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Special Considerations

Mandatory vs. Optional Testing

Under federal law, jobs that involve safety or security functions generally require mandatory drug testing of applicants or employees.  The U.S.D.O.T. adopted revised regulations in August 2001.  Other agencies are free to adopt their own internal regulations as well.  Likewise, many states expressly mandate drug testing for similar jobs.  Examples include but are not limited to: medical/health related jobs, employment requiring the use of machinery or vehicles, security positions, food handling occupations, and physically demanding professions, e.g. utilities cable line installation.

"For Cause" vs. "Random" Testing
Generally, employers are permitted to engage in "for cause" or reasonable suspicion testing under drug free workplace programs.  State law may limit or prohibit random tesing of employees unless the job position warrants an intrusion, such as in "safety sensitive" positions.  It is important to remember that private sector employees do not always enjoy Fourth Amendment rights protecting them against unjustified or unreasonable searches and seizures (only Fifth Amendment rights are extended to the states by the Fourteenth Amendment).  Nevertheless, many state constitutions incorporate such rights into their own constitutions incorporate such rights into their own constitutions, so private sector employees may have the same protections.
Testing Union vs. Non-union Employees
Union employees are protected by the National Labor Relations Act (N.L.R.A.), which mandates that private sector employers must bargain collectively over terms and conditions of employment.  The N.L.R.A. has ruled that drug testing of employees, not applicants, is a condition of employment.  Unionized public sector employers may unilaterally decide to impose drug testing, but must negotiate the procedures (e.g. chain of custodies for speicmens, notices to employees, confidentiality methods, consequences of positive results, etc.).
Testing Employees vs. Applicants
Since applicants are generally deemed to have a lesser expectation of privacy than current employees, employees enjoy greater freedom to test applicants without the same concerns being invoked.  However, to contain costs many employers limit drug testing to those applicants they expect to offer a position to, as a condition of hire.  While there is no requirement to notify an applicant in advance of a drug test, he or she is free to refuse to submit to the test.  Refusal to submit, of course, may be grounds to terminate the application process.

Special Considerations - Compliance & Safety Management

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