DRUG TESTING

Just say 'no' to certain preemployment drug testing

On March 13, the Ninth U.S. Circuit Court of Appeals (which covers Arizona) held that a city's policy of requiring its library pages to submit to a preemployment drug screening was unconstitutional. The court's decision emphasizes that public employers must have a "special interest" in order to require a drug screening for potential employees.

City wages war on employee drug use

In February 2004, Janet Lynn Lanier applied for a position as a library page at the Woodburn, Oregon, public library. The duties of a library page include reshelving books left in the book drop and working the desk in the youth services area. Lanier received an offer of employment that was conditioned on successful completion of a background check and alcohol and drug screening. The city's policies required preemployment drug screening for all preferred applicants. Lanier refused to be tested, and the city rescinded its offer.

Lanier filed suit, alleging that the city's policy requiring preemployment drug screening violated the Fourth Amendment to the U.S. Constitution and a provision of the Oregon Constitution. The trial court found that the policy as applied to Lanier was unconstitutional. It also seemed to suggest that the policy was unconstitutional on its face, meaning it was unconstitutional no matter which employment position it was applied to. The city appealed the trial court's decision.

Faces of meth-odology in the Ninth Circuit

The Ninth Circuit affirmed the trial court's decision that the policy was unconstitutional as applied to Lanier. The court first noted that municipal drug screening constitutes a government search for purposes of the Fourth Amendment. Accordingly, the court considered whether the policy of "suspicionless" searches for every applicant was constitutional.

The city argued that it had a special interest in screening library pages for several reasons: the problems with drug abuse in society, the effect of drug use on job performance, and the protection of children from drugs. It also argued that several department heads had problems with employees working under the influence and that one employee (in 23 years) had to undergo rehabilitation on several occasions. Furthermore, the city claimed that the library page duties included working with children while manning the desk in the youth services area.

The court found that while the city's intentions were noble, its drug-screening policy was more symbolic than necessary and therefore unconstitutional as applied to Lanier. The court believed that the city's experience with employee drug use didn't present any concrete danger that would allow the type of suspicionless testing for which its policy provided. Furthermore, the court found that the city didn't have a special interest in protecting children from a part-time library page. There was no indication that the page would have any responsibility for or be able to influence the children who visited the youth services area. The library page position wasn't like that of a teacher, a position that would have a high level of interaction with and supervision over children.

The Ninth Circuit also considered whether the city's policy was unconstitutional altogether. The court determined that it wasn't ― there were certain positions for which the city would have special interest in screening applicants. For example, it could require an employee that would be operating dangerous equipment to submit to a preemployment drug screening. Accordingly, while the policy was unconstitutional as applied to Lanier, the court refused to find that it would be unconstitutional under all circumstances.

Smoke and mirrors or cause for concern?

This decision emphasizes the Ninth Circuit's belief that a public employer must have a special interest in conducting applicant drug screening. It provides some guidance to public employers on what constitutes a special interest, essentially limiting the qualifying interests to employees who will be working very closely with and supervising children, including teachers and employees whose jobs are considered safety-sensitive. The court provided several examples of safety- sensitive positions, including those that involve the operation of railway cars, work in a nuclear power facility, involvement with national security, and the operation of dangerous instrumentalities.

The Ninth Circuit's classification of "special interests" severely restricts public employers' ability to screen applicants for employment. If public employers are faced with a close question of whether they may screen applicants for certain positions or if they have a preemployment drug-screening policy that applies to all applicants, they should contact counsel before conducting any preemployment drug screening.