JUST SAYING NO TO DRUG TESTING

The desire for a drug-free workplace is no longer sufficient grounds for a public employer to require pre-employment drug testing of job applicants who have been given conditional job offers.

In Lanier v. City of Woodburn, Janet Lynn Lanier applied for a job as a library page at the city's library. Lanier accepted a conditional job offer for the position, though her job offer was subject to the successful completion of a background check and pre-employment drug and alcohol test. Lanier refused to take the drug test and the city rescinded its job offer. Lanier challenged the city's policy of requiring all job applicants for city positions to submit to a drug test as part of pre-employment screening. Lanier argued that the city's drug testing policy violated both the Fourth Amendment of the U.S. Constitution and her privacy rights under the Oregon state constitution. The 9th Circuit held that the city's drug-testing policy was not unconstitutional on its face because the city could require certain job applicants to take a drug test prior to employment. But the court also held that the drug-testing policy was unconstitutional as applied to Janet Lanier and the library page position because no "special need" existed to justify the suspicionless drug test.

The issue surrounding whether an employer may compel an applicant or current employee to take a drug test is rooted in the debate over privacy rights. The Fourth Amendment of the U.S. Constitution requires the government to respect "[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures." This restraint generally bars a search or seizure absent individualized suspicion. Searches conducted without grounds for suspicion of particular individuals have been upheld, but only in certain limited circumstances, including brief stops for questioning or observation at a fixed Border Patrol checkpoint or sobriety checkpoints, and administrative inspections in closely regulated businesses.

In addition to the Fourth Amendment right against unreasonable searches and seizure, Article I, Section 1 of the California Constitution expressly guarantees an individual's right to privacy. In Hill v. N.C.A.A. (the leading case interpreting one's right to privacy under the California Constitution), the California Supreme Court identifies the core values protected as the right to informational privacy and autonomy privacy. Informational privacy deals with the right against the unauthorized dissemination or misuse of confidential information. Autonomy privacy refers to the federal constitutional tradition of protecting individuals from government intrusion into certain personal and intimate matters. It is against this backdrop of federal and state privacy protections that a government employer's ability to engage in certain intrusions, such as suspicionless drug testing, against employees and applicants for employment is called into question.

Prior to the Lanier decision, public employers in California had free reign to conduct suspicionless drug tests on all job applicants for all vacant positions. The city of Glendale, for example, once required new applicants (as well as current employees seeking promotion) to take a drug test as a condition of employment. The drug test was administered as part of a medical examination. In Loder v. City of Glendale, the California Supreme Court placed limits on drug testing of current employees seeking promotion. The court held drug testing of current employees seeking promotion had to be evaluated in light of the nature of the new position sought. As previous U.S. Supreme Court decisions dealing with drug testing of current employees establish, in evaluating the "reasonableness" of a drug-testing program for purposes of the Fourth Amendment, it is necessary to weigh the importance or strength of the governmental interest supporting suspicionless drug testing against the intrusion on reasonable expectations of privacy imposed by such testing.

The Loder court also noted that the U.S. Supreme Court had not previously addressed the issue of drug testing for new job applicants. The court pointed out that two federal courts had addressed the issue and came up with conflicting opinions. The Loder court held that when the drug test is administered in a reasonable fashion as part of a lawful pre-employment medical examination, then drug testing of all job applicants is constitutionally permissible under the Fourth Amendment even though similar drug testing of current employees seeking promotion is not. The California Supreme Court concluded 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, and also that a drug testing requirement imposes a lesser intrusion on reasonable expectations of privacy when the drug test is conducted as part of a lawful pre-employment medical examination that a job applicant is required to undergo in any event.

Three months after the California Supreme Court Loder decision allowing carte blanche drug testing of job applicants, the U.S. Supreme Court ruling in the Chandler case limited the government's right to compel a drug test as a precondition of holding elected office. In Chandler v. Miller, election candidates for designated state offices in Georgia were required to submit to and pass a drug test prior to qualifying for nomination or election. The U.S. Supreme Court held that the Georgia law was unconstitutional under the Fourth Amendment to the U.S. Constitution because Georgia could not demonstrate a special need that justified the suspicionless drug test. The court found that the need for suspicionless drug testing must be far more specific and substantial than a generalized desire to have a policy supporting a drug-free work environment. The California Supreme Court in Loder did not evaluate the Chandler ruling because Chandler was not decided until three months after Loder. The California Supreme Court would have been compelled to consider the Chandler decision in its own analysis had it had the benefit of the U.S. Supreme Court's analysis at the time.

Even though both Loder and Chandler address suspicionless drug testing, the 9th Circuit in Lanier only followed the principles set forth by the U.S. Supreme Court in the Chandler case (dealing with drug testing elected officials) and made no mention of the California Supreme Court's decision in Loder (which was more factually akin to Lanier). The 9th Circuit quickly disposes of Lanier's argument that the drug testing policy is facially invalid because the court foresees situations - such as jobs that require the operation of dangerous equipment - in which the city's pre-employment drug-test policy would be valid. For the policy to be facially invalid, Lanier would have had to demonstrate that there are no circumstances under which a pre-employment drug test is warranted. Lanier could not do this.

With respect to Lanier's position that the drug test policy is invalid as applied to herself and the library page position, the city of Woodburn argued that it had three substantial and important interests in drug-testing library pages: Drug abuse is one of the most serious problems confronting contemporary society, drug use has a negative impact on job performance and children must be protected from those who use drugs and from those who could influence children to use drugs. The city also argued that the library page position was safety-sensitive because it was listed as a safety-sensitive job in the city's internal policies and procedures manual.

 Although the 9th Circuit acknowledged that the city's interests are social problems worthy of concern, it dismissed them finding no indication that the city could establish a special need for pre-employment drug testing to justify an exception to the Fourth Amendment's protection against unreasonable searches and seizure. Relying on Chandler, the 9th Circuit held that the need for suspicionless drug testing must be far more specific and substantial than the generalized existence of a societal drug problem. The city was also unable to make a substantive showing of how drug abuse within the city affected job performance in the past. In addition, there was no evidence that library pages cared for children or were in a position to exert influence over children. The role of a library page is to primarily retrieve books from the book drop and return the books to shelves. This was found to be a tenuous connection to children. The mere presence of children in the library was insufficient to justify suspicionless drug testing of all applicants. In contrast, the court recognizes that school teachers and school administrators can be drug tested prior to employment because of their direct role in children's lives and because of the obvious social interest in protecting children. Finally, the court held that the library page position was not safety-sensitive merely because it had been characterized as such in the city's internal policies and procedures manual.

The 9th Circuit stated that demonstrating a special need becomes the core issue to determine the constitutionality of a suspicionless drug test policy. The court looked to prior cases to define what constitutes a safety-sensitive position. Safety-sensitive positions are those jobs where individuals perform work that involves a danger to the public. The following are examples of jobs previously found to pose a danger to the public: operating railway cars, operating dangerous instrumentalities such as heavy trucks used to transport hazardous material, work regarding national security, work in a nuclear power facility, work in the aviation industry, work involving the enforcement of drug laws and operating natural and liquefied natural gas pipelines. In light of the above, the city of Woodburn was unable to demonstrate that the library page position justified pre-employment drug testing because the position is not safety-sensitive, and the connection to influence over children was too remote since a library page does not care for children.

Lanier has markedly changed the landscape for pre-employment drug testing. Although the Lanier decision does not expressly prohibit pre-employment drug testing by public employers under all circumstances, it does substantially limit such drug testing. California public employers must demonstrate a "special need" for pre-employment drug testing. Gone are the days of subjecting all job applicants to suspicionless drug testing. A special need will likely exist for many positions in a public agency, including safety-sensitive positions and those jobs that involve directly working with or supervising children.

If the Lanier decision is not subjected to rehearing by the 9th Circuit or review by the U.S. Supreme Court, then a California public employer's desire of maintaining a drug-free workplace will no longer be sufficient grounds to conduct pre-employment drug testing.

Morin I. Jacob is of counsel to Liebert Cassidy Whitmore in their San Francisco office. The firm specializes in public sector labor and employment law.