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Types of legal challenges. A public or private employer who decides to adopt a drug
testing program must tailor the program to withstand three kinds of legal challenge:

• Wrongful discharge actions by employees who claim that the testing violates public
policy or a covenant of good faith;

• Invasion of privacy suits in states that have a law or constitutional clause

guaranteeing privacy;

• Actions under other state laws limiting the use of drug tests.

In the public sector, drug testing presents the additional constitutional question of
whether testing violates public employees’ Fourth Amendment rights to be free from
unreasonable searches and seizures. Courts overwhelmingly agree that a blood or urine
sample is a “search and seizure.” To determine whether a search is reasonable, courts
have balanced the employer’s need to conduct tests with the employees’ privacy interests
under the circumstances. Impacting on the decision are factors such as the nature of the
testing program--whether tests are given randomly, based on suspicion only, with advance
notice or only after accidents--and the nature of the job--whether it involves safety risks.
CHECKLIST: Designing drug testing programs for current employees to
withstand legal challenge
_____ Ensure that any drug testing program is narrowly drawn to apply only to jobs that
• high risks of injury to the employee, coworkers or the public;
• special security clearances or the use of firearms; or
• prevention of drug abuse or counseling of drug abusers.
_____ Make any testing based on reasonable suspicion of drug use, especially
individualized suspicion, as it is more acceptable than random testing of all
employees in a job category.
_____ Spell out in advance criteria or events that will give rise to “reasonable
_____ Provide advance notice that employees will be subject to testing.
_____ Offer an Employee Assistance Program in conjunction with testing.
_____ In collecting samples and reporting results, use procedures that ensure privacy,
accuracy and confidentiality as much as possible.