December 20, 2006
DRUG TESTING FOR PUBLIC SCHOOL TEACHERS
By: Judith Lohman, Chief Analyst
You asked if Massachusetts, New York, Pennsylvania, or Rhode Island require or allow drug testing for public school teachers or specifically allow local school boards to adopt a policy of drug testing for public school teachers. You also asked if the issue of drug testing for teachers has arisen in collective bargaining negotiations in any part of the country.
Of the four states, only Rhode Island has a state law on employee drug testing. Rhode Island's law expressly bars pre-employment drug testing for prospective teachers, as well as most other applicants for state and municipal employment. It allows an employer to require an existing employee to take a drug test only when the employer has a reasonable suspicion that the employee is using drugs and it is affecting his performance. And it prohibits an employer from terminating an employee solely on the basis of a positive drug test.
Massachusetts, New York, and Pennsylvania have no state law either allowing or barring employers, including boards of education, from testing teachers or other employees or prospective employees. Thus, in those states drug testing for teachers and other employees is governed by federal and state constitutional requirements, federal laws, and state court cases. These requirements are discussed in two attached OLR reports, one dealing with drug testing for municipal employees in Connecticut (2002-R-0673) and the other dealing with the law and practice of employee and student drug testing in Connecticut (95-R-1335).
Computer searches of the archives of Education Week and Teacher Magazine and calls to the American Federation of Teachers and the Education Commission of the States yielded no instance of drug testing for teachers coming up in collective bargaining negotiations recently. But some states have or could address the issue through legislation. A new Kentucky law requires drug testing for teachers who have been disciplined for using drugs. The Hawaii legislature expects to take up a bill in its 2007 session to allow or require random drug testing for current teachers.
RHODE ISLAND DRUG TESTING LAW
Rhode Island has two laws governing employment drug testing. One applies to existing employees and makes no distinction between public and private-sector employee applicants. The other applies to pre-employment testing of job applicants and expressly bars such testing for most public employees, including prospective teachers.
Rhode Island law restricts an employer's authority to require an existing employee to take a drug test. It requires an employer to have reasonable grounds to believe that an employee's use of drugs is affecting his job performance. It requires the employer's suspicion to be based on specific aspects of the employee's job performance and specific contemporaneous observations of the employee's behavior, appearance, or speech. The employer must be able to articulate what makes him suspect the drug use.
The law imposes standards for testing. The employee must provide the test sample in private and not in anyone's presence. Positive tests must be confirmed by a federally certified lab using gas chromatography/mass spectrometry or another technique that is at least as scientifically accurate. An employer must also (1) allow the employee to have the results independently confirmed by another testing facility at the employer's expense; (2) advise the employee of that option; (3) give the employee a reasonable opportunity to rebut and explain the results; (4) have promulgated a drug abuse prevention policy that complies with state law; and (5) keep test results confidential, unless another employee has a job-related need to know.
Finally, the law prohibits an employer from terminating an employee solely on the basis of a positive test. Instead, the employee must be referred for treatment. If the employer requires additional testing in conjunction with the referral, the employee may be terminated on the basis of a positive test indicating continuing drug use despite treatment.
Employers who violate these restrictions are guilty of a misdemeanor punishable by a fine of up to $1,000, one year in jail, or both. Employers are also subject to lawsuits, which can result in actual and punitive damages and award of attorneys' fees and costs to the employee.
The restrictions do not apply to employees covered by federal drug testing requirements (R.I. Gen. Laws § 28-6.5.1).
Rhode Island law allows an employer to require a job applicant to pass a drug test if (1) he has offered the applicant a job on the condition that he pass the test, (2) the applicant provides the sample in private, and (3) positive results are confirmed a federally certified lab using gas chromatography/mass spectrometry or another technique that is at least as scientifically accurate.
The law prohibits drug testing for applicants for jobs with any state or municipal agency, except for law enforcement, correction officer, or firefighter positions, or any position where testing is required by federal law (R.I. Gen. Laws, § 28-6.5-2).
A new law requires a teacher who has been disciplined for illegal drug use to submit to random or periodic drug testing for up to 12 months after the disciplinary action, as a condition of retaining employment. Any teacher whose certificate has been suspended or revoked by the state for illegal drug use must, as a condition of getting the certificate back, submit to drug testing in accordance with state regulations. No teacher may be subject to drug testing unless and until it has been determined in an administrative or judicial proceeding that the teacher engaged in misconduct involving the illegal use of controlled substances (House Bill 341 § 4, signed April 2006).
In response to the arrest of a teacher for selling “crystal meth” to a undercover officer on five occasions and being accused of setting up drug deals while at school, the Hawaii legislature will likely consider whether to require drug testing for Hawaii teachers in its 2007 session, according to an October 14, 2006 Honolulu Advertiser news article. Hawaii is the only state where the schools are run by the state and teachers are state employees. According to the article, there is currently no random or pre-employment drug testing required for Hawaii teachers.