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The Law At Work

Q. Given our national and local emergency involving opioids, should we implement a random, suspicionless drug testing policy?

A. Public employers are subject to constitutional restrictions on the power of the state to engage in searches or to invade individual privacy. Sixteen years ago, the Alaska Supreme Court decided that employees of Anchorage’s police and fire departments could not be randomly tested. As a result of that decision, public employers may not implement random drug testing for employees. The court did not prohibit for cause/suspicion based testing, post-accident testing, pre-employment testing, or testing prior to promotion, demotion or transfer. Because the court’s ruling was based on interpretation of the Alaska constitution, any different development in the federal courts interpreting the United States Constitution will not alter this precedent.

Q. We can always test someone after they’ve suffered a work-related injury or accident, right?

A. For private employers, the ability to test after an accident has been undermined by new OSHA regulations designed to promote reporting of injuries and accidents and prevent retaliation against employees who report. Agency comments stated that employers may test after an accident only when it can be objectively determined that the employee’s acts or inactions may have contributed to the accident or injury. The purpose of the OSHA regulation is to protect employees who report injuries or accidents from being retaliated against through imposition of unfair testing. OSHA expressed concern that overbroad post-accident/injury testing could chill employee willingness to report accidents or injuries.

OSHA’s examples of unreasonable testing included testing an employee after receiving a report of repetitive strain injury. OSHA reasoned that it would not be objectively reasonable to require testing because drug use could not have contributed to the injury. Concerning retaliation, OSHA gave the example of an employer’s decision to test workers injured in a crane accident, but not to test the crane operator. Although the relevant regulation is not directly applicable to state and local government, the state’s comparable agency may adopt similar guidance in the future. Employers should review their current policy on post-accident testing to confirm that it meets the reasonableness standard. In addition, employers must make sure that their application of the policy does not suggest any retaliatory bias or motive.

“The Law At Work” is written by Kim Dunn of Landye Bennett Blumstein, LLC. Ms. Dunn answers your employment law questions through the Employment Law Hotline, a free service to AMLJIA member managers, mayors, superintendents and supervisors. Call 877-4AMLJIA (877-426-5542) for a free 30-minute consultation before taking personnel action.