Can My Employer Make Me Take a Drug Test if My Job Does Not Affect the Safety of Others?
by: Helena Hall (Member, Alaska Bar Association Employment Law Section)
Generally yes, however, the answer will depend upon the type of employer you work for and the type of testing being done. There currently exists no state or federal law that limits drug testing by private employers to only safety sensitive positions. Additionally, there is a state statute AS 23.10.600-699 that allows employers to conduct drug tests of any or all of the employers employees as long as the testing is done in a manner that complies with the statute. The statue expressly permits employers to require employees to take drug or alcohol tests pre hire, post accident, where there is reasonable suspicion, and where necessary to maintain safety, productivity, the quality of products or services, security of property or information. To qualify for protection under this statute, the employer must have adopted a drug testing policy that complies with the statute and must have given employees at least 30 days notice of the drug testing program. Accordingly, if you are employed by a private employer and as long as your employer is complying with this statute, the employer can require that you take a drug or alcohol test.
On the other hand, public employers are more limited in what they can do. In 2001, the Alaska Supreme Court held that random drug testing of police officers and firefighters violated the Alaska Constitution's prohibition against unreasonable searches and seizures. After this case public employers most likely can only subject employees that fall under the Department of Transportation drug testing requirements to random drug testing. However, this same case concluded that the public employer could legally subject employees to drug testing upon application for employment, upon promotion, demotion or transfer, where there is reasonable suspicion or after a vehicular accident. Accordingly, if you are employed by a public employer and are not employed in a safety sensitive position your employer can not subject you to random drug testing but can legally adopt a drug testing program that includes these other types of drug testing.
Note: This material was prepared and submitted by Anchorage attorney Helena Hall of Perkins, Coie, LLP. Ms. Hall is a member of the Alaska Bar Association's Employment Law section.
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