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Workplace Drug Testing Court Cases

With the rapid cannabis legalization throughout a lot of states in the United States, coupled with the opioid and methamphetamine crisis, there are many companies that are now conducting pre- and post-employment drug screenings. Workplace drug testing has also produced false positive drug test results for those who are clean, and has cost many individuals their livelihoods and means to support their families; and in some cases, a court date with the US Supreme Court.

Although there are Supreme Court cases that support mandatory drug-testing policies in the workplace, there are some cases that protect the rights of individuals who have been given a random drug test without reasonable suspicion. It’s also apparent that the US Supreme Court supports the results of drug testing workplace programs because gas chromatography-mass spectrometry (GC-MS) tests have proven extremely accurate, and mistakes as false positives are less likely to occur.

The Dependability of Drug Testing

The dependability of drug testing techniques for the presence of drugs or their metabolites has been documented by some courts, and that reliability does play a role in the country’s highest court’s decisions. However, little attention has been paid to whether or not the drugs quantities tested for actually pose any risk to the productivity, integrity, or safety within the workplace. With 2019 in the rearview mirror and 2020 fast approaching, the most common illicit drug thus far revealed in the workplace is cannabis, for which the adverse effects are comparatively slight and disputed.

What’s even more shocking is that far less attention has been applied to the deterrent value or preventive value of workplace drug testing. Do drug testing programs really help to lower employee drug use? The Supreme Court also seems to be uninterested about the facts related to these questions, which could impact how and when a company could conduct a random drug test in the workplace.

On the other hand, some Superior Court decisions have mentioned that a false positive drug test should not automatically disqualify an employee from employment or be shared with law enforcement officials as a leading factor to support these testing programs. However, the courts, by and large, have not implied much concern about the ramifications of such positive workplace drug testing results.

Statutes Concerning Employment Drug Testing

The silence by the judicial system on these issues oftentimes results in a growing uniformity in drug testing practices in the private sector and public sectors. Testing programs promoted by statutes such as the Omnibus Transportation Employee Testing Act (OTETA) and the Drug-Free Workplace Act (DFWA) impose strict restrictions on the legal sanctions that can be enacted for such positive test results, or the disclosure of such results. Public sector and private employers whose drug testing programs are lacking these restrictions, in most cases, are less likely to be subjected to judicial scrutiny.

When it comes to pre-employment and post-employment distinction in the public sector, the factors that hold weight regarding the constitutionality of workplace drug testing programs seem to relate directly to the results of a drug test. Some employers allow employees to continue working while they wait for their retest results; however, some do not. In some cases, the employee is required to pay for the retest in order to prove their innocence.

Other factors that directly relate to the reasonableness of random workplace drug testing that could lead a court to rule in favor of the employer is that the courts view pre-employment drug testing as reasonable. One issues relevant to post-employment drug testing is whether or not an employer’s can observe an employee at work and issue a random drug test based on a personal observation. The courts view this sometimes as inconclusive evidence about whether or not an employee is impaired by drugs and often rule in favor of the employer.

The Distinction Between Pre- and Post-Employment Testing in Superior Court Workplace Drug Cases

A pair of Superior Court workplace drug cases indicate the importance of the distinction between pre-employment and post-employment drug testing:

1. Superior Court Case# 878 F.2d 484, D.C. Cir. 1989 (Harmon vs Thornburgh)

The appellate court ruled that drug testing programs for current US Justice Department employees and the department’s antitrust lawyers could not be conducted due to the insufficient nexus between drug use and work performance. Conducting urinalysis drug testing without proper suspicion would be a violation of the employees’ privacy rights. This same ruling also applied to the drug testing of state and federal prosecutors who were prosecuting drug cases.

2. Superior Court Case # 928 F.2d 1185, D.C. Cir. 1991 (Willner vs Thornburgh)

In another court case, pre-employment drug testing was also found to violate the Fourth Amendment to the Constitution on similar grounds. The court found no distinction between pre-employment drug testing without suspicion and post-employment drug testing without suspicion, and prevented the Department of Justice from testing job applications applying for positions when current occupants of those positions could not legally be tested.

The Conclusion to Workplace Pre/Post-Employment Drug Testing

If the courts can figure out what’s constitutional and what’s not when it comes to random drug testing, there’s a good chance it could set a universal standard for post-employment drug testing. Although pre-employment drug testing cases appear to hold weight with the courts, there are some Superior Courts that have heavily relied on the “Harmon” case to base their decisions and rulings on drug testing in the workplace. To see more drug-related court cases unearthed by your drug testing advisors, click here.