Drug Testing: Rights and Limitations

Rights and the Constitution

The United States Constitution is the legislation that forms the basis of the American system of government. It also defines the rights and freedoms of individual citizens.

What are the Protections in the Constitution?

The government is not allowed to take away rights to free speech, freedom of the press and the right to practice a chosen religion. There also protection against self-incrimination (saying or doing anything that applies guilt in a crime) and unreasonable search and seizure. This means that no government agency has the wholesale right to enter private property or take private possessions. There are definite safeguards and steps to follow in these instances.

Drug Testing and Search and Seizure

The search and seizure amendment have been applied to mandatory drug tests for employees. It has been argued that obtaining a person's blood or urine is a form of unreasonable search and seizure.

The amendment generally protects government workers but it has been applied to the private sector where tests are conducted because of government requirements.

The court agreed that this was an issue covered by the Fourth Amendment. However, it also concluded that the need for public safety and security overrode the privacy rights of the individual workers. In another instance, the court decided that drug testing was appropriate and necessary for employees of the Customs Drug interdiction program.

What Impact do These Decisions Have on Individuals?

The tone of the rulings from the courts is a common sense approach. Some workers must be tested in the interest of public health and safety or national security. Employers must provide testing that is both accurate and sensitive to the privacy of the workers. If these conditions are met, then the courts tend to allow the testing against the challenges of unreasonable search and seizure.

Therefore, in most cases, drug testing for employees even where there is no suspicion of drug use is generally allowed. There are exceptions. The California Supreme court ruled that drug testing was not allowed for employees seeking promotions but was permitted for new job applicants. It was reasonable for new applicants to expect medical testing as part of a legal medical exam before they were hired.

In other cases, tests were considered constitutional at regular intervals that could be a few as every four years in some work situations.

What About Random Drug Testing?

Many courts have said that random testing (tests done spontaneously without prior notice to the worker) are allowable. The right to test randomly has been approved in many industries where public safety is an issue. These include:

• Oil and pipeline industry
• Airline industry
• Nuclear power industry
• Mass transit industry
• Federal employees who drive vehicles
• Correction officers
• Army civilian guards
• Chemical weapon plant workers
• Law enforcement
• People with top government security access
• People who teach or work with children


What Determines Who Can be Tested and How Often?

Unions, as long they are fairly representing the workers, can waive the right on behalf of their members to make constitutional challenges about drug testing.

The courts look at the goals of the employer applying for the right to test for drugs. They may not grant the right if the employer simply wants a drug-free workplace as a personal statement of preference or a way to promote an efficient staff.

The courts will weigh larger issues. If there does seem to be a genuine concern about public safety or protection of property, then they will tend to be more lenient in granting the right to test for drugs. A security guard who carries a firearm of the job may be subject to testing. However, the file clerk in the office may not be as that job carries no threat to public safety.

Drug Testing is not as clear cut when done as part of an investigation into specific incidents. It has been ruled that testing cannot be done randomly on employees even in workplaces where testing is allowed. For example, if a policeman gets into a political argument with a government official, the employer may not arrange a drug test on the basis of that incident. It is seen as punitive and in violation of civil rights.