Pre-employment drug testing is limited.

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(October 9, 2009) Is pre-employment testing limited to safety-sensitive jobs? The Ninth Circuit Court of Appeals in San Francisco recently rendered an opinion raising questions about the scope of pre-employment drug testing. In Lanier v. City of Woodburn the Court concluded that it was unconstitutional for an Oregon town to drug test a person who applied for the job of library page. The Court refused to agree with Lanier that the City’s policy was unconstitutional on its face, but did agree that, as applied to the job of library page, the requirement to test was unconstitutional.

At the recent SAPAA meetings in Austin this case was discussed by a panel in which I participated. The question was: What is the impact of the Lanier case? Meaning, to what extent must employers follow this ruling and thereby limit pre-employment testing to safety-sensitive positions only.

One view was that all employers must follow the Court’s ruling. I disagree. I believe that the decision is limited to “public” employers in Oregon. The Court itself limited the decision when it stated:

“. . . we discern no substantial risk to public safety posed by Lanier's prospective position as a part-time library page. * * * We express no opinion as to the weight of these considerations, if any, in a different case.

It must also be considered that other federal Circuits (Willner v. Thornburgh (D.C. Cir. 1991) 928 F.2d 1185 1188-1194 [upholding drug testing of all applicants for Counsel positions with the Department of Justice (including applicants for the antitrust division) relying on rationale that applies to job applicants in general] with Georgia Ass'n of Educators v. Harris (N.D. Ga. 1990) 749 F.Supp. 1110 1114-115 [striking down a Georgia statute that authorized pre-employment drug testing of all applicants for state employment]and the California Supreme Court have approved across-the-board pre-employment drug testing. (Loder v. City of Glendale, 14 Cal. 4th 846, 927 P.2d 1200,59 Cal. Rptr. 2d 696, followed in Ross v. RagingWire Telecommunications, Inc., 42 Cal. 4th 920 (2008)). While limiting testing those current employees being considered for promotion to safety-sensitive jobs the Court upheld testing all applicants stating as follows:

“. . . that when as in the case before us the drug screening program is administered in a reasonable fashion as part of a lawful pre-employment medical examination that is required of each job applicant drug testing of all job applicants is constitutionally permissible under the Fourth Amendment even though similar drug testing of current employees seeking promotion is not.”

One thing is clear, further evolution of this concept is likely.