Corporate Drug and Alcohol Test Policy: Part Three – Random Testing and Privacy Concerns

Companies often struggle with whether their drug and alcohol test policy should include random testing, suspicion-based testing, or both.  Private entities may enact and enforce drug testing policies, including “suspicionless” or random drug testing for its employees. Government or public agencies may not.  This has been a “hot button” in recent drug testing cases.

Several federal courts have recently struck down random drug testing policies by government agencies on the basis that the government was violating the individual’s Fourth Amendment privacy rights.  The U.S. Supreme Court has ruled that the government may only conduct “suspicionless” drug tests of employees in “safety-sensitive” job roles, such as air traffic controllers or nuclear power plant operators, whose job functions, if done improperly, would cause specific and potentially catastrophic threats to the public safety.

But these restrictions do not apply to private entities. The Fourth Amendment to the United States Constitution restrains governmental conduct and “requires the government to respect ‘[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures.’” Chandler v. Miller, 520 U.S. 305, 308 (1997) (quoting U.S. Const. amend. IV). Private employers are free to search their employees because the Fourth Amendment “does not apply to searches by private parties, absent governmental involvement.” United States v. Humphrey, 208 F.3d 1190, 1203 (10th Cir. 2000); see also Ritchie v. Walker Mfg. Co., 963 F.2d 1119, 1121 (8th Cir. 1992).  Companies should be aware of how such matters are handled in the public sector and be prepared to respond if employees raise this issue.