Privacy Issues in the Workplace

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. ii. Post-Accident Testing The second exception to the individualized “reasonable suspicion” standard allows testing of employees following certain accidents if an employer can show a history of severe accidents related to drug or alcohol abuse, or if it can prove that there is catastrophic risk to the public unless certain employees are drug-free and able to devote constant and uninterrupted attention to their jobs. In Skinner v. Railway Labor Executives , 274 the United States Supreme Court approved post-accident blood and urine testing, without individualized suspicion, of railway workers in the following circumstances:

 immediately following a train accident involving a fatality,

 release of hazardous materials accompanied by an evacuation,

 a reportable injury or damage to railroad property of $500,000 or more, or

 collision resulting in a reportable injury, or in damage to railroad property of $50,000 or more.

An employer, therefore, may be able to justify post-accident testing of employees without a showing of individualized suspicion. However, it would be necessary to show a history of drug/alcohol abuse and/or a high risk of danger to the public. Any post-accident testing procedures should be carefully tailored to follow the basic principles set out in Skinner.

Excluding one of the two limited circumstances discussed above, employers may not test employees without reasonable suspicion.

Inadequate History or Catastrophic Risk A California court found the post-accident drug testing of employees in the Office of Personnel Management (OPM) unlawful in the absence of reasonable suspicion. 275 OPM’s policy provided for testing whenever there was an on-duty accident that required hospitalization or caused property damage over $1,000. The court distinguished this drug testing plan from the one approved in Skinner in that in the OPM policy, a much lower threshold damage amount permitted drug testing ($1,000, compared to at least $50,000 in Skinner ). The court also noted that the OPM did not make a showing of a past history of drug/alcohol abuse, as the railroad did in Skinner . Moreover, the court found that the risk of harm to the public in the event of accident by an impaired OPM worker to be “trivial” compared with the potential for catastrophic harm associated with an impaired railway worker controlling a train.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 91