By Stephen C. Buckley
This Frequently-Asked Questions (FAQ) will address what are the duties and limitations on municipal employers safeguarding a drug and alcohol-free workplace. Under federal law New Hampshire municipalities must adopt and enforce policies to prevent the use of controlled substances in the workplace. In certain limited circumstances, New Hampshire municipalities can also screen municipal employees for drug and alcohol use.
Q: What are the requirements of the federal Drug-Free Workplace of 1988 as applied to New Hampshiure municipalities?
A: The federal Drug-Free Workplace Act of 1988. 41 U.S.C. §8101 et. seq. requires all organizations receiving federal grants, as do most New Hampshire municipalities, to maintain a drug-free workplace. To comply, municipalities are required to publish and give a policy statement to all employees informing them that the unlawful possession or use of a controlled substance is prohibited in the workplace and specifying the actions that will be taken against employees who violate the policy. Employers must also establish a drug-free awareness program to educate employees on the dangers of drug abuse in the workplace, the policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation and employee assistance programs, and the penalties that may be imposed on employees for violating those policies. However, while penalties or participation in a rehabilitation program must be imposed upon an employee convicted of a criminal drug offense in the workplace, this law neither requires nor authorizes random drug testing of employees.
Q: Can a municipality conduct drug and alcohol screening of a candidate for a municipal employment position?
A: There are limited circumstances where a candidate for a municipal employment position may be required to submit to a drug and alcohol screening. In general, the screening of prospective municipal employees, and in some instances volunteers, is limited to background investigations and criminal background checks. See RSA 41:9-b (for municipal employee candidates who would work with or around children or elderly persons, enter the homes of citizens, or collect or manage money); RSA 485-A:24 (for municipal recreation camp employees and volunteers). However, screening all prospective municipal employees for drug and alcohol abuse would violate the protections afforded under the Fourth Amendment to be free from unreasonable searches and seizures. The U.S. Supreme Court has solidly decided that drug and alcohol testing are forms of “searches.” Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 617 (1989); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989). This means that a municipality may not test prospective employees for drug and alcohol use in a way that is “unreasonable” under the Fourth Amendment.
Q: So, when is it reasonable to require a prospective employee to submit to a drug and alcohol screening?
A: Prospective employees who would serve in “safety-sensitive positions” may be required to submit to drug and alcohol screening. Courts have recognized that, while these employees have a privacy right that will be invaded by such tests, the government has a stronger interest in protecting the safety of the public which justifies the use of drug and alcohol screening. Employees who participate in an occupation that is regulated heavily to ensure safety, or which is fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences, are deemed to have a reduced expectation of privacy with respect to drug and alcohol testing. Employees who may fall under the category of “safety-sensitive personnel” include police officers and others who are required to carry firearms and/or are involved with drug crimes, emergency medical technicians, firefighters, transit employees and bus drivers.
Q: What about conducting random drug and alcohol screenings after a person has joined the municipal workforce?
A: Governmental employers may not ordinarily test their employees for drug or alcohol use without a specific reason for doing so. Federal courts have struck down purely random testing programs. Nevertheless, employees who serve in “safety-sensitive positions” may be required to undergo random drug and alcohol testing. Testing of these employees must still be reasonable, however, and narrowly tailored to respect the individual’s dignity while providing an effective deterrent to drug and alcohol use. This means that the employees must be given meaningful advance notice of the testing program and information about which drugs are the subject of testing and how it will work to reduce to a minimum any “unsettling show of authority.” Delaware v. Prouse, 440 U.S. 648, 657 (1979) (quoted in Von Raab, 489 U.S. at 672). The individual’s privacy must also be respected to the extent reasonable. For example, an employee required to provide a urine sample should be permitted to produce the sample behind a partition or in a bathroom stall with a same-gender monitor within listening distance. Von Raab, 489 U.S. at 661.
Q: What if a supervisor suspects an employee is impaired by drugs or alcohol?
A: A municipal employer may require an employee to undergo a Fitness for Duty medical exam, including a screening for drug and alcohol use, if there is some individualized suspicion that drug or alcohol use is taking place. While there is no single national standard for what constitutes reasonable suspicion in this situation, generally speaking, it may be said to exist when an employer has specific, objective facts, and reasonable inferences drawn from those facts, that suggest an employee is using drugs and/or is under the influence of alcohol while on the job. These facts might include things like observation of drug or alcohol use, apparent intoxication, abnormal or erratic behavior and reports from reliable and credible sources that drug or alcohol use is happening on the job.
Q: What about municipal employees who operate equipment and vehicles that require a Commercial Driver’s License (CDL)?
A: Under the federal Omnibus Transportation Employee Testing Act of 1991, 49 U.S.C. 31301 et seq., people who operate commercial motor vehicles (those with a total gross vehicle weight of 26,001 pounds or more, or which carry 16 or more people, including the driver, or which are used to transport hazardous materials) are required to have a commercial driver’s license (CDL). Federal regulations not only prohibit the operation of any commercial motor vehicle while using drugs or alcohol, but also require employers, including municipalities, to perform drug and alcohol screening of these employees in certain situations.
These situations include (a) the first time a driver reports to work for the employer, (b) optional pre-employment testing after a conditional offer of employment is made if all prospective employees are tested in exactly the same manner, (c) post-accident testing, (d) testing upon reasonable suspicion of drug and/or alcohol use (based on specific, contemporaneous, articulable observations of the person’s appearance, behavior, speech or body odors) and (e) return-to-duty testing after a violation. 49 C.F.R. Part 382, Subpart C.
In addition, CDL drivers are required to submit to random testing for drug and alcohol use. 49 C.F.R. §382.305(a). The regulations provide detailed instructions for the selection of employees for testing, the frequency of testing and the manner in which tests are to be conducted. There is also an option for states to exempt certain drivers from the testing requirements and the CDL licensing requirements. 49 C.F.R. §103(d)(3)(ii); 49 C.F.R. §383.3(d). The state of New Hampshire has chosen to exempt fire service personnel driving emergency vehicles assigned or registered to a department or fire service organization in pursuit of fire service purposes. N.H. Admin. Rule Saf-C 1801.02(a)(1).
Q: Are municipal employers required to accommodate the use of medical marijuana by its employees?
A: A municipal employer is not required to accommodate the therapeutic use of medical marijuana on the property or premises of any place of municipal employment. Employers are free to discipline an employee for ingesting marijuana in the workplace or for working while under the influence of marijuana. RSA 126-X:3 (III) (b) & (c).
Stephen C. Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 800.852.3358 ext. 3408 or at firstname.lastname@example.org.
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