Most employers I have spoken with mistakenly believe that any employee can be tested for drugs. Nothing is that easy, especially in Massachusetts. If you want to minimize exposure (to legal liability, that is), you had better have a policy that is narrowly tailored and carefully crafted.
That is because Massachusetts is tougher on employers in this regard than other states are. In Massachusetts, an overly broad drug testing policy will subject the employer to liability for invasion of privacy and, if an employee is terminated for refusing to be tested, possibly for wrongful discharge. The Massachusetts Supreme Judicial Court ruled that peeing into a cup is a private act (yes, judges think about such things) and that your medical information is also private.
This is another area of the law where the employer may have to treat individual employees differently. For example, an employer would be justified to test employees who drive a company vehicle for many miles per year (under certain federal statutes, such as the trucking industry, drug testing can be mandatory; this trumps state law). Also, an employer would be justified testing employees where their jobs are such that being under the influence of drugs would pose a danger to themselves and/or the public. But for other employees who just sit in an office, their privacy interests may outweigh the employer’s interest in a drug-free workplace.
There are several other factors to consider when drafting a drug testing policy. Thus, an employer must retain a knowledgeable employment lawyer. The dollars that you spend on the drafting end could save you tens of thousands for what you might spend on the litigation end if you are sued and have a poor policy. Self-serving? Definitely. But in reality, most employers decide against drug testing after they learn the legal issues involved.
By Adam P. Whitney, 617.338.7000.
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