Privacy Issues in the Workplace

Kraslawsky v. Upper Deck Co. 284 The employer informed its employee, Kraslawsky, that it would like to hire her as an executive secretary, conditioned upon her undergoing a medical examination and successfully completing a drug and alcohol test. Kraslawsky took the test and it revealed the presence of drugs which Kraslawsky claimed were prescription drugs. She obtained a doctor’s note confirming her need for medication and she was hired. Before assuming the position, she signed a copy of the employee handbook that stated that the company “may require an employee to submit to monitored tests whenever it has reasonable cause to believe that an employee is under the influence of intoxicants…. An employee’s refusal to consent when requested may result in disciplinary action.” Eight months later, Kraslawsky was asked to drive to a medical facility and provide a urine sample for a drug test. She refused to take the test and was dismissed. The company argued that it had reasonable cause to test Kraslawsky because she signed the employee handbook and since she had appeared to be under the influence of intoxicants. Her supervisor claimed that her “speech was slurred, that her demeanor was lethargic, that her eye contact was not there.” Kraslawsky refuted the supervisor’s observations and stated that she answered all of the questions in her normal manner of speech and that the supervisor possessed no qualifications or training to determine whether someone was under the influence of intoxicants. Ultimately, the court held that there was a factual question as to whether the company had reasonable suspicion to test Kraslawsky for drugs and that it could not rely merely on its personnel rules as a basis for testing.

b. Duty to Bargain Employers will almost always have a duty to bargain with the exclusive representative of their employees before implementing a drug or alcohol testing program since it affects the terms and conditions of employment. The duty of local agencies in California to bargain with representatives of their employees is governed by the Meyers-Milias-Brown Act (MMBA). 285 In Holliday v. City of Modesto , the court held that employee drug testing constituted a condition of employment, and was subject to negotiation with the union under the MMBA. 286 In Holliday , the City of Modesto fire chief ordered a firefighter to submit to a drug test based on information that the firefighter possessed marijuana. While the Fire Department had a rule prohibiting the possession or use of illegal drugs or narcotics, the Department did not have a negotiated drug testing policy. Therefore, the court held that the fire chief’s order that the firefighter submit to a drug test was unlawful and in violation of the MMBA.

In light of the Holliday case, local government employers are prohibited from testing employees for drugs and/or alcohol without a negotiated policy.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 92