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A note for our readers: the views reflected by the authors do not reflect the views of ASPA.
By Joe Jarret
Recently, Virginia Rep. Morgan Griffith (R) introduced a resolution in Congress designed to remove federal obstacles to the possession and prescription of medical marijuana in those states where the aforementioned is legal. H.R. 4498: Legitimate Use of Medicinal Marijuana Act, dubbed “LUMMA,” is being carefully tracked by public and private entities across the United States. LUMMA provides that, among other things, the federal government assume a hands-off approach when it comes to the prescription of marijuana by a physician for medical use as well. It also covers the obtaining, possessing and transporting of medical marijuana within states permitting same, by an individual for that individual’s medical use. The complete resolution is available online at www.govtrack.us/congress/bills/113/hr4498.
The legalized use of medical marijuana continues to gain momentum and popularity across the U.S. Nevertheless, public sector employers have a vested interest in testing their employees in an effort to detect drug and/or alcohol use. However, unlike their private sector counterparts, governmental employers are limited by constitutional considerations. It is well settled that drug testing by government employers constitutes a search under the Fourth Amendment to the United States Constitution. Probable cause and a search warrant are generally required for government searches, although the Supreme Court has carved out some exceptions. One such exception is the “special needs” exception to the search warrant requirement. This exception permits warrantless searches of public buildings by health and safety inspectors and other administrative searches and has also been applied to the testing of employees for drugs and alcohol. For a comprehensive examination of the law relative to employee testing and warrantless searches see: http://ctas-eli.ctas.tennessee.edu/reference/governmental-employee-drug-testing-constitutional-issues#.
Based upon the above, public employers desirous of implementing some form of drug and/or alcohol testing must first determine who is to be tested and why it is necessary to test each particular group. Is there a documented drug or alcohol problem in the particular workforce? Is the group performing duties that are “fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences,” similar to train operators, nuclear power plant operators and customs agents who carry firearms and are directly involved in drug interdiction? In sum, a compelling interest must be identified. Once the interest is identified, the human resources director must insure that their entities’ policies and procedures are sound and legally defensible.
Working Partners, an organization that helps public and private entities develop and maintain drug-free workplace programs, suggests that an effective drug-free workplace program consist of five elements. They are:
A Written Substance Abuse Policy
This serves as an executive summary of the substance abuse program. It sets the tone of the program, outlines the responsibilities of employer and employee, references available help and explains the program including prohibited conduct, types and circumstances of testing and the consequences for violations. For a drug-free safety program to be effective, all the parameters and procedures will have been thoughtfully developed and then articulated in a user-friendly policy statement for employees, along with detailed operational guidelines and accompanying appendices (forms) for use by management.
Employee Awareness & Education
Employees are made aware of and receive education about the policy, responsibilities, consequences, alcohol and drug information, their rights and the resources available to them through the company and community if they (or one of their family members) need help.
Supervisors need to be trained in their role within the company’s substance abuse program. They should receive training about:
An Employee Assistance Plan of Action
An employer needs to identify a plan of action and the applicable resources for employees who seek help on their own, are referred by management for a possible problem with alcohol/drugs or have a positive alcohol/drug test. The possibilities range from a comprehensive contract with an external employee assistance program provider, to knowledge of the community service network that is subsidized with tax dollars.
Drug and Alcohol Testing (as appropriate)
Systems presence testing (drug and alcohol testing) serves as the scientific, objective evidence that a certain level of substance exists within the employee’s system. However, decisions about testing must balance the cost and practicalities of testing with the benefits. An employer has myriad decisions to make about their drug-free testing program. These include questions such as when they will test, who will be tested, what drugs will be tested for, what are the appropriate cutoff levels and what protocols and laboratory will be used.
As Congress and various state legislatures continue to take a fresh look at the use and possession of drugs in the workplace, public employers are encouraged to insure that their drug-testing policies, procedures and protocols are not in conflict with this ever-evolving body of law.
Author: Joseph G. Jarret is a public sector manager, attorney and mediator who lectures full-time on behalf of the Master of Public Policy and Administration program in the Department of Political Science at the University of Tennessee, Knoxville. He is the 2013 president of the E. Tennessee Chapter of ASPA.