11.3 Drug and Alcohol Testing

Workers frequently lose their jobs due to employers’ fondness for this tool, which side-steps the question of performance. While in most cases employees cannot be forced to pay for testing themselves,1  there is no general state law preventing private employers from testing, and some occupations are covered by laws that affirmatively allow or require it. However, there are certain standards and procedures for employer drug testing, including employees’ right of access to records relating to positive drug test results.2  Whether your client has any legal recourse in the face of a supposed positive test result depends on the position, the employer, and other circumstances. Depending on the type of alleged substance, your client may have time to get independent testing done by a more reputable lab, which might persuade an employer that the first result was flawed. Employees have a very limited cause of action in tort against employers and testing entities for wrongful disclosure of test results.3

Clients working for the government or a private employer acting for the government may have some constitutional protection as well. Drug or alcohol testing is considered a search and seizure covered by the Fourth Amendment to the U.S. Constitution (and its state counterpart).4  Testing must be supported by individualized “reasonable suspicion” unless the employee is in a position of “special needs” such as law enforcement or “safety-sensitive” positions such as railroad workers.5

• 1La. R.S. 23:897.
• 2La. R.S. 49:1001, et seq.
• 3La. R.S. 49:1012.
• 4Skinner v. Ry. Lab. Execs. Ass’n, 489 U.S. 602 (1989); Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989).
• 5Skinner, 489 U.S. 602; see Chandler v. Miller, 520 U.S. 305 (1997); United Teachers of New Orleans v. Orleans Par. Sch. Bd., 142 F.3d 853 (5th Cir. 1998).