Is company drug testing legal? It all depends on who you work for, which employees are being tested, and why.
I’m not an attorney, but if I had a quarter for every employee who ever asked me if their company’s drug testing policy was or wasn’t legal, I’d have already paid my way through law school.
My short reply: It depends on who you work for, which employees are being tested, and why.
For a more detailed answer, we have to look to the U.S. Constitution and to the courts.
The Fourth Amendment to the Constitution states: “The right of the people to be secure in their persons … against unreasonable searches and seizures … shall not be violated … but upon probable cause.” Ultimately, however, it’s up to the courts to decide what practices are considered to be ‘reasonable’ and ‘unreasonable.’
Since the mid-1970s, the United State’s top courts have determined that the warrantless drug testing of various parties—including military personal, certain government employees and students—is ‘reasonable’ if the government’s interest (whatever it may be) outweighs the privacy concerns of the individuals it wishes to test. Cases where the court determines the state’s interest to be predominant are known as “administrative search exceptions” to the Fourth Amendment.
In recent years, the United States Supreme Court has upheld such “exceptions” on four separate occasions. Most specific to workplace drug testing, the Court ruled 5-4 in 1989 that the government’s interest in a so-called ‘drug-free workplace’ permitted certain federal “safety sensitive” employees to be drug tested without individualized suspicion (National Treasury Employee’s Union v. von Rabb). That same day, the Court also upheld random testing for railway employees who’d been in an accident, regardless of whether there was reason to believe they were intoxicated on the job (Skinner v. Railway Labor Executives’ Association).
In 1995, the Court expanded upon its dubious legal reasoning in Skinner and von Raab, ruling 6-3 that student athletes may be drug tested without probable cause because, in the majority’s mind, illicit drug use among students had reached near “epidemic” proportions (Veronia School District v. Acton). The Court expanded upon this doctrine even further in 2002, finding that the state may also impose random drug testing upon students who engage in non-athletic extracurricular activities because “the nationwide drug epidemic makes the war against drugs a pressing concern in every school” (Oklahoma Board of Education v. Earls).
Ironically, to date the only time the U.S. Supreme Court has ruled against the state’s ability to impose suspicionless drug testing upon a class of citizens has been when the class targeted for testing were high ranking bureaucrats. In this 1997 case (Chandler v. Georgia), the Court ruled 8-1 against a state law mandating political candidates to ‘drop trou’ before running for public office. In the Court’s view, Georgia’s desire for ‘drug-free’ politicians was not “substantial enough to override … the Fourth Amendment.”
In other words, if you work for the federal government or are an employee in a federally regulated industry (such as commercially licensed drivers), prepare to pee on command or lose your job. If you’re a high school students looking to join the baseball team, the cheerleading squad, or even the chess club, you’re also shit out of luck. But try imposing those same policies upon the lawmakers who are demanding to inspect you and your kid’s bodily fluids, not a chance.
Fortunately, the lower federal courts have taken a less liberal view on random drug testing than their Supreme Court counterparts, notably striking down the suspicionless drug testing of public school teachers (United Teachers of New Orleans v. Orleans Parish School Board, 1998), welfare recipients (Marchwinski v. Family Independence Agency, 2003), and state healthcare workers (Jakubowicz et al v. Dittemore, 2006) in recent years. State courts, often citing enhanced state-specific constitutional rights to privacy, have also typically taken a harder line against the blanket implementation of warrantless drug testing. Troublingly, however, state courts have yet to rule that qualified medical cannabis patients may be exempt from random workplace drug testing—with courts in Oregon (Washburn v. Columbia Forest Products Inc.) and California (Ross v. Ragingwire Telecommunications) recently determining that patients may be fired for testing positive for pot, even if their medical use is in accordance with state law.
Generally though, most states still offer greater protections for private employees. Several states—and even some cities such as San Francisco—have even gone so far as to enact specific laws and regulations restricting how and when private industry employees may be drug tested as a condition of employment. For example, in Connecticut, new employees may only be tested if the applicant has been properly informed in writing beforehand; in Oregon, employers can only demand a drug test under circumstances where they have reasonable suspicion to believe that an employee is under the influence. Several other states impose similar restrictions, many of which you can read online at the American Civil Liberty Union’s website.
Paul Armentano is the senior policy analyst for NORML and the NORML Foundation in Washington, DC. Have a drug testing related question for Paul? You may submit it to: firstname.lastname@example.org.