Public employers now face pre-employment drug testing limitations based on the specific scope or nature of jobs, according to a March 13th ruling by the federal Ninth Circuit Court of Appeals. In order to require drug testing as a condition of employment, it is likely that a public employer must now demonstrate there is a specific reason for doing so that is actually tied to the job requirements or duties. According to the court, such circumstances might include the existence of an established substance abuse problem, or that the positions fall within the scope of serious safety sensitivity or work involving children. If the position doesn’t fall within this nature or scope, the Ninth Circuit has indicated that such required pre-employment drug testing violates the Fourth Amendment prohibition against government searches without suspicion.
The Ninth Circuit’s decision involved an applicant for a city library position who refused to take a required pre-employment drug test. In reaching their decision that the city’s mandatory testing for that position was unconstitutional, the Ninth Circuit restricted its ruling to the city library position, as the court’s comments indicated that pre-employment drug testing for safety sensitive positions could still be required.
The court’s ruling puts public employers in the position of providing a specific basis or need for the required drug testing. This may include a “demonstrated problem of substance abuse,” or the position being safety-sensitive, or involving responsibility for or the opportunity to influence children. The Ninth Circuit decision identified a number of such jobs, such as working national security, the operation of railway cars, in a nuclear power facility, or work involving the operation of dangerous equipment. School teachers were referenced as an example of having responsibility for children.
Based on the court’s ruling and comments, public employers should first review each job opening to determine whether a specific need exists for requiring a pre-employment drug screen, then utilize their conclusion as the actual justification for that requirement. Absent a specific and substantial reason for the pre-employment testing, a public employer conducting such pre-employment tests is at risk of such required testing being found unconstitutional. Because the court’s ruling is based on the Fourth Amendment prohibition against government searches without suspicion, private employers are not affected by the decision, absent some other state or federal law restriction. However, private employers should watch this new ruling with attention since it is possible a future challenge to pre-employment drug testing may occur in the private sector.
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