Drug Testing at Work: Balancing Reason with Presumption

Abstract

In an effort to increase productivity and reduce absenteeism, accidents, theft, equipment damage, and other losses attributed to employees who use illicit drugs, a growing number of private and public employers have begun to implement comprehensive drug-testing programs. Since public employees are protected by the Fourth Amendment's proscription of unreasonable searches and seizures, government-employee drug testing has engendered much legal controversy. Although employees of criminal justice agencies and other public employees have brought numerous lawsuits challenging various drug-testing schemes, the United States Supreme Court so far has decided only two cases in which public employees have challenged drug-testing plans. This article analyzes these cases and demonstrates that the Court has not yet articulated precise or even particularly useful guidelines for distinguishing constitutional drug-testing policies and programs from unconstitutional ones. Consequently, many important legal questions remain unresolved as the lower courts struggle to balance the employee's right to privacy with the employer's need to thwart job-related drug abuse.