Privacy Issues in the Workplace

suspicion standards were overbroad as to non-safety/security-sensitive employees (in that factors were not limited to on-duty impaired work performance), and that “a pattern of abnormal conduct or erratic behavior” was too broad to support a conclusion of reasonable suspicion and did not comport with conduct consistent with drug use. The court also concluded that the post accident testing guideline left too much discretion in the supervisor’s hands, given that the supervisor must decide whether “the circumstances of the accident or unsafe act” justified testing. Finally, the follow-up testing component was deemed valid when random testing was monthly with a maximum of twelve tests during a one year period. One California appellate court has held that the state constitutional right to privacy creates a public policy that may serve as the basis of a wrongful discharge claim arising from an employee’s refusal to submit to random drug testing. 282 Another California appellate court has disagreed, stating that refusal to submit to drug testing implicates privacy rights, but not public policy. 283 Wrongful termination claims generally turn upon an analysis of whether the testing program is reasonable.

(See the Liebert Cassidy Whitmore workbook on “Issues and Challenges Regarding Drugs and Alcohol in the Workplace” for more information.)

In summary, if a public agency implements a random drug testing policy, it should limit testing to employees in positions which substantially affect the public safety and/or which provide access to truly sensitive information.

3. I MPLEMENTATION OF D RUG AND A LCOHOL T ESTING P ROGRAMS AND D UTY TO B ARGAIN a. Necessity of a Written Testing Policy Employers who plan to use reasonable suspicion testing should develop a written policy which notifies employees that they may be subject to drug and/or alcohol testing if the employer has a reasonable suspicion that the employee is under the influence of illegal drugs and/or alcohol at work. The policy should also notify employees of the consequences of a failed drug test. A written policy, however, does not serve as a substitute for the requirement of reasonable suspicion. It instead serves to ensure that testing is implemented in a fair and reasonable manner. Employers also should provide training to all supervisory and management employees responsible for determining whether reasonable suspicion exists to conduct the testing. The training should include recognition of the physical and behavioral characteristics of a person under the influence of drugs and/or alcohol.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 91