The constitutionality of drug testing in the employment context is determined on a case-by-case basis[FN1] and may differ depending on whether the testing is of current employees or of job applicants.[FN2] An employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions.[FN3]
Illustration: Drug and alcohol testing of job applicants by a government employer did not violate an applicant's right to privacy, when the testing was part of a program under which everyone who was offered a new position by the employer was required to submit to the testing.[FN4] However, the collection and testing of urine for purposes of ascertaining drug use were held to be an intrusion on an employee's right to privacy, despite the employer's argument that its interest in rail safety justified the invasion, when that interest was not applicable to the specific employee in question; the employee's job did not have sufficient safety aspects to constitute a safety interest that might be balanced against the intrusion on her privacy rights.[FN5] In addition, off-duty drug testing was held to violate an employee's constitutional right to privacy, when the employer failed to show that no less intrusive alternatives were available.[FN6]
Every private employer regularly employing 25 or more employees must reasonably accommodate any employee who wishes to voluntarily enter and participate in an alcohol or drug rehabilitation program, provided that this reasonable accommodation does not impose an undue hardship on the employer.[FN7] The employer is not required to provide time off with pay, except that an employee may use sick leave to which the employee is entitled for the purpose of entering and participating in the alcohol or drug rehabilitation program.[FN8] All employers must make efforts to safeguard the privacy of an employee as to the fact that he or she has enrolled in such a program.[FN9]
Nothing prohibits an employer from refusing to hire, or discharging an employee who, because of the employee's current use of alcohol or drugs, is unable to perform his or her duties, or cannot perform the duties in a manner which would not endanger his or her health or safety or the health or safety of others.[FN10]
