October 06, 2018

Testing individuals for drugs

Testing individuals for drugs
Bassi v City of New York, 233 A.D.2d 269
Loder v City of Glendale, 14 Cal. 4th 846


The administration of drug tests to employees continues to result in court challenges. The Loder and Bassi cases consider different situations where the courts were asked to determine if drug tests administered to employees and applicants for employment met constitutional requirements.

The Bassi Decision

George Bassi, a New York City firefighter, was terminated from his position because of use of cocaine.

Bassi admitted that he had used cocaine. In addition, he had tested positive in an EMIT test, which was confirmed by GC/MS tests.

But his admitted use of cocaine did not result in his termination. Rather it was his expulsion from a compulsory drug counseling program for "non-compliance" that was the critical factor that led to his dismissal.

Bassi was expelled after he tested positive in the EMIT and GC/MS tests administered to him in August 1994 while a participant in the program.

Was this sufficient to support a determination to terminate his employment as a firefighter?

The Appellate Division said it was, holding that it passed constitutional muster because "it was sufficiently attenuated" from the results of drug tests given to Bassi in April 1994 that had been suppressed for the purposes of making the determination to dismiss him.


The Loder Decision

The California Supreme Court has decided that public employers in California cannot require candidates for promotion to pass a test for illegal drugs in order to qualify for appointment.

Such tests, however, still may be used to screen applicants for initial appointment to positions in the public service.

The City of Glendale had required both "pre-employment and pre-promotion candidates" to pass drug and alcohol tests as a condition of appointment. The policy was challenged by Lorraine Loder, who contended that the requirement unconstitutionally violated a promotion candidate's right to privacy.

To resolve the controversy the courts applied a "balancing test" that weighted the "intrusiveness of the testing against the governmental interest served by the testing,"

The California Supreme Court distinguished between pre-employment testing and pre-promotion testing. The ruling cites guidelines adopted by the U.S. Supreme Court in Treasury Employees v Van Raab, 109 S.Ct. 1384.

In Van Raab the High Court examined the U.S. Customs Service's drug-testing program, which required urine samples from employees applying for promotion to positions involving suppressing the traffic of illegal drugs, requiring them to carry firearms or to handle classified materials, to provide urine samples.

The Justices said this program was subject to the reasonableness requirement of Fourth Amendment.

In other words, the California Supreme Court said, the key to the lawfulness of such tests was whether the drug testing program was a constitutionally permissible search.

Glendale contended that its tests were reasonable and constitutional because it had a strong interest in maintaining a workplace free of the problems created by drug use, "including diminished efficiency, increased absenteeism and added health expenses."

The California Supreme Court disagreed, concluding that pre-promotion drug testing of all employees is not constitutionally reasonable where the program does not consider the nature of the employment or the position sought.

The trial court had ruled that the test was unconstitutional for 36 of the City's 80 job classifications.

Nevertheless, the California Supreme Court held that the drug testing program as applied to new job applicants is constitutionally permissible, if the test is  "administered in a reasonable fashion as part of a lawful pre-employment medical examination that is required of each job applicant."

Why did the Court make such a distinction? The Court explained that "an employer has a significantly greater need for, and interest in, conducting suspicionless drug testing of job applicants than it does in conducting similar testing of current employees."

The Court's rationale was that the employer can observe work performance to determine if a current employee is abusing alcohol or drugs, but employers do not have a similar opportunity to observe potential new hires.

Another case involving drug testing of employees is Skinner v Railway Labor Executives' Association, 109 S.Ct. 1402.

In Skinner the U.S. Supreme Court said that the privacy expectations of railroad workers were diminished by employees' working in an industry that was closely regulated to ensure safety, a goal dependent in substantial part on the health and fitness of these employees.

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