Constitution limits pre-employment drug testing by public employers
March, 2008
Last week, the Ninth Circuit Court of Appeals issued a ruling that significantly limits the ability of public employers to require pre-employment drug tests. The ruling does not apply to private employers, however. According to the court, a public employer cannot require applicants to pass a pre-employment drug test unless the employer has a "special need" for the test. If there is no "special need," a pre-employment drug test violates the Constitution.
What is a special need? The court provided some examples of special needs that would permit pre-employment drug testing, including:
- High-risk, safety-sensitive jobs that may pose a danger to the public such as jobs involving the operation of dangerous equipment, operation of railway cars, armed interdiction of illegal drugs, work in a nuclear power facility, work involving matters of national security, and work involving operation of natural gas pipelines.
- Jobs in which the employee will be responsible for the safety and security of children, such as teachers and administrators.
- Situations in which there is a known drug problem amongst the targeted population for the job.
What is not a special need? A public employer's general concerns about the problems drug use causes to society are not specific or substantial enough to constitute a special need.
What this means for your business. If you are a public employer and are considering implementing a drug-testing policy or already have such a policy in place, it is important that you contact your Bullivant employment attorney immediately to review the policy.
If you are a private employer, this new court ruling serves as a reminder of the legal pitfalls that can arise when drug testing applicants and employees. Private employers should have all of their policies and procedures, including drug-testing policies, reviewed by their Bullivant employment attorney(s) at least annually for compliance with all newly enacted state and federal laws and regulations.