Privacy Issues in the Workplace

 The manner in which the test is given (no surgical intrusion, advance notice of testing given, no physical observation of providing urine specimen).

United Teachers of New Orleans v. Orleans Parish School Board , 270 The Fifth Circuit Court of Appeals held that a school district may not subject its employees to drug testing simply because they were injured on the job, as that policy violates the protection against unreasonable searches and seizures under the Fourth Amendment of the United States Constitution. This case involved two Louisiana school districts with a policy that subjected all teachers, aides and clerical workers who are injured on the job to drug testing. Under the policy there was no requirement that the injury occur under circumstances suggesting drug use was involved. The teachers’ union filed a lawsuit in federal court to enjoin the policy. The United States District Court for the Eastern District of Louisiana refused to enjoin the drug testing. The teachers appealed. The Court of Appeals reversed. The court held that the policy violates the Fourth Amendment guarantee against unreasonable searches and seizures because the policy does not require that there be a suspicion of drug use related to the injury. The court held that there must be adequate individualized suspicion of wrongful drug use to require testing.

c. Permissible Testing in the Absence of Reasonable Suspicion In March 1989, the United States Supreme Court carved out two significant exceptions to the individualized “reasonable suspicion” standard. i. Employees Involved with Drug Interdiction or Who Carry Firearms First, in National Treasury Union v. Von Raab , 271 the court approved drug testing of employees as a condition of transfer or promotion into positions that are directly involved in the interdiction of illegal drugs or who are required to carry firearms in the line of duty because such employees have a diminished expectation of privacy in respect to the intrusions occasioned by a urine test. The court found a sufficient governmental interest in ensuring that front-line drug interdiction personnel are physically fit, free of drug use and have unimpeachable integrity and judgment. The court also found that the public interest demands effective measures to prevent promotion or transfer of drug users into positions requiring the employee to carry firearms. Those positions may demand the use of deadly force. The risk of death or injury to members of the public is great, so that even a momentary loss of attention can have disastrous consequences. The court did not specifically address the issue of whether or not employees currently occupying positions involved in drug interdiction and requiring the carrying of firearms could be tested for drugs. The holding implies, however, that the court would approve such tests because it recognizes that this class of public employees has a “diminished” expectation of privacy. If an agency can show the necessity of such tests to protect the public and assure successful performance of safety functions, the extent of governmental interest may well outweigh the intrusion into the privacy of employees in those limited positions. It would be important, however, for the agency to make that particular showing. Otherwise, testing of currently employed personnel should only occur if there is reasonable suspicion as outlined above.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 88