Drug Testing in Arizona - Sacks Tierney, PA, Attorneys - Scottsdale Arizona Law Firm providing legal services in real estate, business and corporate law, construction, employment, family law, immigration and civil litigation

EMPLOYMENT LAW

January 2004

Update: Drug Testing in Arizona

The Arizona Supreme Court's decision in Peterson v. City of Mesa injects just a little more uncertainty into your business practices

Sharon S. Moyer

Question: May Arizona employers conduct random, suspicionless employee drug testing?

As of January 2004, the correct answer is "maybe." It depends on whether your employer is public or private. It also depends on whether the Arizona courts decide to expand the concept of "privacy" in the state constitution. You have the Arizona Supreme Court's decision in Peterson v. City of Mesa to thank for injecting just a little more uncertainty into your business practices.

The case arose as a result of a typical drug testing policy. Mr. Petersen is a firefighter with the City of Mesa. Pursuant to the City's substance abuse program, drug testing could be performed "on an unannounced and random basis spread reasonably throughout the calendar year." A computer program selected the firefighters to be tested. Firefighters were required to travel to the laboratory and use private bathroom stalls to provide urine samples. The opinion does not tell whether Mr. Petersen was tested under the random testing component of the policy or the results of any drug testing. Mr. Petersen questioned the validity of the policy and filed an action in Maricopa County Superior Court, asking that Court to declare that the random testing component is unconstitutional under the Arizona and United States constitutions.

The Court analyzed the issue by examining the employee's reasonable expectation of privacy, which was acknowledged to be reduced for a firefighter position. The Court balanced that right to privacy against the City's need to protect other firefighters and the public from the dangers of firefighters who use drugs. The Court found that the right to privacy outweighed the City's need, largely because the City did not come forward with evidence that there was a significant drug problem among firefighters. The Court also found it compelling that there were other testing mechanisms the City used (e.g., reasonable suspicion and post-accident testing) that were not so obtrusive.

The Court granted Mr. Petersen's request, finding that random, suspicionless testing of government employees invades reasonable privacy interests even if the government collects the sample in an unobtrusive manner, and the Court ordered the City to cease such testing.

Implications for Private Employers. On the surface, this case seems to have no impact on the drug testing policies of private employers, since the analysis on privacy issues is very different for private versus governmental employers. Governmental employers have to justify the random testing as a reasonable search under the Fourth Amendment of the U.S. Constitution. The Fourth Amendment does not apply to private employers.

The right to privacy in Arizona's Constitution does, on the other hand, apply to private employers. So far, that right to privacy has been determined to permit random testing; that is clear from Arizona's Drug Testing statute. The concern is that the Court in Petersen stated that the right to privacy in the Arizona constitution might well be broader than the right to privacy under the Fourth Amendment to the U.S. constitution. Is the Petersen case an opening for employees of private employers to argue that the random testing component is unconstitutional under Arizona's Constitution? Yes it is.

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