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Workers, Drinks, and Drugs: Can Employers Test?

NCJ Number
107749
Journal
University of Cincinnati Law Review Volume: 55 Issue: 1 Dated: (1986) Pages: 127-151
Author(s)
M S Cowan
Date Published
1986
Length
25 pages
Annotation
This paper examines legal issues involved in employers' testing employees for drug use.
Abstract
The U.S. Constitution requires a balancing of the employer's need for employee drug testing against employees' privacy interests. Where safety is involved, most courts have found that testing by a public employer is a reasonable intrusion. Courts and arbitrators, however, have placed some limitations on the implementation of drug and alcohol testing. Most authorities, for example, have required employers to reasonably suspect an employee of drug or alcohol use before administering a test. In the union sector, bargaining will be required before employers may test for drug and alcohol if testing constitutes a condition of employment. Whether or not an employer must bargain to obtain the right to test employees, the employer may have to notify employees of the rule permitting testing and the criteria that establish a violation. Under the fourth amendment, testing procedures must set forth specific standards for implementation, and they must be reasonable. Under the due process clause, public employers must provide employees with a hearing to challenge the results of a drug or alcohol test. Public employers may be required to preserve a breath, blood, or urine sample to allow independent testing by the accused employee. Due to State and Federal laws that prohibit discrimination against handicapped employees, employers may not be permitted to discharge employees who test positive unless they refuse treatment. 180 footnotes.