Reviewed Date: 11/25/2021
Based on rulings by the U.S. Supreme Court, the Sixth Circuit Court of Appeals, lower courts, and the Tennessee Attorney General, it is clear that a drug and alcohol testing policy requiring the testing of all city employee is unconstitutional. The U.S. Supreme Court ruled that drug and alcohol testing of public employees constitutes a warrantless search prohibited by the Fourth Amendment of the U.S. Constitution.
Many municipalities have adopted regulations that provide for drug and alcohol testing of their employees. In order to test government employees for drugs and alcohol, however, the government must show a special need (safety-sensitivity) exists which warrants such an invasion of an employee's privacy.
The testing of some municipal employees is required under the Omnibus Transportation Employee Testing Act of 1991. Cities must conduct pre-employment, reasonable suspicion, random, return-to-duty, and follow-up drug and alcohol testing on city employees who are required to obtain a commercial driver’s license and who drive:
- vehicles with a gross weight of more than 26,000 pounds;
- trailers with a gross weight of more than 10,000 pounds;
- vehicles designed to transport more than 15 passengers, including the driver; or
- any vehicle with placards that hauls hazardous materials.
The definition of "driver" of commercial motor vehicles (CMV) includes regular and part-time employees, occasional drivers, leased drivers, and independent contractors. Emergency vehicle drivers are exempt.
Similar testing requirements apply to certain gas utility employees. 49 U.S.C.A. § 31306; 49 C.F.R. Part 40, 199, 382. T.C.A. §§ 55-50-401, et seq.
In 1996, Tennessee adopted the Drug-Free Workplace Programs Act (DFWPA). This authorizes, but does not require, employers in Tennessee to adopt drug and alcohol testing programs that conform to the DFWPA and to rules adopted by the Tennessee Department of Labor in accordance with that act. T.C.A. §§ 50-9-101, et seq.; Rules of the Department of Labor, Division of Workers’ Compensation, Chapter 0800-2-12, Drug-Free Workplace Programs. Employers who adopt such programs are eligible for reduced workers’ compensation premiums. The TML Risk Management Pool, which provides worker's compensation insurance for many Tennessee municipalities, views the drug free workplace designation as one of the many factors considered when setting premium amounts shared to local government employers.
In addition, where an employee is injured in the course of his or her employment and tests positive for certain drugs at a prescribed level, a rebuttable presumption is created that the injury was occasioned primarily by the presence of the drug or drugs. Such a worker may be disciplined up to and including termination and forfeits his or her eligibility for workers’ compensation medical and indemnity benefits.
In addition to requiring, and in some instances permitting, certain drug tests of employees under prescribed circumstances, the DFWPA requires employers to perform pre-employment drug testing of all job applicants. But it expressly provides that "for public employees, such testing shall be limited to the extent permitted by the Tennessee and federal constitutions." T.C.A. § 50-9-104(a).
Both the DFWPA and the Department of Labor Rules provide in detail:
- The purpose, scope, and policies reflected in the DFWPA and the tests implemented under the Drug-Free Workplace Program;
- Definitions that apply to the interpretation and application of the DFWPA;
- The contents of the notice and policy statement required to be provided by the employer to employees and job applicants prior to drug and alcohol testing;
- The types of testing allowed and required (job applicant testing, routine fitness-for-duty testing, follow-up testing, and post-accident testing);
- The consequences to the employee or applicant for refusing to test;
- The test itself;
- Drug and alcohol sample collection procedures;
- Procedures for reporting and reviewing test results;
- Employee protections;
- Substance abuse education and awareness requirements;
- Confidentiality of information and documents gathered in drug and alcohol testing programs including the tests; and
- The employer’s application form to the Workers’ Compensation Division of the Department of Labor to adopt the Drug-Free Workplace Program.
Drug and alcohol testing covered by the DFWPA appears to include the testing of city employees according to procedures required under federal laws and regulations. MTAS has developed a model drug testing policy for municipalities. This model policy may be obtained from an MTAS management consultant. A copy of the TN Drug Free Workplace's Employers Program Development and Implementation Guide can be found at https://www.tn.gov/content/dam/tn/workforce/documents/injuries/Employer%20Implementation%20Guide.pdf.
Criminal Background Checks
Cities may require potential employees to agree to release criminal background information to the city, to supply a fingerprint sample, and to submit to a criminal records check by the TBI and the FBI. Costs of the background check must be paid by the city but may be passed on to the successful applicant. The city may designate job titles or classifications to which this would apply. However, these classifications should not supersede any state requirements for a particular job (T.C.A. § 6-54-129). Another provision of law allows criminal background checks on applicants for a job as emergency medical technician or paramedic. T.C.A. § 68-140-325. In addition, T.C.A. § 68-11-234 allows criminal background checks for child care center employees.
T.C.A. § 68-102-308 allows municipalities to require criminal background checks on applicants, current employees or volunteers in firefighting positions. The employer must have a policy on when background checks can be done on existing employees and volunteers. Additionally, criminal background checks can fall under the conditions set out under the Fair Credit Reporting Act and the Equal Employment Opportunities Act.
Any background information that you receive must not be used to discriminate in violation of federal law. That means that employers should:
- Apply the same standards to everyone, regardless of their race, national origin, color, gender, religion, disability, genetic information or age.
- Take special care when basing employment decision on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older.
- Be prepared to make exceptions for problems revealed that were caused by a disability.
Find out more about using arrest and conviction records to make employment decisions in the Questions and Answers the EEOC's Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII at www.eeoc.gov/laws/guidance/ga_arrest_conviction.cfm and the EEOC Enforcement Guidance.