Employee drug testing tough call for judges
In December, the California Supreme Court ruled that public employers may require all job applicants to be tested for drugs and alcohol as a condition of employment. Urinalysis testing of all current governmental employees who seek promotions was not approved by the court.
The opinion did not determine whether private employers have the same right to require drug testing, but the Supreme Court would likely follow the same rule: across-the-board drug testing of job applicants is legal, while testing of existing employees seeking promotion is limited to job categories that affect the health, safety and security of the public.
The court ruling involved the City of Glendale’s drug and alcohol testing program which required all job applicants and all candidates for promotion to submit to a urinalysis testing program. The court overturned a lower court decision that restricted Glendale’s drug testing to job categories that affect the health, safety and security of the public, like police, fire, jail and transportation personnel, but not secretaries, librarians, clerks and attorneys.
Chief Justice Ronald George wrote the majority opinion, which generated four dissenting and concurring opinions. Justice George wrote:
In light of the well-documented problems that are associated with the abuse of drugs and alcohol by employees – increased absenteeism, diminished productivity, greater health costs, increased safety problems and potential liability to third parties, and more frequent turnover – an employer, private or public, clearly has a legitimateinterest in ascertaining whether persons to be employed in any position currently are abusing drugs or alcohol.
New Justice Janice Brown voted to uphold Glendale’s program of testing all job applicants and employees seeking promotions:
These tradeoffs are part of the cost of being a public servant. Thus, federal employees cannot run political campaigns; FBI agents do not go on strike. State employees are required to reveal detailed financial information knowing it will be publicly disseminated. Such choices are neither easy nor comfortable
But that is life. Sometimes beauty is fierce; love is tough; and freedom is painful.”
In passionate style, Justice Joyce Kennard voted against testing all job applicants and candidates for promotion:
This case conjures up visions of an Orwellian nightmare in which the government through intrusive bodily testing, microscopically scrutinizes the most intimate aspects of the bodies and lives of all individuals seeking government positions, justified in such scrutiny on the ground that the intrusions will enhance the efficiency, productivity and cost-effectiveness.
This was a difficult decision for the court, who voted 5-2 in favor of testing for all job applicants and 4-3 against testing for all promotions, regardless of job category. There is no word on whether the case may be appealed to the U.S. Supreme Court or whether the American Civil Liberties Union will challenge the case as an unconstitutional invasion of the right of privacy. Nor is there certainty the court will follow this public employer decision for private employers.
Jim Porter is an attorney with Porter Simon, with offices in Truckee and Reno. He is also a mediator and a Commissioner on the California Fair Political Practices Commission, which regulates political candidates and elected officials.
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