Drug Testing Drivers, Quirky Question # 8

Quirky Question # 8:

We provide a number of our sales employees with company automobiles.  We were wondering whether we could randomly test these individuals for alcohol or drug use.  Needless to point out, we would like to ensure that employees driving our company vehicles do not endanger either themselves or members of the public.

Dorsey’s Analysis:

You pose a good question. Like so much of employment law, your question illustrates the tension between competing societal interests. Here, the tension exists between employees’ rights to privacy and public safety.

States have different drug testing statutes, so the answer to your question is state-dependent. Since I practice out of Minneapolis, I’ll answer your question with reference to the applicable laws in Minnesota. The relevant Minnesota statute is the Minnesota Drug and Alcohol Testing in the Workplace Act. Under the statute, an employer is allowed to conduct random drug tests for employees who occupy “safety sensitive” positions. “Safety sensitive” positions are defined as those jobs in which “impairment caused by drug or alcohol use would threaten the health and safety of any person.” See Minn. Stat. § 181.950, subd. 13. Another way to frame your question, therefore, is to inquire: “Does a job that involves driving a company automobile fall within the definition of a “safety sensitive” position, such that your firm would be justified in engaging in random drug testing?”

There is not a great deal of case law in Minnesota defining precisely which positions are, or are not, “safety sensitive” positions. The courts have found that jail personnel, patrol officers, investigators, and court security deputies all occupied “safety sensitive” positions. Similarly, workers involved in the maintenance of railway lines have been held to occupy “safety sensitive” positions. In contrast, workers involved in loading, unloading and cleaning commercial aircraft have been held not to occupy “safety sensitive” positions, a fact that may cause some unease among airline passengers.

I am not aware of any Minnesota cases addressing the issue of whether driving a company vehicle involves a “safety sensitive” position. Some insights, however, can be obtained from parallel federal law. In the federal context, and the public employer arena, drug testing is considered a “search” within the meaning of the Fourth Amendment. Random drug testing has been deemed permissible only where it serves “special governmental needs . . ..” National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989). The nation’s highest court has held that “special needs” exist where an employee works in a “safety sensitive” position. In deciding whether an employee occupies a “safety sensitive” position, courts have been directed to consider whether the employee’s duties are “fraught with such risks to others that even a momentary lapse of attention [could] have disastrous consequences.” Skinner v. Railway Labor Exec. Ass’n, 489 U.S. 602, 628 (1989).

Applying these standards, federal courts have found that the following positions are “safety sensitive” such that random drug testing should be permitted: a) air traffic controllers; b) aircraft maintenance personnel; c) railroad safety inspectors; d) highway and motor carrier safety specialists; e) lock and dam operators; f) heavy equipment operators (e.g., forklift, tractor and crane operators). However, federal courts have held that Department of Energy employees whose jobs included driving cars and vans containing documents and Department of Agriculture employees whose jobs included driving shuttle buses, mail vans, and cars, did not occupy “safety sensitive” positions.

Based on this analogous federal case law, it would appear that someone whose job responsibilities involve driving a company vehicle does not occupy a “safety sensitive” position that would subject that person to random drug testing. In my view, that analysis may be misguided. Certainly, someone behind the wheel of a 6000 pound SUV going 70 mph is engaged in an activity where “even a momentary lapse of attention [could] have disastrous consequences.” Moreover, I’d wager that someone driving an SUV traveling at 70 mph is a bit more dangerous to the general public than a forklift operator driving around a warehouse at 3 mph.

According to the U.S. Secretary of Transportation, there were approximately 43,000 automobile deaths on American highways, both in 2005 and 2006. Here in Minnesota, just two days after I posted QQ # 8, the Star Tribune reported on a tragic situation involving a van driver for the Forest Lake Area School District who caused a crash that killed his passenger, a 14-year-old student, and himself. Exacerbating the tragedy, as reported by the Star Tribune, the driver had marijuana in his system, and additional marijuana was found in the van. See, Student’s Driver Had Drugs In, With Him, Star Tribune, November 14, 2007, p. A-1. Both the national statistics and this recent, profoundly sad story here in Minnesota, suggest that it is time for state legislatures to re-examine the balance between employee privacy and public safety. In my view, companies providing employees with company vehicles should be permitted to randomly drug test these individuals. (Keep in mind that it will be the companies that are sued if there is an accident involving a serious injury or fatality.) But, that is not the current state of the law, and therefore, random drug testing would seem ill-advised.