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Understanding the Role of Reasonable Suspicion Drug Testing

October 29, 2019 | Cristina Loayza

Reasonable suspicion drug testing has long been a common practice and useful tool for enforcing drug-free workplaces. It’s a fair and reliable testing method that can both dissuade and detect drug and alcohol use. It’s also an issue of Individual privacy versus an employer’s responsibility for maintaining a safe workplace. With the trend of new laws (marijuana, etc.) impacting when or under what circumstances employers can conduct a drug test, the role of reasonable suspicion has never been more critical than ever before. Yet, we often hear about managers or supervisors shrugging off the opportunity to act in these situations potentially due to a biased employee relationship or friendship, for fear of “being a snitch” or the “bad guy,” or out of fear of not knowing what steps to take in the “heat of the moment.”

 

The origins of reasonable suspicion

From a legal standpoint, a drug test is a search[1]. Dating all the way back to 1968, in a case titled Terry v. Ohio[2] challenging a violation of the Fourth Amendment (protection from unlawful search and seizures), the U.S. Supreme Court held that a search is “reasonable” so long as there are specific and articulable facts, from an unbiased source, conducted out of reasonable caution, and based on something “more than a hunch.“ The ruling cited in part:

“ . . .  in justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.  . . [must be subject to] neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. . . judged against an objective standard: would the facts available . . . at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate  . . . Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. [emphasis added]

 

Reasonable suspicion drug and alcohol testing – what is it?

Companies that employ federally regulated workers should understand that there are very detailed training and procedural requirements for Department of Transportation (DOT) reasonable suspicion testing[3] that must be followed. Outside of federal regulations, Iowa is the only state that requires initial and annual reasonable suspicion supervisor training for employers that wish to conduct drug testing[4]. There may also be state-specific limitations that could impact an employer’s ability to conduct testing in reasonable suspicion situations – be sure to check the laws in each state that your company operates in.

Referencing the Iowa statute, “Reasonable suspicion drug or alcohol testing” means drug or alcohol testing based upon evidence that an employee is using or has used alcohol or other drugs in violation of the employer’s written policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience. For purposes of this paragraph, facts and inferences may be based upon, but not limited to, any of the following:

(1) Observable phenomena while at work such as direct observation of alcohol or drug use or abuse or of the physical symptoms or manifestations of being impaired due to alcohol or other drug use.

(2) Abnormal conduct or erratic behavior while at work or a significant deterioration in work performance.

(3) A report of alcohol or other drug use provided by a reliable and credible source.

(4) Evidence that an individual has tampered with any drug or alcohol test during the individual’s employment with the current employer.

(5) Evidence that an employee has caused an accident while at work which resulted in an injury to a person for which injury, if suffered by an employee, a record or report could be required under chapter 88, or resulted in damage to property, including to equipment, in an amount reasonably estimated at the time of the accident to exceed one thousand dollars.

(6) Evidence that an employee has manufactured, sold, distributed, solicited, possessed, used, or transferred drugs while working or while on the employer’s premises or while operating the employer’s vehicle, machinery, or equipment.

To simplify, a supervisor does not need to prove someone is under the influence of a specific drug or alcohol, the laboratory will help determine that, the supervisor (preferably two supervisors) simply needs to be able to articulate the facts that they observe at that moment, based on current information, that lead up to the decision to conduct a test. Observations may occur just before, during, or just after the employee is working.

 

Action steps

Reasonable suspicion drug and alcohol testing should be a part of every company’s policy. Employers will benefit by investing in their supervisors, who are positioned to enforce the company’s policy by providing training. There is a far better chance that a supervisor will act if they confidently understand how to recognize the signs, symptoms and documentation steps that are essential.

 


[1] Skinner v Railway Labor Executives’ Assoc., 489 US 602 (1989)

[2] https://supreme.justia.com/cases/federal/us/392/1/#tab-opinion-1947459

[3] https://www.fmcsa.dot.gov/us-department-transportation-dot-drug-alcohol-supervisor-training-guidance

[4] Iowa Code 730.5

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