Drug Testing in the Workplace: An Employer's Guide
In Connecticut, employers may conduct drug testing to prevent and prohibit an employee's illegal substance abuse from interfering with the workplace. Under the appropriate circumstances, an employer may either conduct random drug testing of its employees or request that a specific employee submit to a drug test. However, an employer may be subject to civil liability if it fails to comply with certain federal and state laws governing the administration of drug testing in the workplace.
Under Connecticut law, an employer may administer random urinalysis drug testing in cases where: (1) it is authorized by federal law; (2) the employee is in a high-risk or safety-sensitive position pursuant to regulations adopted by the Labor Commissioner; or (3) the test is part of an employee assistance program sponsored or authorized by the employer, and the employee is voluntarily participating in the program.
Among other considerations, before instituting a random drug-testing program, employers should inform current and/or prospective employees that the employer is implementing such a program. Further, before testing employees, employers should obtain the employee's or prospective employee's written informed consent. Finally, to prevent liability under the Americans with Disabilities Act and The Health Insurance Portability and Accountability Act of 1996, as well as other federal and state laws, employers should keep drug-testing results strictly confidential and separate from the employee's personnel records.
REQUESTING THAT AN EMPLOYEE SUBMIT TO DRUG TESTING
Alternatively, in Connecticut, an employer may request that an employee submit to urinalysis drug testing where the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol, which adversely affects or could adversely affect the employee's job performance. However, if the employer does not maintain the requisite reasonable suspicion, the employer could be subject to liability for violating the employee's right to privacy.
Although Connecticut appellate courts have yet to explicitly define reasonable suspicion, one Connecticut Superior Court found an employer did not have the requisite reasonable suspicion to require an employee to submit to a drug test even though the employee: (1) stole from the company; (2) lied to supervisors; (3) had poor attendance; (4) borrowed substantial sums of money from the company coffee fund and other employees; and (5) had "flare ups" with other employees. The same court noted that if the employer's reasonable suspicion was based upon the employee's history of past drug use, and/or indicators that the employee was under the influence – such as slurred speech, glassy eyes, unsteady walk – these factors may have justified the employer's mandatory drug test.
Under Connecticut law, though, if an employee validly consents to drug testing, the employee effectively waives his right to challenge whether the drug test was an unreasonable search in violation of his right to privacy. Courts utilize the totality of the circumstances test to determine whether an employee's consent is valid. Courts review the employee's words, acts, conduct and state of mind to ascertain whether the employee's consent to the drug test was a matter of free and unconstrained choice or a mere acquiescence to authority. Thus, where the totality of the circumstances demonstrates that an employee consents to a drug test, the employer need not have a reasonable suspicion to justify the test.
Employers also should be mindful that at least one Connecticut federal court has recognized that consent to drug tests where the employee legitimately fears termination is coercive. Further, that court held that an employee did not validly consent to a drug test and, consequently, did not waive his right to privacy when an employer threatened to terminate the employee if the employee refused to submit to the drug testing.
The risks described above are only some of the areas where an employer could be subject to civil liability associated with drug testing in the workplace. Therefore, before testing employees for illegal substance abuse, employers should assess their exposure to civil liability and take the necessary precautions.