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When Workers Say "No" to Drug Testing: Issues in the Public and Private Sectors

NCJ Number
131791
Journal
Washington University Journal of Urban and Contemporary Law Volume: 38 Dated: (Fall 1990) Pages: 337-367
Author(s)
E Hoelscher
Date Published
1990
Length
31 pages
Annotation
Employers who institute drug testing programs may encounter a variety of legal and practical problems, although court decisions involving drug testing cases essentially attempt to balance worker interests and employer concerns.
Abstract
The fourth amendment protects individuals from unreasonable search and seizure. Courts have held that urinalysis, breath analysis tests, and blood tests constitute searches under the fourth amendment. In drug testing situations, courts weigh employee privacy interests against government interests in effective workplace operation. Public sector employees challenging drug testing schemes have brought equal protection claims against their employers and have asserted that drug testing programs infringe on a constitutional right of privacy distinct from the privacy factor in search and seizure claims. Employees have contended that an employer's taking and analysis of urine samples constitutes an infringement and that an employer's demand for medical information on consent forms also violates their privilege against self-incrimination. Privacy interests of plaintiffs in private sector drug testing cases differ from claims of public employees. In most jurisdictions, private sector workers bring actions for tortious invasion of privacy or breach of common law right of privacy. Workers challenging drug testing schemes have also sued employers for intentional infliction of emotional distress and for defamation. Union and arbitration issues associated with drug testing and relevant provisions of the National Labor Relations Act are discussed. 207 footnotes