Friday, November 11, 2011

Public Employers Face Extra Drug Testing Limits

Over several recent posts, Arizoneout has been examining the state Drug Testing of Employees Act, as the Arizona Medical Marijuana Act (AMMA) has made adopting a compliant policy a high priority for many employers.  That’s the case thanks to amendments the state legislature made to the Drug Testing of Employees Act earlier this year to ease implementation of the AMMA in Arizona workplaces.

The Drug Testing of Employees Act applies both to public and private employers.  One of the ways the legislature amended the Act was to add into the definition of “employer” subject to its provisions the state of Arizona and all of its political subdivisions.

Before the amendment, the definition explicitly excluded the state and all of its agencies, except for the departments of public safety, corrections, and juvenile corrections, and all political subdivisions of the state.  Thus, public employers are especially new to the Drug Testing of Employees Act’s many technical requirements.  

A September 29, 2011 post discussed the circumstances under which the Drug Testing of Employees Act permits an employer to require employees to submit a sample for drug testing.  The Act specifically authorizes random testing.  In that post, Arizoneout noted that public employers must be aware of additional limits on random testing, and promised to devote another post to that topic.

This is that post.  Before we move on to the other AMMA-specific amendments to the Drug Testing Act that the legislature adopted earlier this year, let’s close this loose end.

Thanks to a 2004 Arizona Supreme Court case coming out the City of Mesa, public employers know that it is a violation Fourth Amendment to the U.S. Constitution to require public employees to undergo random testing.  The case is Petersen v. City of Mesa.   Random testing also may be a violation of Article II, Section 8 of the Arizona Constitution, which provides that “no person shall be disturbed in his private affairs . . . without authority of law.”   The Arizona Supreme Court did not decide that question.

The City of Mesa implemented a drug testing program for its Fire Department in 2001.  The City tested firefighters in four circumstances: (1) upon reasonable suspicion the individual firefighter has abused drugs or alcohol; (2) after an on-the-job accident involving the firefighter; (3) upon the firefighter’s return to duty from an injury or a substance abuse diversion; and (4) “on an unannounced and random basis spread reasonably throughout the calendar year.”

Craig Peterson, a city of Mesa firefighter, filed a pre-emptive lawsuit, challenging only the random testing requirement.  

The Arizona Supreme Court rejected the argument that firefighter was a sufficiently safety-sensitive position to permit suspicionless, unannounced drug testing, when the City of Mesa had offered no evidence of any drug problem among its firefighters.

The City of Mesa argued that the safety-sensitive nature of the position gave it a special need to invade firefighters’ privacy by conducting random testing, based on two  U.S. Supreme Court cases.  One of them, National Treasury Employees Union v. Von Rabb, authorized suspicionless testing of U.S. Customs employees, not on a random basis but upon promotion or transfer to a position directly involved in drug interdiction or requiring the carrying of a firearm.  The other, Skinner v. Railway Labor Executives Ass’n, authorized suspicionless drug testing of railway employees because of their diminished expectation of privacy from working in an “industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness” of railway employees.

According to the Arizona Supreme Court, the Mesa firefighters had a similar diminished expectation of privacy because their job involves safety risks, they are entrusted with protecting the community and their colleagues from danger, and their ability to do their jobs depended on their own health and fitness.  Nevertheless, the court found that the City of Mesa’s generalized interest in deterring and detecting alcohol and drug use among its firefighters was not a sufficiently strong interest to overcome even the lessened privacy interests of the firefighters.

If the safety-sensitive nature of firefighting is not enough to justify random drug testing, then it is hard to imagine a public employee job outside of law enforcement and corrections that would qualify for random drug testing.  As future posts will address, the Arizona Legislature has a vastly different view of what counts as a safety-sensitive position than the state’s highest court.