法律英语：18 Drug Screening by Employers

by Michael W. Flynn

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed¹ to practice in your jurisdiction². Further, I do not intend to create an attorney-client relationship with any listener.   

Today’s episode touches on two topics: international law, and the legality of employers conducting drug tests on prospective³ and current employees. An anonymous⁴ caller asked:

 

I’ve noticed that in some areas of the world, like Amsterdam, drugs that are not legal in the U.S. seem to be fine, and people are not arrested for use of certain quantities. So, is it illegal for an American citizen to use drugs abroad that are legal in that country? The reason I am asking is that many employers for new job applicants⁶ screen for the use of drugs assuming that they are illegal. Well, what if they are legal where you took them?

Amsterdam: a beautiful city of canals, the Anne Frank Haus, the Van Gogh museum, legal prostitution, and readily available drugs such as marijuana and hallucinogenic mushrooms. Some tourists love the Netherlands for its relatively⁷ permissive stance on drugs, while others abhor⁸ it.

The short answer to the first question is that you are subject to the laws of a foreign country when you visit. With regard to drug testing, an employer generally has the right to screen applicants, and an employer has a more limited right to test its current employees.    

First, our caller asked whether an American citizen, while in a foreign country, may use drugs that are legal in that country, but illegal in the United States. The answer is that you must generally obey all laws of the jurisdiction you are visiting. So, assuming marijuana is legal in the Netherlands, then you are free to get as stoned as you want, and the United States government cannot prosecute⁹ you. The doctrine¹⁰ works the other way as well. That is, if something is legal in the U.S., but illegal in a foreign country, you are prohibited from that act while visiting the foreign country. You must also submit to the foreign country’s criminal justice system for any violations¹¹. For example, an American teenager, Michael Fay, was caned¹² in Singapore in 1994 after suffering a conviction for vandalism. Mr. Fay was subject to Singapore law and the Singapore justice system while present in the country, regardless of his country of origin. 

Next, let’s turn to the issue of drug testing in the workplace. In response to the perceived problem of alcohol and other drug use, many employers have implemented¹³ drug testing. There are two main grounds on which courts have struck down drug-testing policies: the Fourth Amendment¹⁴, and privacy concerns. The Fourth Amendment only applies to government employers, and privacy concerns apply to both private and government employers.

Both the Fourth Amendment and state privacy laws protect you from unreasonable¹⁵ searches or intrusions of your body. To determine whether a search is reasonable, a court weighs the employer’s need to ensure that its employees perform their jobs safely against the employee’s reasonable expectation of privacy.

With regard to the employer’s need for a safe work environment, the most important factor is the industry. A fire or police department has a very strong need to ensure that its employees are able to perform their risky¹⁶ tasks free from impairment caused by drugs. So, a drug testing policy for these types of employees is more likely to be upheld. By contrast, the Washington Supreme¹⁷ Court struck down a drug-testing policy for people who worked in fields where safety was not an issue, such as desk jobs.

The other side of the analysis is the employee’s expectation of privacy, and how intrusive¹⁸ the search is. First, it is important to note that you generally do not have a very strong legal expectation of privacy with respect to drugs you use that are illegal in this country. Most courts have upheld drug-testing policies where the drug testing was part of a screening process that all applicants had to undergo. This is because the applicant⁵ should expect an employer to check up on him – with regard to his resume, his references, and his illegal drug use. With respect to current employees, courts have generally held that a drug test is not intrusive if the employee was told that such drug tests might be given. But, when an employer surprises its employees with random¹⁹ drug tests, then a court is more likely to find that the tests violate privacy rights because the employee reasonably expects to remain free from such testing.

Of course, if an employer has a good reason to believe that you are on drugs due to excessive tardiness²⁰, glassy eyes, dazed looks, etc., then the employer generally has the right to demand that you submit to a drug test.

All of these privacy concerns vary greatly from state to state because each state has its own unique privacy jurisprudence. To summarize, you generally cannot successfully challenge a pre-employment drug test. You must take the test if you wish to be considered for employment, regardless of whether you used the drug legally in Amsterdam or not. You are more likely to succeed in a protest against drug testing if your employer subjects you to random drug tests after you are employed, and where you do not work in an industry that implicates²¹ public safety.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful²² Life. 

You can send questions and comments to。。。or call them in to the voicemail line at 206-202-4LAW.  Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

 

1 licensed   

adj.得到许可的v.许可，颁发执照(license的过去式和过去分词)

参考例句：

• The new drug has not yet been licensed in the US. 这种新药尚未在美国获得许可。
• Is that gun licensed? 那支枪有持枪执照吗？

2 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

3 prospective   

adj.预期的，未来的，前瞻性的

参考例句：

• The story should act as a warning to other prospective buyers.这篇报道应该对其他潜在的购买者起到警示作用。
• They have all these great activities for prospective freshmen.这会举办各种各样的活动来招待未来的新人。

4 anonymous   

adj.无名的；匿名的；无特色的

参考例句：

• Sending anonymous letters is a cowardly act.寄匿名信是懦夫的行为。
• The author wishes to remain anonymous.作者希望姓名不公开。

5 applicant   

n.申请人，求职者，请求者

参考例句：

• He was the hundredth applicant for the job. 他是第100个申请这项工作的人。
• In my estimation, the applicant is well qualified for this job. 据我看, 这位应征者完全具备这项工作的条件。

6 applicants   

申请人，求职人( applicant的名词复数 )

参考例句：

• There were over 500 applicants for the job. 有500多人申请这份工作。
• He was impressed by the high calibre of applicants for the job. 求职人员出色的能力给他留下了深刻印象。

7 relatively   

adv.比较...地，相对地

参考例句：

• The rabbit is a relatively recent introduction in Australia.兔子是相对较新引入澳大利亚的物种。
• The operation was relatively painless.手术相对来说不痛。

8 abhor   

v.憎恶；痛恨

参考例句：

• They abhor all forms of racial discrimination.他们憎恶任何形式的种族歧视。
• They abhor all the nations who have different ideology and regime.他们仇视所有意识形态和制度与他们不同的国家。

9 prosecute   

vt.告发；进行；vi.告发，起诉，作检察官

参考例句：

• I am trying my best to prosecute my duties.我正在尽力履行我的职责。
• Is there enough evidence to prosecute?有没有起诉的足够证据？

10 doctrine   

n.教义；主义；学说

参考例句：

• He was impelled to proclaim his doctrine.他不得不宣扬他的教义。
• The council met to consider changes to doctrine.宗教议会开会考虑更改教义。

11 violations   

违反( violation的名词复数 )； 冒犯； 违反（行为、事例）； 强奸

参考例句：

• This is one of the commonest traffic violations. 这是常见的违反交通规则之例。
• These violations of the code must cease forthwith. 这些违犯法规的行为必须立即停止。

12 caned   

vt.用苔杖打（cane的过去式与过去分词形式）

参考例句：

• The gaoler caned the man. 狱卒用藤条鞭打这个人。 来自《简明英汉词典》
• I have caned my son when necessary. 必要时，我就用藤条打儿子一顿。 来自辞典例句

13 implemented   

v.实现( implement的过去式和过去分词 )；执行；贯彻；使生效

参考例句：

• This agreement, if not implemented, is a mere scrap of paper. 这个协定如不执行只不过是一纸空文。 来自《现代汉英综合大词典》
• The economy is in danger of collapse unless far-reaching reforms are implemented. 如果不实施影响深远的改革，经济就面临崩溃的危险。 来自辞典例句

14 amendment   

n.改正，修正，改善，修正案

参考例句：

• The amendment was rejected by 207 voters to 143.这项修正案以207票对143票被否决。
• The Opposition has tabled an amendment to the bill.反对党已经就该议案提交了一项修正条款。

15 unreasonable   

adj.不讲道理的，不合情理的，过度的

参考例句：

• I know that they made the most unreasonable demands on you.我知道他们对你提出了最不合理的要求。
• They spend an unreasonable amount of money on clothes.他们花在衣服上的钱太多了。

16 risky   

adj.有风险的，冒险的

参考例句：

• It may be risky but we will chance it anyhow.这可能有危险，但我们无论如何要冒一冒险。
• He is well aware how risky this investment is.他心里对这项投资的风险十分清楚。

17 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

18 intrusive   

adj.打搅的；侵扰的

参考例句：

• The cameras were not an intrusive presence.那些摄像机的存在并不令人反感。
• Staffs are courteous but never intrusive.员工谦恭有礼却从不让人感到唐突。

19 random   

adj.随机的；任意的；n.偶然的(或随便的)行动

参考例句：

• The list is arranged in a random order.名单排列不分先后。
• On random inspection the meat was found to be bad.经抽查，发现肉变质了。

20 tardiness   

n.缓慢；迟延；拖拉

参考例句：

• Her teacher gave her extra homework because of her tardiness. 由于她的迟到，老师给她布置了额外的家庭作业。 来自辞典例句
• Someone said that tardiness is the subtlest form of selflove and conceit. 有人说迟到是自私和自负的最微妙的表现形式。 来自辞典例句

21 implicates   

n.牵涉，涉及（某人）( implicate的名词复数 )；表明（或意指）…是起因

参考例句：

• This confession implicates numerous officials in the bribery scandal. 这一供认会使许多官员牵连到受贿的丑事中。 来自辞典例句
• Did you tell him that the recording implicates President Logan in Palmer's assassination? 你有没有告诉他录音显示洛根总统跟帕尔默被杀有关？ 来自电影对白

22 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。