴

The Supreme Court has held that drug testing of public employees implicates their Fourth Amendment rights to be free from unreasonable searches and seizures.¹⁵⁵ That does not mean that employers may never test for drug and alcohol use, nor does it mean that a warrant is required prior to mandating such a test. Instead, the Court insists on balancing the intrusion into the employee's rights against the promotion of legitimate governmental interests.¹⁵⁶ Thus, drug testing of employees who are in safety-sensitive positions in order to prevent accidents and casualties is permissible.¹⁵⁷ Critically, the Supreme Court has also held that reasonable suspicion is not always a requirement before a government employer can compel drug testing. Instead, "where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion." ¹⁵⁸

The Court has also found that pre-employment testing by government employers is permissible in certain circumstances. For example, pre-employment drug testing is permitted for employees who are directly involved in drug enforcement activities and for employees who will be required to carry firearms in the line of duty.¹⁵⁹ In the same case, the Court ruled that a government employer could reasonably require drug testing of employees who would have access to classified information.¹⁶⁰ The Court was not willing, however, to rubberstamp the employer's position that positions as diversified as accountants, baggage clerks, and electric equipment repairers would actually have access to such information. The Court therefore remanded the case to the lower court for additional factual findings.¹⁶¹

Building on the reasoning developed in Skinner and Von Raab, the Court held in Chandler v. Miller that mandatory drug testing of candidates for elected office was not constitutional.¹⁶² The Court rejected claims that "the use of illegal drugs draws into question an official's judgment and integrity; jeopardizes the discharge of public functions, including antidrug law enforcement efforts; and undermines public confidence and trust in elected officials." ¹⁶³ The Court instead found that "[n]othing in the record hints that the hazards respondents broadly describe are real and not simply hypothetical for Georgia's polity." ¹⁶⁴

Following Von Raab and Skinner, the lower courts have addressed in numerous cases the scope of permissible testing. The court held in one case that the employer did not have justification to submit a custodian to random, suspicionless testing because there was no pervasive government regulation that resulted in diminished privacy expectations and because there was no substantial risk of harm associated with the custodian position. As such, the court ruled that the employer did not have any special need that warranted random testing.¹⁶⁵

Courts have generally upheld the right of employers to subject police officers to drug and alcohol testing. For example, the Second Circuit upheld the New York Police Department's policy to subject all police officers to breath testing if they discharged their firearm in an incident that resulted in death or injury to any person. The court held that the primary purpose of the policy was personnel management and maintenance of public confidence and that the...