e-Bulletin: NINTH CIRCUIT LIMITS PUBLIC EMPLOYERS’ ABILITY TO PERFORM PRE-EMPLOYMENT DRUG TESTING

In a recent decision from the Ninth Circuit Court of Appeals, Lanier v. City of Woodburn (2008) 518 F.3d 1147, the Court placed significant limitations on a public employer’s ability to implement pre-employment drug testing.  The Court held that a city’s blanket suspicionless pre-employment drug testing policy violated the Fourth Amendment to the United States Constitution as it was applied to an applicant for a library page position.

The City of Woodburn, Oregon had a policy which required all chosen candidates for City positions to pass a pre-employment drug test as a condition of the job offer.  Plaintiff Lynn Lanier applied for a part-time position at the Woodburn Library as a library page.  Woodburn made a conditional job offer, subject to the successful completion of a pre-employment drug and alcohol test.  When Lanier refused to be tested, Woodburn rescinded the job offer.  Lanier challenged Woodburn’s drug-testing policy.

The Court held that the pre-employment drug screening was a search within the Fourth Amendment to the United States Constitution and therefore, to be valid, must “fit within the closely guarded category of constitutionally permissible suspicionless searches.”  To be constitutionally permissible, a search must either be based upon individualized suspicion of wrongdoing or be justified upon “special needs, beyond the normal need for law enforcement.”

The Court held that the City’s policy, as it applied to Lanier, was unconstitutional because the City failed to demonstrate a special need for subjecting Lanier to a drug test.  Specifically, based on the facts of the case, the Court found insufficient the City’s arguments that drug abuse was a serious societal problem, that drug use adversely impacted job performance, and that children must be protected from those who use drugs or could influence children to use drugs.

While the drug-testing policy was held unconstitutional as it applied to Lanier, the Court refused to hold that the policy could never be constitutionally applied to any City position.  Such a policy could be constitutionally applied to “safety-sensitive” positions.  “Jobs are considered safety-sensitive if they involve work that may pose a great danger to the public.”  The Court cited to numerous cases which provide examples of what may constitute a “safety-sensitive” position, including operation of dangerous equipment, operation of railway cars, the armed interdiction of illegal drugs, work in a nuclear power facility, work involving matters of national security, work involving the operation of natural gas pipelines, work in the aviation industry and the operation of dangerous instrumentalities, such as trucks in excess of 26,000 pounds, used to transport hazardous materials, or that carry more than fourteen passengers.

Public employers who utilize pre-employment drug and alcohol testing are encouraged to revisit their policies in light of the Ninth Circuit’s recent decision.  A policy which requires each applicant, without regard to the particular position or applicant, to submit to a pre-employment drug or alcohol screening is subject to attack under the Fourth Amendment.  If you have any questions as to whether your specific policy is valid in light of Lanier v. Woodburn, the attorneys in Best Best & Krieger’s Labor and Employment Practice Group can advise you accordingly.

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