Privacy Issues in the Workplace

3. I MPLEMENTATION OF D RUG AND A LCOHOL T ESTING P ROGRAMS AND D UTY TO B ARGAIN a. Necessity of a Written Testing Policy Employers who plan to use reasonable suspicion testing should develop a written policy which notifies employees that they may be subject to drug and/or alcohol testing if the employer has a reasonable suspicion that the employee is under the influence of illegal drugs and/or alcohol at work. The policy should also notify employees of the consequences of a failed drug test. A written policy, however, does not serve as a substitute for the requirement of reasonable suspicion. It instead serves to ensure that testing is implemented in a fair and reasonable manner. Employers also should provide training to all supervisory and management employees responsible for determining whether reasonable suspicion exists to conduct the testing. The training should include recognition of the physical and behavioral characteristics of a person under the influence of drugs and/or alcohol.

Kraslawsky v. Upper Deck Co. 286 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.

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