Fourth Amendment: Are Drug Tests Legal?
Both the Fourth Amendment and state privacy laws protect you from unreasonable searches or intrusions of your body. To determine whether a search is reasonable, a court weighs the employer’s need to ensure that its employees perform their jobs safely against the employee’s reasonable expectation of privacy.
A disclaimer: Although I am an attorney, the legal information in this post is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.
Both the Fourth Amendment and state privacy laws protect you from unreasonable searches or intrusions of your body. To determine whether a search is reasonable, a court weighs the employer’s need to ensure that its employees perform their jobs safely against the employee’s reasonable expectation of privacy.
With regard to the employer’s need for a safe work environment, the most important factor is the industry. A fire or police department has a very strong need to ensure that its employees are able to perform their risky tasks free from impairment caused by drugs. So, a drug testing policy for these types of employees is more likely to be upheld. By contrast, the Washington Supreme Court struck down a drug-testing policy for people who worked in fields where safety was not an issue, such as desk jobs.
The other side of the analysis is the employee’s expectation of privacy, and how intrusive the search is. First, it is important to note that you generally do not have a very strong legal expectation of privacy with respect to drugs you use that are illegal in this country. Most courts have upheld drug-testing policies where the drug testing was part of a screening process that all applicants had to undergo. This is because the applicant should expect an employer to check up on him – with regard to his resume, his references, and his illegal drug use. With respect to current employees, courts have generally held that a drug test is not intrusive if the employee was told that such drug tests might be given. But, when an employer surprises its employees with random drug tests, then a court is more likely to find that the tests violate privacy rights because the employee reasonably expects to remain free from such testing.
About the Author
Adam Freedman is a lawyer and a regular contributor to Point of Law and Ricochet. Freedman’s legal commentary has been featured in The New York Times, the Minneapolis Star-Tribune, and on Public Radio. He holds degrees from Yale, Oxford, and the University of Chicago. He is the author of The Naked Constitution (2012).