Drug and Alcohol Testing of Public Employees

Transcription

1 Drug and Alcohol Testing of Public Employees Presented by: R. Russell Lucas, Jr. Julie A. Aquino CAMPBELL DURRANT BEATTY PALOMBO & MILLER, P.C. 535 Smithfield Street, Suite 700 Pittsburgh, PA (412) Drug and Alcohol Testing This presentation will discuss: Constitutional considerations of drug and alcohol testing Why you should have a drug and alcohol testing policy Who can be drug tested and when: Collective Bargaining considerations 2

2 Constitutional Considerations What does drug testing have to do with the Constitution? Fourth Amendment protects people, including government employees, from unreasonable searches and seizures. U.S. Supreme Court the forced collection of bodily fluids or breath samples is a search within the meaning of the Fourth Amendment. 3 Your Policy All public employers should have a comprehensive, written drug and alcohol policy. A well-crafted policy provides guidance to supervisors and sets forth the specific and legally recognized bases for testing. 4

3 Your Policy Without a policy, supervisors are left to guess when testing is appropriate and under what circumstances. Supervisors must know when they can test andhowtotest Arbitrary enforcement will jeopardize resulting disciplinary action and call into question the constitutionality of the testing. 5 Your Policy The reasonableness of the drug and alcohol testing depends on the type of test performed and the job classification for the individual being tested. There are 4 occasions upon which testing is performed: (1) pre-employment; (2) reasonable suspicion; (3) post-accident; and (4) random. 6

4 Your Policy-Random Testing Random testing is the most legally scrutinized type of testing, and pre-employment testing is the next most legally scrutinized. Random testing of a public employee is constitutional only when the employee works in a safety-sensitive position(per the courts). A government s general interest in maintaining the integrity of its workforce is not a sufficiently compelling interest to justify random testing of the entire workforce, according to the courts, absent additional evidence of widespread drug problems. 7 Your Policy-Random Testing = Safety-sensitive Positions Therefore, determining which employees may legitimately be deemed safety-sensitive is the most critical part of developing a comprehensive drug and alcohol testing policy. 8

5 Your Policy- Safety-sensitive The difficulty in doing so, however, is that there is no definition in statutes or cases stating which positions are safety sensitive. Does a 911 dispatcher work in a safety-sensitive position? Compare Valley Sewerage Comm rs, 406 F. App'x 664 (3d Cir. 2011) (landscaper at waste water plant) with Bolden v. SEPTA, 953 F.2d 807 (3d Cir. 1991)(transit authority custodian). Employer s designation of safety-sensitive is significant, but not dispositive. If a position does not involve a function that is safetysensitive, a designation to the contrary is likely to be overlooked. However, if a designation of safety-sensitive positions is agreed upon through the collective bargaining process, it will be upheld. Does the person work with equipment or machinery which could cause harm to persons or property if operated under the influence? 9 Your Policy- Police Officers Law enforcement officers = safetysensitive position There is no federal or state requirement to randomly test law enforcement officers. Unionized employees = many aspects of a drug and alcohol testing policy are bargainable. 10

6 Your Policy CDL Drivers For CDL drivers, the federal government has enacted extensive regulations that require preemployment, random, post-accident and reasonable suspicion testing. These regulations meet the reasonableness standard under the Fourth Amendment because CDL drivers perform safety-sensitive functions, and the regulations were written with the Fourth Amendment standard in mind. 11 Your Policy 4 Categories of Testing Overview of the standards pertaining to: 1. Pre-employmenttesting 2. Reasonable Suspicion testing 3. Post-accidenttesting 4. Randomtesting 12

7 Pre-employment Pa. federal courts have generally allowed pre-employment drug testing Kerns v. Chalfont-New Britain Twp. Joint Sewage Auth. Third Circuit found that the person had validly consented(in writing) to taking a drug test because it was a condition of the offer of employment which he accepted. 13 Pre-employment Courts in other jurisdictions have come to different conclusions. Lanier v. City of Woodburn Ninth Circuit held that a city s blanket policy of preemployment testing of all applicants was unconstitutional as applied to a person who was applying for a librarian s assistant job. Court ruled that the city needed to demonstrate a special need to drug screen for a particular position. 14

8 Pre-employment The 3rd Circuit upheld the testing in Kerns because there was clear, written consent. But those courts that have disallowed blanket pre-employment testing held that the consent is invalidunlessthereisa specialneed toaskthe persontoconsenttothetest. Special need should be evaluated in advance. Is there a valid, articulable reason why a person holding this person should be tested without incident or suspicion? 15 Pre-employment So can we have a policy that requires all prospective municipal employees to submit to preemployment drug testing? Maybe, but it is risky to do so. The 3rd Circuit s ruling in Kerns is the minority view among federal courts. More conservative approach is to require preemployment drug testing only where there is a special need related to the duties performed, such as health and safety concerns (the same standard as for random testing). 16

9 Pre-employment US DOT regulations mandate pre-employment drug testing (or proof of a recent clean drug test) for a CDL driver. 49 CFR Pre-employment alcohol testing is not required but if an employer chooses to do this, it must test all similarly-situated CDL employees, and cannot allow an employee to perform driving duties until after the employee has taken the alcohol test. 17 Pre-employment Employers must also request substance abuse testing results of anyone hired to drive a commercial motor vehicle from all previous DOTregulated employers who have employed the employee during any period during the two years before the date of the employee's application or transfer. 49 C.F.R ; 49 C.F.R

10 Reasonable Suspicion Testing Reasonable suspicion testing requires that there be some objective evidence that an employee is under the influence of drugs or alcohol based on observation of that employee. The Fourth Amendment applies. Where a drug testing policy: (1) defines what constitutes reasonable suspicion and (2) is a result of collective bargaining, then the determination of reasonable suspicion is a matter for the grievance arbitration process, and not the courts. See Dykes v. SEPTA,(3d Cir. 1995). The observing individual typically the employee s direct supervisor should document in writing the specific observed characteristics which led to the reasonable suspicion testing. 19 Reasonable Suspicion Testing for CDL Employees US DOT regulations: reasonable suspicion testing of CDL employees: Must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver These observations must be made by a supervisor or company official who is trained in detecting alcohol and drug use. 20

11 Post-Accident Testing Non CDL Employees Courts have held that post-accident testing of employees for drugs and/or alcohol must be justified by a governmental interest such as where the accident involves: A fatality; Hospitalization of a person as a result of the accident; or Substantial damage to property The Fourth Amendment applies 21 Post Accident Testing: CDL employees US DOT regulations mandate post-accident testing of CDL drivers where: afatalityisinvolved;or the driver receives a traffic citation within 8 hrs of the accident(alcohol) or within 32 hrs(drugs), and if: The accident resulted in bodily injury requiring medical treatment away from the accident scene, or The accident resulted in vehicle damage that required a vehicle to be towed from the accident scene. 49 CFR

12 Post Accident Testing: CDL employees US DOT regulations = post-accident alcohol testing must be administered within 2 hours following accident If a test is not administered within 8 hours of the accident, the employer shall cease attempts to administer an alcohol test Documentation requirements exist if the 2 hourand8hourtimeframesarenotmet 23 Post Accident Testing: CDL Employees US DOT regulations = post-accident drug testing cannot be conducted after 32 hours following the accident Documentation requirements exist if the timeframe is not met 24

13 Random Testing Non CDL Randomdrug testing = safety-sensitive positions (because of the Fourth Amendment) 25 Random Testing for CDL Employees Random drug and alcohol testing = mandatory for CDL employees. 49 C.F.R specifies the frequency of random drug testing and sets forth rules pertaining to the selection process Federal regulations written with Fourth Amendment reasonableness standard in mind. Consider forming or joining a consortium for small employers(having a combined random testing pool). 26

14 Types of Tests Under US DOT Regulations: Drugs = Urine Blood and hair samples are generally not permitted for drug tests. 27 Types of Tests Under US DOT Regulations: Drugs= Marijuana Cocaine Opiates Amphetamines Phencyclidine (PCP) 28

15 Types of Tests What about other types of drugs such as synthetic marijuana, bath salts and prescription pain killers? 29 Types of Tests Under US DOT Regulations: Alcohol: Screening Test = breath or saliva Confirmation Test = breath Blood and urine tests are not permitted for alcohol tests. 49 C.F.R

16 Other DOT Tests The federal regulations also cover return-toduty testing and follow-up testing, in the event of a positive test (and the employee is not discharged from employment). Such testing is administered through a person designated under the regulations as a Substance Abuse Professional (SAP). 31 The Duty to Bargain While the PLRB acknowledges the managerial prerogative of a public employer to test its employees for drugs and alcohol, the aspects of a testing policy that are subject to bargaining are extensive and include: Type of test Chain of custody Who conducts the test Disciplinary consequences of testing positive Employee assistance program role Return to work from a positive test Cambria County Transit Auth., 21 PPER (PLRB1989). 32

17 The Duty to Bargain PLRB cases subsequent to Cambria County have held that in order to unilaterally implement a policy of random drug testing, the public employer must have evidence of a drug problem of sufficient significance. 33 Duty to Bargain: Exception for CDL Employees The PLRB has held that a drug/alcohol testing policy for CDL employees that tracks US DOT regulations is not a mandatory subject of bargaining because the federal regulations preempt state law. However, aspects of the testing policy that are not governed specifically by US DOT regulations are subject to the same impact bargaining obligation established in Cambria County. 34

18 Return to work? Youarenotrequiredtoreturnanemployeeto safety-sensitive duties because the employee has met Return To Duty conditions. Thatisapersonneldecisionthatyouhavethe discretion to make, subject to collective bargaining agreements or other legal requirements. 49 CFR , 49 CFR Employee Under the Influence What do you do when you think someone is undertheinfluenceorhasbeeninanaccident possibly caused by driving under the influence? Witnesses? Documentation of observations Keepemployeeoffduty(withourwithoutpay)? 36

19 Confidentiality of Records Under the federal regulations, employers are generally prohibited from releasing individual test results or medical information about an employee to third parties without the employee's specific written consent. 49 CFR Certain exceptions exist for legal proceedings and preemployment checks by other employers. 49 CFR , The regulations also require retention of records, i.e., positive test results for five years, although your service agent can maintain theserecordsforyouiftheycanbeproduceduponbyrequestofus DOTwithintwobusinessdays.49CFR QUESTIONS? 38