Privacy Issues in the Workplace

Examples of observable phenomena or abnormal conduct may include the following kinds of objective indicators:



Bloodshot eyes



Slurred speech

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Alcohol odor on breath



Unsteadiness in walking

 An accident involving employer property



Physical altercation



Verbal altercation

 Behavior that is so unusual that it warrants summoning a supervisor, manager or someone else for assistance  Possession of substances in violation of the employer’s drug and alcohol policy

 Information obtained from a reliable person with personal knowledge

These are not the exclusive indicators for determining reasonable suspicion. The number of reasonable suspicion indicators and the compelling nature of the evidence attached to each indicator will determine whether the employer had sufficient reasonable suspicion to test. Consequently, any one indicator above or in combination with other indicators will not necessarily indicate reasonable suspicion. Each situation will have to be individually examined, but obtaining as much evidence of impairment as possible can only strengthen an employer’s case. Thus, before requiring an employee to submit to a drug and/or alcohol test, the employer should gather as much evidence as possible and document in writing the specific facts and rational inferences from these facts which reasonably warrant suspicion that the particular employee to be tested is under the influence of drugs or alcohol.

Courts consider the following factors when balancing the employer’s interest in testing against the employee’s privacy interests:

 Past, documented problems/accidents resulting from drugs and/or alcohol;

 The risk of safety hazards from impaired employees upon the public;

 Exposure of covered employee to a criminal element and controlled substance;

 The required carrying of a firearm by covered employees;

 Access to truly “sensitive” information;

 Diminished privacy expectations of covered employees;

 That employee works in an industry which traditionally has been highly regulated; and

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 87