Drug testing is common among private businesses. A clean test is often a prerequisite before a person can start a job. But what about public entities? Can a city or municipal government require drug testing of all its employees? Generally speaking, the answer is “no,” although there are certain circumstances where a drug test may be appropriate.
The U.S. Constitution bounds municipalities
Unlike private companies, cities and municipalities’ ability to drug test employees is limited by the U.S. Constitution, specifically the Fourth Amendment. The Fourth Amendment prohibits the government from performing unreasonable searches. A drug test is considered to be a search, and blanket testing of all employees is not reasonable. However, a drug test may be performed if there is “individualized suspicion.” Also, random drug testing may be allowed if there is a “special need” that outweighs the employee’s right to privacy.
What is individualized suspicion?
As the name suggests, drug testing is generally allowed if the city suspects that an employee is under the influence of drugs. A “feeling” that an employee is under the influence is not enough to meet the standard of individualized suspicion. A city should be able to point to specific observations, such as slurred speech or impaired motor function, to justify the drug test. Evidence that an employee is in possession of drugs or drug paraphernalia may also be enough to justify a drug test.
What special needs allow for random drug testing?
A “special need” for drug testing beyond law enforcement purposes often exists in positions where safety is a priority. The courts have held that people who work in the following safety-sensitive positions may be subject to random drug testing:
- Law enforcement officers who carry firearms or are involved in drug interdiction
- Public transporters in industries where there are documented incidents of drug and alcohol abuse
- Operators of heavy machinery, large vehicles, or those who handle hazardous substances
- Employees working in high-risk areas, such as highway crews
- Wastewater treatment employees who handle hazardous chemicals
Post-accident drug testing of employees in safety-sensitive positions without having individualized suspicion is generally allowed. Cities must show a “compelling interest” in performing random drug tests of their employees.
Despite all of the above regulations, whether a city can legally drug test all its employees has never been decided by the Texas courts. However, courts in other jurisdictions have struck down policies requiring drug tests of all employees in non-safety sensitive positions. Any municipality would be well-served to discuss its drug testing policies with a skilled legal professional.