Privacy Issues in the Workplace

b. Existing Employment Stage The Loder court concluded that the City of Glendale’s practice of conducting a drug and alcohol test on all applicants for promotion (i.e., individuals who were already employed by the City), without regard to the nature of the position sought, violated the Fourth Amendment to the federal Constitution, which guarantees freedom from unreasonable searches and seizures. This aspect of the Loder decision appears to remain in effect notwithstanding the Ninth Circuit decision in Lanier which did not involve review of the public entity’s drug testing policy as to those already employed. The court determined that the reasonableness of such testing depends on the nature and duties of the promotional position, and that such testing would be appropriate only for safety and security sensitive positions. The reason given for treating applicants for initial employment differently than applicants for promotion was that an employer does not have an opportunity to observe applicants over a period of time but can observe its employees to evaluate whether they abuse drugs and/or alcohol.

Bases for reasonableness of testing existing employees is covered in more detail below in other sections of this workbook.

c. Off-Duty Drug Use Issues Employees may complain that drug and alcohol testing allegedly allows employers to intrude on their “recreational” off-duty use of these substances. However, this will usually not occur if employers require testing only upon reasonable suspicion that the particular employee is under the influence of drugs or alcohol on the job . In this way, the focus is not on the employee’s off- duty conduct, but rather the impact of drug used on the employee’s work performance and workplace safety.

Employers can minimize potential privacy right violations in the following ways:

 Implement the drug and alcohol policy fairly, reasonably, and in the least intrusive manner.

 Notify and provide each employee covered by the policy with a copy of the drug and alcohol policy.



Explain the policy to each employee.

 Avoid penalizing an employee for his or her off-duty conduct unless such conduct can be shown to affect the employee on the job.

 Conduct all discussions, interviews and tests in private areas to maintain confidentiality.

 Always act professionally, courteously and in a non-accusatorial manner.



Maintain confidentiality of all documentation.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 85