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The following article about the right to privacy and workplace drug testing is by Yvette Farnsworth Baker, Esq., Senior Legal Consultant at Current Consulting Group, the number one recognized brand in expert drug testing consulting. This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.
The Right to Privacy and Its Intersection with Workplace Drug Testing: Legal Considerations and Employee Rights
By Yvette Farnsworth Baker, Esq., Senior Legal Consultant at Current Consulting Group
The right to privacy in the workplace is a complex and evolving issue, particularly when it intersects with employee drug testing. It is a right often protected by courts even when privacy is not specifically enumerated in the Constitution or other laws. One of the most controversial right-to-privacy cases is the famous Roe v. Wade, which relied on a right to privacy that “emanates” from the United States Constitution.
How does the right to privacy impact workplace drug testing?
The right to privacy can directly impact workplace drug testing. Many courts have addressed privacy rights and drug testing challenges across the country. Keeping an eye on the legal trends impacting rights to privacy is wise.
Privacy challenges with regards to drug testing are primarily twofold. First involves the manner of collection, particularly with urine tests. Urine tests require an individual to disrobe and urinate in the presence of or near a stranger.
Privacy interests also involve the information that is or can be collected from a drug test. Many health conditions can be revealed from a drug test, as well as medication that the employee is taking. Pregnancy and genetic disorders or predispositions are also revealed from a urine test.
What are employer and employee drug testing rights?
Yet obviously employers have an interest in the safety and productivity of their workplace. There is a balancing of interests, employees’ privacy on one hand and employers’ interest in a drug-free workforce on the other. Small nuances in policy can tip the balance one way or another.
Factors that tip the balance in favor of drug testing in spite of privacy concerns can include: protecting the safety of employees and the public, advance notice to employees of testing (and the decreased expectation of privacy once employees have been notified), testing that only reveals illicit substances and not health conditions or legal medication, testing procedures that permit as much privacy and dignity as possible, confidentiality of test results, and reasonable suspicion of drug use.
How do state drug testing laws play a role in the right to privacy?
Constitutions in at least eight states have specific protections for the right to privacy, including: Alaska, California, Florida, Hawaii, Illinois, Louisiana, Montana, and Washington. Also, more general provisions in other states have been interpreted by courts to have established privacy rights. However, specific constitutional protection for privacy rights does not seem to correspond to increased scrutiny for workplace drug testing programs. Massachusetts, New Jersey, and California high courts have restricted workplace drug testing programs based on privacy concerns, though Massachusetts’ and New Jersey’s state constitutions fail to mention a right to privacy (Massachusetts, however, does mention privacy in other laws). By contrast, Florida law permits almost all forms of workplace drug testing in spite of the constitutional right to privacy.
Conclusion
There is no way to know if or when a state court may see fit to expand privacy protections to encompass workplace drug testing. However, employers can do their part to protect the privacy of their employees while still enforcing drug-free workplace policies. Confidentiality of results, privacy and dignity (to the extent possible) in the testing process, tests designed to identify only the illicit and not medical information, and special scrutiny of positions that affect safety can all go a long way towards tipping the scales in favor of drug-free workplaces.
To learn more about how ClearStar is helping workplaces stay drug-free, contact the ClearStar team today.
Author Bio: Yvette Farnsworth Baker, Esq.
Yvette Farnsworth Baker is a Senior Legal Consultant and director for all law-related services, including Current Consulting Group’s extensive compliance services.
Yvette is a licensed attorney and member of the Florida Bar. As an expert in drug and alcohol testing case law, Yvette regularly consults on issues involving state law and federal regulations in addition to authoring articles for industry publications.
She helps produce content for Current Compliance, the most comprehensive and up to date online database of state drug testing laws, including marijuana and workers’ compensation laws.
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