Privacy Issues in the Workplace

Currently, however, the testing of applicants is permissible at this stage only upon a showing of a “special need.” In Lanier the Ninth Circuit Court of Appeals reasoned that notwithstanding the public entity’s interest in addressing a generalized societal drug use problem, pre-employment, suspicionless drug testing violates a job applicants’ Fourth Amendment protection against unreasonable searches and seizures unless the entity can demonstrate that the particular position is safety-sensitive and involves a danger to the public. In Lanier , the plaintiff applied for a job as a page with the City of Woodburn’s public library. She accepted a conditional offer for the position subject to her successful completion of a background check and pre-employment drug and alcohol testing. She refused to take the drug test and the city rescinded its job offer. The Ninth Circuit held that the city’s drug testing policy was not unconstitutional on its face because the city could require applicants for certain positions to take a drug test. However, the court held that the city’s policy was unconstitutional as applied to Lanier and the library page position because no “special need” was shown to justify the testing. The court in Lanier explained that the public entity there was unable to make a substantive showing of how drug abuse within the city affected job performance in the past. In addition, there was no evidence that library pages cared for children or were in a position to exert influence over children. The mere presence of children in the library was insufficient to justify suspicionless drug testing of all applicants. In contrast, the court recognized that school teachers and school administrators can be drug tested prior to employment because of their direct role in children's lives and because of the obvious social interest in protecting children. Finally, the court held that the library page position was not safety-sensitive merely because it had been characterized as such in the city's internal policies and procedures manual. Safety-sensitive positions are those jobs where individuals perform work that involves a danger to the public. The following are examples of jobs previously found to pose a danger to the public: operating railway cars, operating dangerous instrumentalities such as heavy trucks used to transport hazardous material, work regarding national security, work in a nuclear power facility, work in the aviation industry, work involving the enforcement of drug laws and operating natural and liquefied natural gas pipelines. In order to avoid privacy violations and illegal search claims, employers should take care to identify those positions for which there exist a “special need” for pre-employment drug testing. Employers should inform applicants for these positions that their pre-employment physical examination will include a drug and alcohol screen. It is probably not sufficient notice if applicants are merely aware that blood or urine tests will be conducted. Specific written notice should be provided at the beginning of the application process. Notice of such testing can best be accomplished through a written consent form given at the start of the application stage. An employer should also give the applicant a copy of its drug and alcohol policy. Of course, the results of the medical examination and test on which the employer conditions an offer of employment must remain confidential and must be kept on forms that are separate from the applicant’s other records.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 84