Drama of the Law: Free Speech: Constitutional Issues s1

Drama of the Law: Employment Issues

Employment Issues Drug Testing of Employees

Answer Guide for Discussion Questions

Was drug testing part of the contract between Shelly and Herman?

No, there wasn't anything written in their agreement, and Herman never mentioned it when he and Shelly signed the agreement.

Because of "public safety" matters, would a drug test be constitutional here?

When dealing with governmental employees in situations where drug use could threaten public safety, drug testing has been upheld (Electrical Workers Local 1245 v. Skinner, 913 F.2d 1454 (9th Cir. 1990)) on the basis that the government's interest in promoting public safety outweighed the employee's privacy interests. However, here, there is no governmental interest or actions.

Can Herman test his employees for drugs?

Employers, as well as society as a whole, are concerned about workers whose ability to perform is impaired as a result of drug use because drug use can pose such a substantial threat to the safety of others. State laws on drug testing vary, and some state constitutions may prohibit private employers from drug testing. Generally, the employer must possess serious and legitimate reasons to institute a drug testing program. If the employee's job does not involve sufficient safety demands, it will not be upheld, unless the employer can demonstrate some type of reasonable basis for suspecting the individual employee of drug use. Herman's arguments do not hold a great deal of water. The drug testing may have been part of the contract with Tony, but the tests are unreliable, and Nurse Reemer may have committed an act of defamation or invasion of privacy. As for Shelley, the drug testing was never part of her contract, and Herman, especially with his question about pregnancy, has violated her privacy rights. Herman should first look to any less intrusive measures to detect drug use. Second, if necessary, he should institute a legitimate drug testing program with only those tests required to detect the presence of drugs, and must insure that the test results are reliable. He should describe how the tests are interpreted and warn employees of the ramifications of testing "positive" or refusing to take the test. If the employe tests "positive" he should be tested again and allowed to explain any "positive" results. And finally he has an obligation not to reveal the information obtained by the test.