Topic:
ALCOHOL/DRUG ABUSE; STUDENTS; EMPLOYEES (GENERAL);
Location:
DRUGS- TESTING;
Scope:
Court Cases; Federal laws/regulations; Connecticut laws/regulations;

OLR Research Report


The Connecticut General Assembly

OFFICE OF LEGISLATIVE RESEARCH




December 1, 1995 95-R-1335

TO:

FROM: Judith S. Lohman, Principal Analyst

RE: Employee and Student Drug Testing—Law and Practice

You asked what the law is with respect to drug testing in the workplace and in public schools and how the laws are applied.

SUMMARY

Connecticut law generally prohibits private-sector employers from requiring employees to undergo random drug tests unless the state labor commissioner has designated their occupations as high-risk or safety-sensitive. If a job does not fall into this category, an employer must have a reasonable suspicion that the employee is under the influence of alcohol or drugs and that it is affecting, or could affect, his job performance adversely before he may require a test. The test itself must be conducted according to specified requirements. Employers may also test prospective employees as long as the tests meet the requirements and applicants are notified ahead of time.

State and municipal employees are not covered by the state law but are protected by the Fourth Amendment to the U.S. Constitution that prohibits the government from carrying out unreasonable searches. The U.S. Supreme Court has ruled that urine tests are searches and that the Fourth Amendment applies to governments acting as employers. The Court has also ruled that probable cause or individualized suspicion is not always a prerequisite for testing to be reasonable. Instead, it requires a weighing of the urgency of the government's need to carry out the drug testing against the individual's privacy rights.

Federal law and regulations require interstate operators of commercial vehicles over a certain size, including state and municipal employees, to undergo drug tests before they are hired, after serious accidents, and when there is a reasonable suspicion that they are under the influence of drugs. The General Assembly has extended these federal requirements to intrastate operators of commercial vehicles and also allows employers to test operators of smaller vehicles, mechanics who service commercial vehicles, and forklift operators.

The state government requires preemployment drug testing only for correction officers, state police, and certain other high-risk executive branch jobs. Once an employee is working, tests are allowed only on the basis of reasonable suspicion, if at all. Municipalities commonly test only prospective police officers and firefighters. Testing for current police officers and firefighters is not usually required and, when it is, it is only allowed based on reasonable suspicion. State and municipal employees who have to hold commercial drivers' licenses to do their jobs are covered by the federal and state transportation drug testing requirements.

In the private sector, preemployment drug testing is fairly common. There are no good figures on how widespread current employee testing is among Connecticut employers but national surveys show that the larger a company is, the more likely it is to have a testing program.

There is no federal or state statute that covers drug testing of students in public schools. Students do not have the same level of constitutional rights as free adults and a recent U.S. Supreme Court decision permits schools to conduct random drug testing of students who participate in school athletics. But the State Department of Education believes that drug testing cannot be a condition for attending school or for participating in school-related activities mandated by law. Sources report there is currently no drug testing of students in Connecticut public schools.

WORKPLACE DRUG TESTING

Connecticut Drug Testing Law

State law limits the power of private-sector employers to order drug testing of current, former, and prospective employees (CGS 31-51t to 31-51aa).

Current Employees. An employer may not require an employee to undergo a drug test unless the employer has a reasonable suspicion that the employee is under the influence of drugs or alcohol and that it has or could adversely affect the employee's job performance. (Although the law requires the labor commissioner to define “reasonable suspicion” by regulation, the commissioner has not done so.) Employers may require random drug tests in the following cases: (1) when such tests are allowed by federal law, (2) if the labor commissioner has designated the employee's job as high-risk or safety-sensitive, or (3) the test is part of an employee's voluntary participation in an employer-sponsored or authorized employee assistance program.

In addition, an employer is prohibited from making any adverse personnel decision based on a positive drug test unless he uses a reliable testing procedure and the positive result is confirmed by a second test. The second, confirming test must be done using either a gas chromatography and mass spectrometry (GC/MS) method or another method the state health commissioner determines is equally or more reliable. Drug test results must be kept confidential and are part of the employee's medical records. They cannot be used in any criminal proceeding, and no employer or agent may watch while the employee produces a urine specimen for a drug test.

Prospective Employees. Employers may require prospective employees to submit to drug tests as part of the application procedure only if: (1) the prospective employee is informed in writing at the time he applies that the employer intends to conduct a drug test, (2) the test is conducted by the reliable method and subject to the confirming test already described, and (3) the applicant is given a copy of the test results. All prospective employee test results must be kept confidential.

Former Employees. Former employees who reapply for jobs with their previous employer may be subjected to a drug test in the same manner as other prospective employees if they terminated from their previous employment with the employer more than 12 months before their new application. Former employees reapplying for employment within 12 months must be treated as employees and may not be tested unless the employer has a reasonable suspicion that they are under the influence of drugs or unless they are seeking a high-risk or safety-sensitive job.

Gaming Employees. The Division of Special Revenue may conduct a drug testing program for jai alai players, jai alai court judges, jockeys, harness drivers, and stewards participating in racing or jai alai games on which pari-mutuel betting is allowed by state law.

Collective Bargaining Agreements. The law prohibits collective bargaining agreements from superseding its provisions so as to infringe on an employee's privacy rights.

Medical Screenings. Employers may conduct medical screenings to monitor exposure to toxic or unhealthy substances on the job, with the employee's express written consent. The consent must identify the specific substances for which the employee is to be screened and tests are limited to those substances.

Enforcement. An employee can sue his employer or a laboratory or medical facility for general and special damages, plus costs and attorney's fees, or for an injunction preventing violations. An aggrieved employee, the attorney general, or a class representative in a class action can sue for such an injunction.

High-Risk and Safety-Sensitive Jobs. As of September 1995, the labor commissioner had designated 112 jobs as high-risk or safety-sensitive under the state drug testing law, allowing their employers to carry out random drug testing. Most of the jobs involve working with explosives or dangerous materials, transportation (especially driving), cable television installation, heavy highway construction work, emergency medical duties, security, or fire fighting. The list is only a guide and the Labor Department requires employers who want a safety-sensitive designation for their employees to justify the rationale for each job designation separately.

Reasonable Suspicion. Though a 1991 law required him to do so, the labor commissioner has not defined “reasonable suspicion” for purposes of the state drug testing law. In 1994, a federal district court ruled that mandatory drug testing for any employee involved in a serious work-related accident (defined by the employer in the case as one causing property damage of more than $200) violates the state drug testing law. Such an accident could not, by itself, provide a reasonable suspicion of drug use (Doyon v. Home Depot USA, Inc., 850 F. Supp. 125 (D. Conn. 1994)).

Transportation Workers and Commercial Vehicle Operators

State law requires mandatory drug testing for (1) drivers of school buses designed to transport at least 10 passengers, including those owned by a state or municipality; (2) drivers of any vehicle that (a) has a gross weight rating of 26,001 pounds or more, (b) is designed to carry more than 15 passengers; or (3) transports hazardous materials in quantities that require placards under federal law. It also permits employers, including the state and municipalities, to test drivers of any motor vehicle with a gross weight rating between 10,001 and 26,000 pounds, mechanics who repair and service covered vehicles, and forklift operators (CGS 14-261b as amended by PA 95-140).

The state requirements apply to operators of commercial vehicles engaged in intrastate commerce. They mirror federal requirements that apply to drivers of vehicles engaged in interstate commerce. The state law requires that federal testing procedures and requirements be followed. Federal law and regulations cover the following employers: federal, state, and local governments; for-hire motor carriers; private motor carriers; civic organizations; churches; Indian tribes; and farmers and custom harvesters. Federal regulations require the following:

1. preemployment, post-job-offer testing;

2. for employees who transfer to a safety-sensitive (driver) position, testing before the person actually performs those functions for the first time;

3. post-accident testing for drivers whose performance could have contributed to the accident and for all drivers who have been involved in fatal accidents;

4. when a supervisor has a reasonable suspicion that the employee's behavior indicates drug or alcohol use;

5. random tests just before, during, and just after performing safety-sensitive duties; and

6. testing for employees returning to duty after violating prohibited drug or alcohol standards.

Employees are tested for marijuana, cocaine, amphetamines, opiates, and phencyclidine (49 CFR Parts 40 and 382).

State and Municipal Employees

State and municipal employees, other than drivers, are not covered by the state drug testing laws. Public employers are limited instead by the Fourth Amendment to the U.S. Constitution that prohibits the government from carrying out unreasonable searches. The U.S. Supreme Court has ruled that urine test are searches (Skinner v. Railway Labor Executives Assn., 489 U.S. 602 (1989)) and that the Fourth Amendment applies to governments acting as employers (O'Connor v. Ortega, 480 U.S. 709 (1987) and National Treasury Employees v. von Raab, 489 U.S. 682 (1989)).

Thus, any drug testing program for state and municipal employees is subject to Fourth Amendment tests for reasonableness. The Supreme Court has found that neither probable cause nor individualized suspicion is always necessary for such testing to be reasonable under the Constitution. Instead, the Court requires a weighing of the government's need to carry out the drug testing against the individual's privacy rights. Using this balancing test, the Court has upheld mandatory drug testing for employees of the U.S. Customs Service seeking promotion to sensitive jobs, such as those that require carrying a handgun or that involve drug interdiction (von Raab), and for railroad workers involved in major accidents (Railway Labor Executives). It also refused to disturb a lower court ruling allowing random drug testing of U.S. Justice Department employees with top secret national security clearances but not allowing testing of all criminal prosecutors and employees with access to grand jury proceedings (Harmon v. Thornburgh, 690 F. Supp. 65 (1989), cert. denied 488 U.S. 934).

Collective Bargaining Requirements

The National Labor Relations Board has ruled that employers in unionized workplaces have an obligation to bargain with union representatives before establishing drug testing programs for current employees. The board ruled that drug testing is a mandatory subject for collective bargaining under the National Labor Relations Act because it affects the terms and conditions of employment. The ruling concerned a company that unilaterally implemented a requirement that employees involved in workplace accidents submit to drug tests. The board found the policy to be an unfair labor practice. Drug testing is not one of those matters that “lie at the core of entrepreneurial control” and are therefore reserved to the employer's discretion (Johnson-Bateman Co., 295 NLRB No. 28, June 15, 1989).

The board has also ruled that employers may implement drug tests for job applicants without bargaining because applicants are not within the statutory definition of “employees” represented by a union for collective bargaining purposes. “There is no economic relationship between the employer and an applicant, and the possibility that such a relationship might arise is speculative,” the NLRB decided (Minneapolis Star-Tribune, 295 NLRB No. 63, June 15, 1989).

The State Board of Labor Relations considers drug testing a mandatory subject for collective bargaining for public employees (New Haven Police, Dec. Nos. 2554 and 2554A, April 9, 1987 and May 28, 1987).

Federal and state laws and regulations requiring testing for transportation workers remove the employer decision to implement a drug testing policy and many of the issues surrounding the operation of such testing programs from the scope of mandatory bargaining. But even in the transportation sector, in unionized situations, all aspects of the program not fully covered in the law or regulation are subject to bargaining, including such things as the choice of the certified laboratory that will perform the drug testing, rehabilitation programs for employees who test positive, and disciplinary policies arising out of the testing program.

Other Federal Requirements

In addition to commercial vehicle operator testing requirements, various federal regulations also provide for periodic and random drugs tests of workers whose jobs have safety and security implications in the aviation, railroad, maritime, mass transit, and pipeline industries. In addition, military and intelligence employees, and certain employees of the U.S. Customs Service and Justice Department are subject to testing as are defense contractors' employees that have “sensitive positions,” including those with access to classified information.

Testing Practice

Private-Sector Employees. Preemployment drug testing is the most common type of private-sector drug testing, according to Orlene Wayland of Drugs Don't Work. In doing preemployment drug testing, employers must be careful not to contravene the Americans With Disabilities Act, which recognizes drug addiction as a disability (although it does not protect active drug users) and which generally bars medical examinations for job applicants until after they are offered a job.

Drug testing programs for current employees are less prevalent, Wayland says, and are most likely to be found in larger companies. There are no surveys specifically for Connecticut but national surveys show that 28% of companies with more than 5,000; 13% of those with between 1, 500 and 5,000; and 10% of those with 500 to 1,500 employees have drug testing programs. Of course, many private-sector companies are covered by federal and state drug testing requirements for commercial drivers and other transportation workers.

State Employees. According to Peter Rozantes of the Personnel Division of the Department of Administrative Services, except for state employees whose jobs require commercial drivers' licenses or who are otherwise subject to federal requirements, state executive branch employees are subject to drug tests only when there is reasonable suspicion that they are using drugs and that it is affecting their work. Prospective executive branch employees are subject to drug tests as part of a preemployment physical if agencies have identified their jobs as having a high risk of injury. Among the 62 job classifications for which such tests are required are: correction officers, police, firefighters, special deputy sheriffs, and certain social workers and medical workers. The Judicial Department does no drug testing of its prospective or current employees, even when there is a reasonable suspicion of drug use by a current employee. Instead, it requires counseling and treatment for the employee, according to Faith Arkin, legislative liaison for the department.

Municipal Employees. Terry Elton of the Connecticut Conference of Municipalities reports that drug testing for municipal employees and prospective municipal employees, other than police and firefighters and those subject to requirements for vehicle operators, is very unusual.

About 30% of municipal police departments in Connecticut have drug testing programs for active police officers, according to Gary Waterhouse of Council 15 of AFSCME, which represents a majority of police departments in the state. He says the union tries to put drug testing requirements into all municipal police contracts but towns resist. Beginning January 1, 1995, the Municipal Police Training Council has made a negative drug test a condition of appointment to a position of probationary candidate in a law enforcement unit in the state (Regs. of Ct. State Agencies, 7-294e-16(k)). Peter Carosa of the International Association of Firefighters believes that most towns require a preemployment drug test from entry-level firefighters as part of a preemployment physical. For current firefighters, he thinks only about 12 of the larger departments have drug testing policies in their firefighter contracts. In those contracts, testing is allowed only on the basis of reasonable suspicion. Like the police, Carosa says it is the firefighters' union that pushes towns to institute drug testing policies as a safety measure.

STUDENTS IN PUBLIC SCHOOLS

Law

School officials have wide discretion in formulating school regulations, but a school is always bound by the requirement that the regulations be reasonable. A reasonable school regulation is one that is essential to maintain order and discipline on school property (68 Am Jur 2d, Schools, 3242). Ordinarily, school officials have the right to define the offenses for which the punishment of suspension or expulsion from school is imposed (Id., 261).

There are no state or federal statutes that cover drug testing of students in school. Student testing is subject to the limitations of the Fourth Amendment prohibiting the state from conducting unreasonable searches and seizures because the U.S. Supreme Court has ruled that public school officials are state officers covered by the Fourth Amendment (New Jersey v. T.L.O., 469 U.S. 325 (1985)). But students can be required to take random drug tests in certain situations.

The most recent high court ruling on the issue of drug testing of public school students is Vernonia School District 47J v. Acton, 115 S. Ct. 2386 (1995). In that case, the Court upheld a public high school's policy of making participation in school sports conditional on students and parents consenting to periodic, random drug testing of student athletes. In a previous case, the Court had ruled that a search that is unsupported by probable cause and conducted without a warrant can be constitutional “when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable” (Griffin v. Wisconsin, 483 U.S. 868, 873). In Vernonia, the Court ruled that such “special needs”exist in the public school context. The six-judge Court majority based its ruling on three basic points. First, unemancipated minors do not have all the same rights as adults. Schools are allowed to exercise a degree of supervision and control over their students that could not be exercised over free adults. Second, students, and especially student athletes, have a lesser expectation of privacy than members of the general population. Third, the need to discourage drug use among children is compelling enough to justify the type of testing that the school district engaged in.

Practice in Connecticut Schools

Mark Stapleton of the State Department of Education's Legal Affairs Division, interprets school districts' authority to institute random drug testing of students very narrowly. In his opinion, it can only be required as a condition of participating in school sports. School districts cannot require drug testing as condition for attending school or for any other activity that is compulsory. Thus, for example, a school district may not require a negative drug test as a condition for a student to return to school at the end of an expulsion or suspension period. As for testing based on “reasonable suspicion” of drug use, Stapleton discourages districts from testing students in such situations. He notes that if there is enough disruptive behavior to generate reasonable suspicion, the school district also would have ample cause to suspend that student from school. Most districts handle such problems by suspensions. Stapleton says that school districts in Connecticut are focussing their attention on drug possession rather than drug use. And they have zero tolerance, with possession of illegal drugs resulting in immediate suspension.

Mike Savage of the Connecticut Association of Schools, the organization that runs the Connecticut Interscholastic Athletic Conference (CIAC), is not aware of any school districts in the state that have random drug testing policies for their student athletes. He says that most superintendents asked their school boards to review the issue in response to the Vernonia decision but none has yet instituted any random testing. He is also unaware of any schools with a policy of testing student athletes in any other situations, such as if they win track races or suffer an injury during a sporting event.

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