Privacy Issues in the Workplace

American Federation of Government Employees, Local 1533 v. Cheney 281 The Ninth Circuit Court of Appeals disapproved of blanket drug testing of employees with clerical positions, such as pathologists and dental hygienists. And, in Luck v. Southern Pacific Transp. Co ., 282 a California court found that a computer programmer was illegally fired for refusing to provide a urine sample as part of an unannounced drug test because the employee did not perform a safety-sensitive job and the employer had not shown a compelling interest in detecting drug usage by the particular employee. As part of a judicial analysis of drug testing plans by courts throughout the country, a district court in Northern California, in American Federation of Government Employees v. Derwinski , 283 offered a specific constitutional analysis of issues such as randomness, reasonable suspicion, post-accident and follow-up testing. The court ruled that certain positions were not sufficiently safety- or security-sensitive as to justify random testing; that reasonable suspicion standards were overbroad as to non-safety/security-sensitive employees (in that factors were not limited to on-duty impaired work performance), and that “a pattern of abnormal conduct or erratic behavior” was too broad to support a conclusion of reasonable suspicion and did not comport with conduct consistent with drug use. The court also concluded that the post accident testing guideline left too much discretion in the supervisor’s hands, given that the supervisor must decide whether “the circumstances of the accident or unsafe act” justified testing. Finally, the follow-up testing component was deemed valid when random testing was monthly with a maximum of twelve tests during a one year period. One California appellate court has held that the state constitutional right to privacy creates a public policy that may serve as the basis of a wrongful discharge claim arising from an employee’s refusal to submit to random drug testing. 284 Another California appellate court has disagreed, stating that refusal to submit to drug testing implicates privacy rights, but not public policy. 285 Wrongful termination claims generally turn upon an analysis of whether the testing program is reasonable.

(See the Liebert Cassidy Whitmore workbook on “Issues and Challenges Regarding Drugs and Alcohol in the Workplace” for more information.)

In summary, if a public agency implements a random drug testing policy, it should limit testing to employees in positions which substantially affect the public safety and/or which provide access to truly sensitive information.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 93