Some states have laws that prohibit or limit the right of an employer to drug test its employees. Massachusetts does not have such a law, but the limits of employee drug testing have been established by the courts. The determinations are made on a case-by-case basis, but the decisions provide insight into what employers can and cannot do.
Drug testing is often seen as an invasion of employee privacy, but courts in Massachusetts have still allowed it in limited circumstances. The reasons for limiting but not eliminating the right of private employers to drug test their employees are obvious. Among them, employers want to have the opportunity to be sure drug use is not interfering with the work of the employee. Despite this concern of employers, courts have limited their ability to perform mandatory drug tests on employees. The courts have instituted a balancing test that weighs the invasion of privacy felt by the employer against the reasons for testing and the procedural protections offered by the employer in the event of testing. So long as the invasion of privacy is outweighed by the other two factors, the test is allowed.
The courts have also acknowledged several factors to be considered in the balancing process, such as: productivity problems among employees; advanced notice of the testing; suspected drug use; minimal invasion into employee’s privacy through various procedural protections, and safety reasons for testing.
What does this mean for Massachusetts employers? Employers must remember that they can drug test their employees, but only under certain circumstances. It is wise to adopt a policy that includes consideration of the various factors in the balancing test. Employers should then notify their employees or include this policy in their employee handbook.