Privacy Issues in the Workplace

A. E MPLOYER -R EGULATED D RUG AND A LCOHOL T ESTING

1. G ENERAL L EGAL S TANDARDS In 1997, the California Supreme Court, in Loder v. City of Glendale , ruled that drug and alcohol testing of all applicants for public employment who have been given conditional offers of employment is constitutionally permissible, but that drug and alcohol testing for all current employees who apply for promotions within a public agency is not. 262 The 2008 decision of the Ninth Circuit Court of Appeals in Lanier v. City of Woodburn (9 th Cir. 2008) 518 F.3d 1147, however, has called into question the continued validity of Loder . In Lanier , the Ninth Circuit held that a public employer must demonstrate a “special need” to justify suspicionless pre-employment drug tests of job applicants. Loder involved the validity of the City of Glendale’s blanket drug and alcohol testing program under which all applicants for positions with the City, as well as all current City employees who had been approved for promotion to new positions were required to undergo urinalysis testing. Lanier involved a pre-employment drug testing policy that the City of Woodburn, Oregon applied to all applicants for City employment, and specifically limited its application to positions for which no “a special need” for drug testing was shown. As discussed earlier in the workbook, Leonel v. American Airlines, Inc. 263 illustrates why the sequence of background investigations, medical examinations and drug testing in the hiring process can be a trap for the unwary employer. In Leonel , three HIV positive individuals applied to American Airlines for flight attendant positions. After providing written applications and participating in phone interviews, American flew them to the company's headquarters for in-person interviews. After the interviews, American extended a conditional offer of employment that was conditioned on the results of a background investigation and a medical examination (which included a drug test). Immediately after making the conditional offers, American representatives directed them to go to American’s medical department for medical examinations. The applicants were required to provide a medical history and blood and urine samples for testing. Despite questions which would have revealed whether they were HIV positive, none of the applicants disclosed that they were HIV positive or that they were taking medications for their condition. However, a blood test revealed that the applicants were HIV positive. As a result, American sent letters to the applicants stating that the conditional offers were being withdrawn. The letters explained that the applicants did not fulfill all conditions in that they “failed to be candid or provide full and correct information.” The three rejected applicants sued American alleging that its practice of conducting the medical examination (which included the drug test) before completing the background investigation violated the ADA and the FEHA. Specifically, they argued that it was illegal for American to refuse to hire them for not disclosing their HIV positive status and HIV related medications because a “real” conditional job offer had not been properly made before American obtained medical information from them.

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