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Reviewed Date: May 31, 2017
Public health and safety--Drugs
Personnel--Health and safety--Drugs--Laws and regulations
Drug Testing of Board Members
MTAS was asked whether a city may require board members to submit to drug testing.
Knowledgebase-Drug Testing of Board Members
Re: Drug testing of board
You have advised me that the Board of Mayor and Aldermen wants to institute a policy requiring board members to submit to drug testing. I can find no authority for a municipality to enact such a policy.
It is my understanding that your city currently conducts random drug screening of municipal employees. I assume this policy has been enacted under the Drug Free Workplace Act T.C.A. § 50-9-101, et. seq., which authorizes random drug screening for general employees. A policy enacted under that statute may result in decreased workers’ compensation insurance premiums, if the policy is purchased from a private carrier. There is no requirement in Tennessee that municipalities adopt any drug testing policy.
Unless your city has adopted a policy under the Drug Free Workplace Act, random drug screening of general employees, who are not employed in safety sensitive positions, may be in violation of the Fourth Amendment. The U.S. Supreme Court has ruled that the government can impose a drug test on a nonsafety-sensitive employee only if it has: (1) a reasonable suspicion of drug use; and (2) the drug use occurs while on-duty. Chandler v. Miller, 520 U.S. 305, 117 S. Ct. 1295 (1997). Since the Tennessee Drug Free Workplace Act was passed in 1996, there has been no indication that a policy enacted by a municipality under the Act may be unconstitutional.
Drug screening of elected officials is a very different matter, and there is no legislation under which a municipality may enact a policy requiring such testing. The Drug Free Workplace Act only applies to employees. Absent specific enabling legislation, random drug screening is an unreasonable search under the Fourth Amendment of the U.S. Constitution. I therefore believe it would violate the constitutional rights of your board members to require drug testing.
Even if all members are in favor of requiring drug testing of board members, there are problems with instituting such a policy. Any board member who changes their mind, or who is elected subsequently, cannot legally be required to follow through with the testing requirement. There is also the problem of confidentiality of medical information which would apply to a drug test result.
What would the city do if a drug test of an elected official is positive? There is no caselaw which suggests that a positive drug test could be the basis for an ouster suit. If adopted as a city policy, the city will be required to enforce and defend the policy. In my opinion, absent statutory authority the city will lose any legal challenge brought against such a policy.
I hope this information is helpful. Please feel free to contact me if you have any questions or need more assistance with this matter.
Thank you for consulting with MTAS.
Melissa A. Ashburn