Jottings By An Employer's Lawyer

Monday, November 29, 2004

Is Arrest For Drug Paraphernalia Reasonable Cause for Drug Testing?

Government entities do not shed their constitutional obligations merely because they have their employer hat on, and one of those is the prohibition of unreasonable searches and seizure. Which is why a government, as opposed to a private sector, employer, must have reasonable cause before requiring a drug test of its employees. In Relford v. Lexington-Fayette Urban County Government (6th Cir. 11/24/04) [pdf] the Court noted the central question was whether an employee's arrest for possession of drug paraphernalia was enough to require him to submit to random drug testing. In good judicial fashion however, the Court chose to answer a slightly different question:
In directing Relford to participate in the drug and alcohol abuse EAP, the Commission found that he had been arrested for possession of drug paraphernalia, falsely called in sick, abused sick leave, and falsified a report. The nature of Relford’s employment misconduct, i.e., his dishonesty to his employer exemplified by his efforts to cover up the reasons for his work absence, when accompanied by his arrest for criminal trespass and possession of drug paraphernalia, reasonably suggests his use of the paraphernalia for the consumption of illegal narcotics. Whether a mere allegation of possession of drug paraphernalia, standing alone, would support reasonable suspicion sufficient to justify employee drug-testing is not before us. In the present controversy, however, the undisputed facts sufficiently establish reasonable suspicion that Relford was probably using controlled substances. As such, the order of the Commission directing Relford to participate in the drug and alcohol abuse EAP does not constitute an unreasonable search for Fourth Amendment purposes.
There were some other administrative and judicial proceedings which seemed to help the employee's cause and made it clear that the employer was not totally without fault. However, one wonders if the employee was not ultimately sunk by the fact that when he did submit to a drug test, he tested positive for the use of unlawful drugs. Although not technically relevant to the decision, as an advocate you know it matters.

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