Misconduct MC 270

This section discusses principles governing determinations on discharges resulting from intoxication or use of intoxicants, and drug testing.

A. Use of Intoxicants

"Intoxicant" as used in this section means any alcoholic beverage or distilled spirit, and drugs or other substances summarized as opiates, opium derivatives, hallucinogenic substances (including marijuana), and depressants of the nervous system such as phenobarbital and amphetamines.

When the employer alleges that the claimant used an intoxicant or was intoxicated and the claimant denies the allegation, it is necessary to gather facts to determine if the claimant indeed used intoxicants or was indeed intoxicated. The statement, "He was intoxicated," is a conclusion which may or may not be based on facts. If the facts do not support the conclusion that the claimant used intoxicants or was intoxicated, he or she would not be disqualified.

Example - Evidence of Intoxication:

The claimant was employed as cab driver. On the day he was discharged, he had returned to the employer's garage at the end of his shift and was observed by the head traffic superintendent as he checked in his cab. As a result of his observations, the superintendent reached the conclusion that the claimant had been drinking on the job, and immediately discharged the claimant.

The claimant denied that he was intoxicated at the time in question. He said that he had donated a pint of blood to a blood bank two days earlier and that had left him in a weakened condition. He stated that he felt ill when he turned his cab in, and that may be why the superintendent believed that he had been drinking. The employer’s head traffic superintendent testified that when he saw the claimant checking in at the garage, the claimant was in a 'very staggering condition'; that he 'wobbled' in going from the time clock to the cashier; that in appearance he was 'red faced, kind of blurry'; that in the 12 years of his employment with the employer, the superintendent had 'probably handled 200 cases of drunkenness of drivers'; and that in his opinion the claimant was intoxicated.

The employer also introduced a written statement from the doctor in charge of the blood bank at which the claimant had made his blood donation. This statement showed that the claimant was examined prior to his blood donation and was found to be normal, and set forth the doctor's opinion that the after effects of a blood donation in a normal person would not last longer than four or five hours. Other evidence produced by the employer showed that the claimant had at least once previously been terminated for drinking on the job.

The evidence in this case overwhelmingly points to the conclusion that the claimant was under influence of intoxicants at the time he checked his cab in at the appellant's garage.

Note that the employer in this case did not just give a conclusion that the claimant was intoxicated. Instead, the employer presented facts to support the conclusion that the claimant was intoxicated.

It is possible that a claimant will be under medical treatment and give the appearance of being intoxicated. This can happen as a result of certain medical prescriptions and occasionally happens with a diabetic patient who has had improper insulin shots. Verification of the condition or the prescription of drugs generally may be obtained through the claimant's physician.

Title 22, Section 1256 37 provides:

(Except where intoxication is the result of an irresistible compulsion to use or consume intoxicants or an inability to abstain) . . . an employee's conduct constitutes misconduct due to intoxication or the use or consumption of intoxicants if . . . :

(1) He or she is intoxicated at the time he or she reports to work or returns to work following a lunch or rest period or similar period. As used in this subdivision, 'intoxicated' means under the influence of any intoxicant to the extent that a reasonable observer would conclude that there is a significant adverse effect upon an individual's normal ability, skill, or competence to perform the usual duties of the work assigned.

(2) He or she uses or consumes any intoxicant other than alcohol during a lunch or rest period or similar break period.

(3) He or she uses or consumes any intoxicant during working hours.

(4) He or she uses or consumes alcohol during a lunch or rest period or similar break period after prior warning or notice of an employer rule that use or consumption of alcohol during such break periods will result in discharge.

(5) He or she reports to work not intoxicated but with offensive physical effects due to the use or consumption of any intoxicant which adversely affects his or her ability or performance on the job, after receiving at least one warning or reprimand. "

  1. Intoxicated When Reporting to Work or Returning to Work After Lunch or Rest Period or Similar Break Period. When an employee is intoxicated his or her performance on the job would be adversely affected. He or she would have substantially breached a material duty owed the employer, and the resultant discharge would be for misconduct (unless the intoxication results from an irresistible compulsion). It is not necessary that there is an employer rule prohibiting intoxication for a finding of misconduct. Likewise, prior warning or reprimand is not necessary. Example - Report to Work Under the Influence of Alcohol: The claimant was a gardener. On the last day of work, he was blowing leaves off stairs with a portable blower when he slipped on some sand and fell injuring his ankle. He went to a medical center for treatment and afterwards he was asked to and participated in an alcohol and drug screen. He came up positive for alcohol. The reading was .12. He was then suspended and later discharged. The claimant testified that the night before he had the accident he drank three liters of wine, but did not drink after 10 p.m. or before going to work at 7 a.m. the following morning. He stated he did not have an irresistible compulsion to consume intoxicants. The discharge was for misconduct. The claimant reported to work under the influence of alcohol. He tested positive with a reading of .12, a reading in excess of the State standard for being under the influence while operating a motor vehicle. It evidently affected his ability to work. What if an employee refuses to take the alcohol or drug test required by the employer to determine if the employee is under the influence of intoxicants? If the employee refuses to take the test and is discharged for the refusal, see C.1. Refusal to Take Drug Test below.
  2. Use of Intoxicant Other Than Alcohol During Lunch or Rest Period or Similar Break Period. Use of intoxicants other than alcohol during lunch or break periods would be misconduct, unless the use of intoxicant is due to an irresistible compulsion. Furthermore, it is not necessary that there is an employer rule prohibiting the use of intoxicants other than alcohol during the break periods, or that the claimant is given a prior warning, before misconduct is found.
  3. Use of Intoxicants During Working Hours Using intoxicants during working hours would evince a disregard of the standard of behavior which the employer has a right to expect, and would be considered misconduct, unless the use is due to an irresistible compulsion. Example - Use of Controlled Substances During Working Hours: The employer, at the request of the Department of Defense, began an investigation into the use of drugs and the dealing of drugs on the employer's premises by workers. During the course of the investigation, the claimant's name was mentioned as a user and purchaser of controlled substances. The claimant was interviewed by an investigator. The claimant admitted to the investigator that he smoked marijuana during working hours and purchased other controlled substances from fellow employees. He was then discharged by the employer. The discharge was for misconduct. Using controlled substances during working hours violated the standards of behavior which the employer had a right to expect of him. Example - Drinking While on Duty: In P-B-221 the claimant, a bellman, was discharged for drinking while on duty. At approximately 9:00 p.m., room service was requested by a hotel guest; the guest was intoxicated and wished to discuss her marital difficulties. After five minutes' conversation, the claimant returned to the lobby. An hour later the same guest requested a bottle of liquor, which the claimant delivered to her. A lengthy conversation ensued, the claimant drank one drink, and left. Shortly thereafter the claimant was summoned again, this time to deliver a carton of cigarettes, and was there about five minutes. During the course of the evening, the claimant also had a drink with another hotel guest. The next morning the hotel manager learned of the incidents, telephone the claimant, and reprimanded him. Later, the guest made an (unfounded) complaint that a ring was missing, and the manager called the claimant and told him not to report for work. Later, he discharged the claimant for drinking on duty and spending time in a guest's room. The employer testified that all employees of the hotel are informed at the time of hire that drinking on the job is grounds for termination. The claimant testified that he had never been so advised, and that he saw nothing wrong with taking a drink during working hours. The Board disagreed and stated: In the instant case the evidence establishes conclusively that the claimant, while on duty . . . partook of at least two drinks of intoxicating liquors with guests of the hotel. He was discharged for this violation of the employer's rules and for spending time in a guest's room. While there is a conflict in the evidence as to whether the claimant was specifically made aware of the existence of the rule against drinking, it is our opinion that his actions were such as to evince a disregard of the standards of behavior which the employer had a right to expect of him and were not simply good faith errors in judgment or discretion . . . . Note that when drinking on the job is involved, it is not essential that the employer has a rule against it. In P-B-221, the claimant stated he had never been advised that drinking on the job is grounds for termination. The Board admitted the conflict in the evidence as to whether the claimant was aware of the rule against drinking, but nevertheless found the claimant ineligible. Neither prior warnings nor reprimands are necessary for drinking on the job to constitute misconduct. Example - Drinking on the Job - No Prior Warning: The claimant was a home delivery driver. On the last date of work, after he made his deliveries and was returning his vehicle to the company, he was pulled over by the police. The claimant was arrested for driving under the influence of alcohol. He submitted to a blood test and was later found to have alcohol in his system in excess of the legal limits. The claimant ultimately pled guilty to the charges. He admitted to having at least two beers while he was still on duty. He said he had something to eat in his truck and also drank the beers. He contended that he had not been involved in this sort of problem with the employer before, and had never been warned that drinking on the job would subject him to automatic termination. The discharge was for misconduct. The claimant was arrested and convicted of being under the influence of alcohol while driving on the job. The absence of a warning on the part of the employer does not prevent the finding of misconduct. What if the claimant is a bartender and had a drink with his or her customers? In certain occupations, drinking on the job may be allowed or condoned. It is common for a bartender to have a drink with his or her customers. If the claimant was discharged solely for this reason, the discharge would not be for misconduct. What if the claimant states "everyone else on the job drank" as his or her reason for drinking? If this is so and the employer, although aware of the practice, took no action against it, the claimant's discharge would not be for misconduct. The employer, in effect, would have condoned the drinking. However, if the employer was not aware of the practice, the fact that "everyone else drank" would be immaterial.
  4. Use of Alcoholic Intoxicant During Lunch or Rest Period or Similar Break Period Use of an alcoholic intoxicant during lunch or break periods would not be misconduct unless there is an employer rule prohibiting consumption of alcohol under penalty of discharge, and the claimant knows about it or prior warnings have been given.
  5. Reports to Work With a Hangover An individual may be subject to disqualification if he or she reports to work with a hangover, even though he or she may not be intoxicated. The hangover may adversely affect his or her ability to work or may offend the employer's customers. It should be noted that when the claimant was discharged for reporting to work with a hangover, it requires at least one warning or reprimand for a prior violation before misconduct is found . Example - Reporting to Work With a Hangover: The claimant was a stock clerk and food checker in a chain store. His employment contract called for him to be at his checkstand, ready to work, at twelve noon. On the last day of work, he entered the store at noon and went to a back room to prepare to go to work. After 10 or 15 minutes, the acting manager checked and found that he was still preparing to go to work. His eyes were bloodshot, his clothes wrinkled, and he smelled strongly of alcohol. He said that he had been to a party the night before, had a few drinks, and had not arrived home until 2:30 a.m. Because the claimant had received prior warnings for the reporting to work in a like condition, he was discharged. The claimant had a duty to conduct himself during his off-duty hours in a manner that would enable him to report to work ready for work at the scheduled hour and in proper physical condition. The discharge was for misconduct, the claimant breached a duty owed his employer.
  6. Use of Intoxicants Off the Job Generally speaking, the conduct of a claimant off the job is his or her own affair and does not affect the employer's legitimate business interests. However, if the claimant used or consumed intoxicants while off the job to the degree that it seriously impaired his or her ability to work, this would tend to injure the employer's interests and misconduct may be shown, unless the use of intoxicants is due to an irresistible compulsion. Example - Drinking Off the Job Not Misconduct: In P-B-191, the claimant was employed as a janitor by the Mather Air Force Base. He was arrested for drunk driving and paid a fine of $250. Later he was separated from federal service on the ground of serious misconduct while off duty. The Board found the claimant eligible and stated: We have previously held that, in order to constitute misconduct within the meaning of code section 1256, the claimant must have materially breached a duty owed the employer under the contract of employment, which breach tends substantially to injure the employer's interest. . . . In the present case, the incident occurred while the claimant was off duty and did not tend substantially to injure the employer's interest. Accordingly, we find that the claimant was discharged for reasons other than misconduct connected with his work. What if the claimant has consented, as a condition of employment, to refrain from drinking both on and off the job? Example - Claimant Consented Not to Drink: The claimant had been suspended for 30 days for reporting to work under the influence of alcohol. He was reinstated when he agreed to refrain from drinking alcoholic beverages, both on and off the job. It was also agreed that any violation of this stipulation would result in a discharge. About three months later the claimant was arrested for driving without a driver's license. After his release the employer convened a conference to ascertain the reason for his arrest. At the conference, the employer asked the claimant if he had drunk any alcoholic beverages since their agreement. The claimant replied that during his off duty hours he had an occasional beer. The employer then discharged the claimant for violating their agreement. The Board found the claimant eligible and stated: A claimant's activities during off-duty hours may very well be detrimental to the employer's interest, and a discharge because of such activities can be for misconduct connected with the work. Although the claimant did not violate an employer rule, he did violate the agreement he had with the employer. The claimant was not discharged because he was incarcerated, but because he admitted drinking an occasional beer off the job. The record is clear that after signing the agreement the claimant did not report for work under the influence of alcohol. Nor did he report with the odor of alcohol on his breath. There is no showing that his off-the-job drinking subsequent to the agreement adversely affected the employer's interests. Before it can be held that mere violation of an agreement constitutes misconduct; it must be shown that the act itself was misconduct. In this case, the employer presented no evidence to show that the claimant's failure to live up to the terms of the agreement injured or tended to injure the employer's interest. What if the use is off the job, and the claimant reports to work with a detectable level of a controlled substance in his or her system, but not under the influence of the controlled substance? Example - Report to Work With Detectable Level of Intoxicant: The employer had a substance abuse policy which prohibited employees from reporting to work with a detectable level of intoxicants or illegal drugs. The policy further provided that an employee involved in a workplace accident would be required to take a drug test. Refusal to submit to a drug test under those circumstances would be cause for discharge. The claimant worked as a ramp worker from 3:00 p.m. to 11:00 p.m. At about 7:00 p.m. he moved a jetway from an aircraft. Prior to doing that, he did not disconnect the ground power line which was connected to the plane. As a result, damage was caused to the aircraft. The claimant immediately notified the supervisor. The claimant was then escorted to a nearby medical facility for a drug test. He tested positive for the presence of marijuana metabolites. The results were confirmed by another test. The claimant was then discharged. The claimant admitted that he used marijuana at a bachelor party two days prior to the incident, but said that when he reported to work on the last day he was not feeling the effects of the marijuana usage. The discharge was for misconduct. The employer's policy prohibited employees from reporting to work with a detectable level of intoxicants. The claimant wilfully violated a reasonable employer rule.

B. Irresistible Compulsion to Use or Consume Intoxicants

If the claimant is discharged because of the use of intoxicants, either on or off the job, the discharge would not be for misconduct if he or she has an irresistible compulsion to use or consume intoxicants.

Title 22, Section 1256-37(c) provides:

An employee's discharge is not for misconduct due to intoxication or the use or consumption of intoxicants if the intoxication-induced behavior was the product of an irresistible compulsion to use or consume intoxicants, or if the use or consumption of intoxicants was permitted or condoned by the employer.

An irresistible compulsion to use or consume intoxicants is regarded as an uncontrollable illness rather than a voluntary act on the part of the claimant. If the claimant suffers from such compulsion, then the discharge is not for misconduct.

Example - Irresistible Compulsion to Use Intoxicants:

In Jacobs v. CUIAB (Third Appellate District, 1972), the claimant had been employed for 12 years as a ramp serviceman for an airline company. Because he suffered from alcoholism, it had been necessary on several occasions to send him home from work because of his condition. After warnings for reckless driving and an accident while driving on the ramp, he was also suspended from driving company vehicles. He was ultimately discharged because of chronic absenteeism stemming from intoxication due to alcoholism. In holding the disqualification under Section 1256 did not apply because wilfulness of the intoxication had not been shown, the Court said:

Measured by the volitional test established under Section 1256, the findings of the Appeals Board do not support petitioner's disqualification. The agency should have inquired and found whether he had the capacity to abstain from drinking which adversely affected his work. If his intoxication-induced behavior was the product of an irresistible compulsion to drink, his behavior was neither wilful nor wanton . . . If he had the ability to abstain from intoxication-caused work lapses, his actions were wilful, evoking the disqualification for misconduct.

  1. Section 1256.5 of the UI Code A claimant who is discharged due to an irresistible compulsion to use intoxicants is not subject to disqualification under Section 1256 of the UI Code. However, he or she would be disqualified under Section 1256.5 of the UI Code. Section 1256.5(a) provides: (1) An individual is disqualified for unemployment compensation benefits if . . . the director finds that he or she was discharged from his or her most recent work for chronic absenteeism due to intoxication or reporting to work while intoxicated or using intoxicants on the job, or gross neglect of duty while intoxicated, when any of these incidents is caused by an irresistible compulsion to use or consume intoxicants, including alcoholic beverages. In P-B-400, the Board commented on the intent of the legislature in enacting this section of the UI Code. It states: The enactment of section 1256.5 of the code merely reflects the concern of the legislature that alcoholism is an all too common social disease over which its victims have little control and that the denial of benefits for nonvolitional conduct is harsh. On the other hand, the legislature has expressed its intent that the victim not be granted unemployment insurance benefits unless and until he or she can demonstrate that positive steps have been taken to obtain rehabilitation. Consequently, under this statute, the claimant will receive no benefits until he or she adopts a more responsible position by seriously addressing the problem of his or her alcoholism to a degree sufficient to permit him or her to return to work. Although the Board addresses alcoholism in the above paragraph, the same can be said of addiction to other intoxicants. Example - Discharged Due to An Irresistible Compulsion to Use Intoxicants: In P-B-445, the claimant was discharged by his employer for reporting to work under the influence of alcohol. The claimant, in an interview with the Department on March 13, stated that he had been drinking prior to reporting to work on the last date of work, and that he had been sent home from work on that date. He also indicated he had been taking valium during the same time frame. On March 27, the claimant was disqualified under Section 1256 of the Code. No determination was issued with respect to Section 1256.5. The claimant appealed the disqualification and, in an interview with the Department on April 16, admitted that he was under the influence of intoxicants on his last day of work. He also admitted that he had an irresistible compulsion to take drugs and that he had completed a rehabilitation program. Again no determination was issued with respect to Section 1256.5 after the interview of April 16. The Board found the claimant not disqualified under Section 1256 of the Code and stated: In the appeal before us, the evidence establishes that the claimant had an irresistible compulsion to drink and this condition caused the behavior for which he was discharged by the employer. Under the circumstances, it must be held that the claimant was not discharged for misconduct within the meaning of section 1256 of the code because his conduct was not volitional. . . However, the evidence which supports this result also suggests that the Department should have issued a determination under section 1256.5 of the code, either following the March 27 interviewer, certainly, the April 16 interview. In other words, the Department should have found the claimant eligible under Section 1256 but ineligible under Section 1256.5 due to the claimant's irresistible compulsion to drink leading to his discharge.
  2. When Does Section 1256.5 Apply Section 1256.5 is applicable to discharges only when the claimant’s employment has been terminated because of chronic absenteeism due to intoxication, reporting to work while intoxicated, using intoxicants on the job, or gross neglect of duty while intoxicated that was caused by his or her irresistible compulsion to use or consume intoxicants. Sometimes the evidence does not readily indicate if the claimant has an irresistible compulsion to use or consume intoxicants. The following are indicators that the claimant may have an irresistible compulsion to use intoxicants:

While certain indicators point to the claimant’s inability to abstain, such as participation in a rehabilitation or detoxification program, the Department must rely on the judgment of "competent professionals" to substantiate that a claimant suffers from alcoholism to the degree that he or she is under an "irresistible compulsion" to drink, or that he or she has a physical addiction to drugs. Only the "competent professional" is qualified to diagnose such an addiction.

If the evidence indicates that the claimant had control over his or her actions, Section 1256.5 will not apply.

Example - Claimant Had Control Over Use of Drug:

The claimant was identified in an undercover investigation of drug use on the premises. The claimant confessed both verbally and in writing to using an illegal drug. He contended that he was driven to using it because of the constant pain he suffered from gout, and the overtime pressures from the employer. He also stated that he started using the drug because others were, and he probably would not have continued but for the fact that his friends were. He contended that the use of the drug did not hamper his job performance, but improved it. Once he was fired, he immediately ceased using the drug.

In this case, Section 1256.5 does not apply. Being driven by stress to use drugs, versus finding some other outlet, is more a matter of personal choice than an irresistible compulsion. Moreover, he was really doing it only because his friends were. He ceased using it as soon as he was discharged.

It should be noted that Section 1256.5 may not apply just because the claimant had a drinking problem before, and the claimant was absent from work without calling in. If the claimant states that his or her action leading to the discharge was not due to an irresistible compulsion, and the weight of evidence is not against his or her statement, he or she should not be disqualified under Section 1256.5.

Example - Section 1265.5 Does Not Apply:

The claimant was last employed for two and a half years as a machinist. He last worked on March 29. Thereafter he did not report for work for four consecutive days and did not call the employer until well after his shift had begun on the fourth day. He was therefore discharged.

On March 17, the claimant was placed on a three day suspension for his violation of the employer's attendance rules. He was also referred to the employer's employee assistance counselor who, in turn, referred the claimant to a therapist for evaluation and treatment. The claimant admitted to being an alcoholic and he was a member and regularly attended meetings of Alcoholics Anonymous.

However, the claimant insisted that it was not his drinking that caused him to miss the four days work which resulted in his discharge. He testified that during his four days absence he was suffering from a stress syndrome bordering on a "mental breakdown." Because of the stress crisis he was experiencing he felt incapable of facing anyone. He did not get out of bed to dress and fix his own food and he did not call anyone until the fourth day when he called the employer.

In this case, even though the claimant admitted he had a drinking problem, he should not be disqualified under Section 1256.5 of the UI Code. The claimant insisted that it was not his drinking that caused him to be absent, and there is no evidence to the contrary.

Occasionally, a claimant is discharged for stealing money from the employer, and states that he or she needed the money to purchase illegal drugs because of an addiction. Does Section 1256.5 apply? The answer is "no." In the case of a discharge, Section 1256.5 is applicable when the claimant has been discharged for chronic absenteeism due to intoxication or reports to work while intoxicated or uses intoxicants on the job, or gross neglect of duty while intoxicated. When the discharge is the result of other actions, the issue is resolved under Section 1256.

If the claimant voluntarily quit due to an irresistible compulsion to use or consume intoxicants, refer to BDG VQ 270.

C. Drug Testing

More and more employers have resorted to drug testing as a condition for continued employment. A claimant might refuse to take the drug test, claiming it was an invasion of his or her privacy, or might test positive and be discharged.

The Fourth Amendment to the U.S. Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Article 1, Section 1 of the California Constitution provides:

All people are by nature free and independent, and have certain inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety, happiness, and privacy.

On this issue of drug testing, the Board, in P-B-454 (1987), stated:

What becomes clear . . . is that there is no settled law on the issue, especially with regard to an unemployment insurance context. However, these cases are indicative of how courts have balanced the competing interests involved between legitimate employer concerns and employee rights. Notwithstanding the lack of clear judicial guidance, there does appear to be emerging from the courts that have examined the issue agreements on some things. A urinalysis or blood test is a search and therefore subject to the constraints imposed on the states by the Fourth and Fourteenth Amendments to the Federal Constitution . Both the State Constitution (Article 1, Section 1) and the Federal Constitution (through court interpretations) recognize a person's right to privacy.

Thus, a drug test, using urine or blood samples, is a search. It is subject to the constraint of the Fourth Amendment in that the search by a public employer is not permissible without "probable cause." The employee's right to privacy is protected by the California Constitution and the Federal Constitution (through court interpretations) from both public and private employers. In resolving issues involving drug tests, it is necessary to balance the competing interests between the employer's legitimate concerns and the employee's rights to privacy.

  1. Refusal to Take Drug Test When the claimant is discharged for refusal to take a drug test, it is necessary to determine if the employer's requirement that the claimant take the drug test is reasonable. The requirement is reasonable if the employer's compelling interest to test outweighs the employee's rights to privacy. To determine if the employer's compelling interest outweighs the employee's rights to privacy, the following questions need to be addressed:

The following cases and discussions illustrate the relevance of the above questions to issues involving drug testing.

    Random Testing Random testing is the choosing of an individual or a group of individuals on an arbitrary basis to determine if the individual's system contains drugs, without any particular suspicion that it does. By virtue of its being random, the test precludes any specific knowledge or reasonable suspicion on the part of the employer. Courts have generally held that random testing of employees is unlawful. However, random testing was determined to be permissible in the following case. Example - Random Testing Permissible: In Shoemaker v. Handel (U.S. Court of Appeals, 1986) the New Jersey Racing Commission has statutory powers to regulate horse racing in that state, including the testing of officials, jockeys, trainers, grooms and the postrace specimen testing of horses. On any given race day, the names of three to five jockeys are drawn at random from a pool containing the names of all that day's jockeys, and the selected jockeys must provide urine samples at the end of the race day. The jockeys challenged the Racing Commission, contending that the Commission's regulations authorize searches and seizures which violate Fourth Amendment protections and the enforcement of these regulations violates their constitutional right to privacy. The court found the testing not unlawful and stated:

In closely regulated industries . . . an exception to the warrant requirements has been carved out for searches of premises pursuant to an administrative inspection scheme . . . . [T]he question that arises in this case is whether the administrative search exception extends to the warrantless testing of persons engaged in the regulated activity. There are two interrelated requirements justifying the warrantless administrative search exception. First, there must be a strong state interest in conducting an unannounced search. Second, the pervasive regulation of the industry must have reduced the justifiable privacy expectation of the subject of the search. Public confidence forms the foundation for the success of an industry based on wagering . . . . It is the public's perception, not the known suspicion, that triggers the state's strong interest in conducting warrantless testing . . . . The State Steward has no discretion in conducting the tests. Moreover the State Steward has no discretion as to who will be selected for urine testing. That choice is made by a lottery . . . . Thus we hold that daily selection by lot of jockeys to be subjected to urine testing does not violate the Fourth Amendment. NOTE: California courts have not yet decided this issue of random testing. This New Jersey court decision is included to illustrate that in a heavily regulated industry, random testing may be allowed by the court.

[A] number of courts have examined various aspects of the issues involved in drug testing by public sector employers. These considerations are relevant since we are dealing with a public-provided benefit which cannot be withheld as a result of the demand that the employee waive a constitutional right.

In Semore v. Pool, the appellate court held:

While plaintiff could contractually agree not to assert his right to privacy, we think it clear that the employer could not use such an agreement to circumvent the public policy favoring privacy, and the employer could not successfully enforce such a contractual agreement if it intruded on plaintiff's right to privacy. If the intrusion violates the right to privacy, it is illegal whether or not it is pursuant to an agreement. If pursuant to such an agreement, the agreement would be unenforceable because it would be against public policy."

Other employers have similar rules. Interviewers who believe that an employer is subject to one of the federal regulations should verify with the employer that there is a regulation that covers the industry. If doubt still remains, the interviewer should ask the employer for written information concerning the drug testing policy.

If the employer has a drug testing policy as a result of a federal requirement, the employer's request for random testing is reasonable and the claimant's waiver of his constitutional rights is also reasonable. The claimant who objects to the randomness of the test will be subject to disqualification if he or she is discharged for failure to take or pass the test. See also c. and g. below.

While railroads clearly have an interest in the safe operation of their trains, it is not clear that testing Luck furthered this interest.

Some encroachment upon the right to privacy for drug tests (would be permitted) providing certain safeguards are met . . . . If the occupation is inherently dangerous, then employee testing will be permitted providing there exists a reasonable suspicion that the particular employee is functioning with impaired ability. The work the claimant was performing involved a high degree of risk to others, should it be performed by a person whose abilities were impaired by drugs or alcohol. The actions of the claimant led to the conclusion . . . that there existed a reasonable suspicion that the claimant may be under the influence of some ability-impairing drug. We think . . . the standard which governs our examination of whether or not the test required of the claimant was reasonable, is not whether or not the claimant was actually intoxicated or under the influence of an ability- impairing drug but rather, did the employer have reasonable grounds to suspect that the claimant may have been so impaired. Here, the fact that two of the employer's managers entertained such a suspicion leads us to the conclusion that their decision to compel the claimant to take the drug test was reasonable.

While each individual possesses a right to personal privacy, when an employee is employed in an inherently dangerous occupation where there exits a substantial risk of harm to himself or others, as was the case with the claimant here, such right must yield to the employer's overriding concern for the safety of all employees when there is a reasonable suspicion on the employer's part that an employee may be under the influence of some intoxicant. In P-B-454, the unusual behavior of the claimant provided the "reasonable suspicion" for testing. This "reasonable suspicion" may also be based on information that the claimant is a drug user. Example - Information That Claimant Used Drugs: In Allen v. City of Marietta, a U.S. District Court case from Georgia in 1985, the City Manager of the City of Marietta had received reports from various sources that employees of the Electrical Distribution Division of the Board of Lights and Water were using drugs. The City Manager determined that drug usage might have contributed to a large number of injuries to the employees. "Given the extremely hazardous nature of the work done by the employees, such drug usage on the job constituted a threat to the safety of the employees and the general public . . . ." The City Manager began an undercover operation to determine who was using drugs on the job. He introduced an informant into the workplace, who reported that he smoked marijuana with various employees both off and on the job and had kept records of individuals and dates. The City Manager noticed a correlation between the named individuals and "unexplained" accidents. Based upon the provided information, the City Manager decided to terminate about 16 employees for use of drugs on the job. When none "volunteered to resign," the City Manager advised them they would be fired unless they chose to take a urinalysis test. The six plaintiffs in this suit took the test and tested positive for the presence of marijuana. All were fired. Of the presence of reasonable suspicion, the Court stated:

[T]he court would find that evidence was presented to the effect that each plaintiff had used drugs on the job."

[His> privacy expectations were minimal since when he took the job, he knew that both the Coast Guard and oil companies with whom his employer contracted could order him to be tested at any time. . . . The requirement of a drug screen as part of an annual physical examination, under the circumstances, was a minimal intrusion on his already diminished expectation of privacy.

As for the employer's compelling interest to test, the Court stated:

Unlike an airport, transit authority, or even a nuclear power plant where some jobs might clearly be classified as non-safety-sensitive due to lack of access to equipment, places, or information disseminating areas where employee impairment could constitute a direct threat, the oil drilling platform was categorized by employer and employee as a hazardous work environment. . . . [T]hese potential threats to safety are more persuasive in the setting of an offshore drilling platform where all employees might be threatened by the acts of a drug-impaired employee than in a setting where the acts of a drug-impaired employee could not possible pose a direct threat to safety of the other employees or the employer’s business.

School bus drivers or mechanics directly responsible for the operation and maintenance of school buses might reasonably expect to be subject to urine and blood tests not required of other bus drivers without particularized suspicion. . . . It does not follow that a school bus attendant like plaintiff should have expected to be exposed to such testing or that public safety considerations required testing of a school bus attendant like plaintiff . . . ."

However, the employer appealed to the United States Court of Appeals, and the Court of Appeals reversed the decision of the District Court. The Court of Appeals stated:

The District Court correctly focused on these safety concerns, but it attempted to draw a distinction in this case between bus drivers and mechanics, who might constitutionally be subject to drug testing, and bus attendants, who could not be. . . . We disagree with this judgment. While the safety concern may be somewhat greater for a school bus driver, it is still quite significant in the case of an employee who is responsible for supervising, attending and carrying handicapped children. For example, the danger to a young, handicapped child, should she be dropped by an attendant or ignored while crossing the street, is obvious. In light of these safety concerns, we find that the (employer) acted pursuant to a significant and compelling government interest in requiring drug test . . . as a part of routine employment-related medical examination.

  1. Was it reasonable for the employer to require the claimant to take the drug test? (Whether an employer's requirement to test is reasonable is discussed in C.1., Refusal to Take Drug Test above.)
  2. How reliable was the drug test?