AFFIRMATIVE — WORKPLACE DRUG TESTING — INHERENCY 273

CURRENT LAWS ARE INADEQUATE TO PROTECT WORKERS

EMPLOYMENT DRUG TESTING LAWS ALLOW EMPLOYERS TO IMPOSE TESTING ON THEIR EMPLOYEES FOR ANY REASON.

Mechelle Zarou, December, 1999, " THE GOOD, THE BAD, AND THE UGLY: DRUG TESTING BY EMPLOYERS IN ALASKA", Alaska Law Review

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Employment actions that employers may take based on the results of drug tests are as unlimited as the reasons for which employers may initiate drug testing programs in the first place. n84 For example, the employer can require that the employee attend counseling or rehabilitation or be subject to suspension and termination. n85 In the case of applicants, the employer can refuse to hire any applicant testing positive for drug use. n86 In addition, the employer may take an adverse action based on the employee's refusal to provide a drug testing sample. n87 The statute thus provides a plethora of protections for employers willing to incur the financial and administrative burdens inherent in complying with the Act.

CURRENT EMPLOYER DRUG TESTING LAWS PUT THE RIGHTS OF THE EMPLOYER OVER THE RIGHTS OF THE EMPLOYEE

Mechelle Zarou, December, 1999, " THE GOOD, THE BAD, AND THE UGLY: DRUG TESTING BY EMPLOYERS IN ALASKA", Alaska Law Review

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In Luedtke, the court upheld an employer's discharge of two employees for refusing to submit to a drug test, holding that the employer's safety interest outweighed the employees' right to privacy. n27 The Luedtke court did place restrictions on drug testing,  [*301]  however, requiring that the test be conducted at a time reasonably contemporaneous with work time and that employees receive notice of the adoption of a drug testing program. n28 Because one of the discharged employees was initially suspended for a drug test taken prior to the employer's announcement of its drug testing program, n29 the court remanded for a determination of whether his suspension breached the covenant of good faith and fair dealing for lack of notice. n30 In addition, the court found that the employer did not commit the common law tort of invasion of privacy when it drug tested the employees, since the test was not conducted in an unreasonable manner nor for an unwarranted purpose. n31

CURRENT EMPLOYER DRUG TESTING LAWS DO NOT PROTECT THE EMPLOYEE'S RIGHT TO PRIVACY IN THE PUBLIC SECTOR

Mechelle Zarou, December, 1999, " THE GOOD, THE BAD, AND THE UGLY: DRUG TESTING BY EMPLOYERS IN ALASKA", Alaska Law Review

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Both the United States Constitution and the Alaska Constitution protect an individual's right to privacy. The U.S. Constitution provides this protection in the penumbra of the Bill of Rights, n15 while the Alaska Constitution explicitly guarantees the right to privacy in Article I, Section 22: "Right of Privacy. The right of the people to privacy is recognized and shall not be infringed." n16 The U.S. Constitution has been interpreted to govern only state action, n17 except for the Thirteenth Amendment's prohibition of slavery, which also applies to private action. n18 The  [*300]  Alaska Constitution also has been interpreted to apply to state action. n19 In Luedtke v. Nabors Alaska Drilling, Inc., n20 the Alaska Supreme Court declined to extend the constitutional right to privacy to the actions of private parties. n21 Thus, neither constitution protects the privacy rights of employees in the private sector who are subject to drug testing.

DRUG TESTING LEGISLATION FAILS TO BALANCE THE RIGHTS OF EMPLYERS WITH THE RIGHTS OF EMPLOYEES

Mechelle Zarou, December, 1999, " THE GOOD, THE BAD, AND THE UGLY: DRUG TESTING BY EMPLOYERS IN ALASKA", Alaska Law Review

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While both the Utah and the Arizona statutes protect employee privacy more than the Alaska statute, both statutes still fail to enact legislation that offers the fairest compromise between the privacy rights of employers and employees. Both statutes protect the confidentiality of drug testing information through explicit provisions, but fail to provide any recourse for employees who suffer a breach of confidentiality. n151 Because each statute requires employers to refrain from disclosing confidential information, they should also provide the victims of disclosures some cause of action, whether through internal grievance procedures or the legal system. At the very least, the Legislatures could have mandated that a breach of confidentiality relating to drug testing forfeits the protection provided by these acts, just as failure to follow the testing and administrative procedures forfeits the protections of these acts. The failure of the three state legislatures to fully and effectively protect employee privacy rights indicates that each failed in its goal to create legislation that ensures "the preservation of privacy and dignity" n152 of employees and "fair and equitable testing for drugs and alcohol in the workplace." n153

THE DRUG FREE WORKPLACE ACT ALLOWS FOR VOLUNTARY COMPLIANCE AND DRUG TESTING AMONG EMPLOYERS

Mechelle Zarou, December, 1999, " THE GOOD, THE BAD, AND THE UGLY: DRUG TESTING BY EMPLOYERS IN ALASKA", Alaska Law Review

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The Drug-Free Workplace Act of 1998 n154 (the "1998 Act") is the small business counterpart to the Drug-Free Workplace Act of 1988 n155 (the "1988 Act"), which required implementation of drug-free awareness programs for federal contractors and grant recipients. The 1998 Act differs from the 1988 Act in that it earmarks $ 10 million for the Small Business Administration for grants to contract with not-for-profit organizations in order to provide small businesses with drug-free workplace programs. n156 The 1998 Act goes further than the 1988 Act, requiring such programs to include a written policy prohibiting certain substances in the workplace, two hours of substance abuse training for employees, additional training for employees who are parents,  [*319]  employee access to an employee assistance program, and employee drug testing. n157 The 1998 Act mandates that small business employers administer drug tests through a laboratory approved by the HHS, and that positive results be confirmed and reviewed by an MRO. n158 Because the 1988 Act does not make any reference to drug testing, n159 the 1998 Act marks the first time Congress has indicated, on a federal level, that employers may request federal funds for the purpose of instituting drug testing programs in private workplaces. n160 Although compliance with this statute is voluntary, businesses that decide to comply must provide the entire range of programs mandated in the statute, restricting the ability of small businesses "to tailor a program that meets their needs." n161

FEDERAL RESTRICTIONS ON DRUG TESTING DO NOT APPLY TO PRIVATE BUSINESSES

Charles Sykes, Senior Fellow at the Wisconsin Policy Institute, THE END OF PRIVACY, 1999, EE2001 -JGM, p. 147-8

The courts have repeatedly found that drug tests are a significant invasion of privacy, violating not only the Fourth Amendment, but also the Fifth Amendment's protection against self-incrimination, and the Fourteenth Amendment's protection of due process and privacy. Because those protections are not absolute, some forms of testing have been upheld, including those in which there is a "reasonable suspicion" that someone has been under the influence of drugs. Another exception is for random testing of government employees in jobs involving the public safety, and of some student athletes.