Random drug testing is generally only permitted in California for employees in “safety-sensitive” positions. However, the law does not clearly define the term “safety-sensitive” and no court has provided a black and white test to determine whether an employee performs “safety-sensitive” work.
Many construction industry employers simply classify all field crew members as “safety sensitive” subject to random drug testing. But is this compliant with California law? As with all legal questions, it depends!
Highlights from the 1999 Decision in Smith v. Fresno Irrigation Dist.
The California Court of Appeal addressed this issue in 1999 in the case of Smith v. Fresno Irrigation Dist. (1999) 72 Cal.App.4th 147. In that case, the Fresno Irrigation District defined “safety-sensitive” employees as those holding positions “which as a normal course of business require the employee to operate District vehicles or heavy equipment or those positions in which the employee’s performance, reflexes, and/or judgment impact the safety of others.” Only positions which were more clerical in nature were found not to be safety sensitive. After adopting the policy, the District gave employees a six-month grace period before starting the random testing.
The plaintiff in Smith was a construction and maintenance worker who worked as part of a crew responsible for casting and placing pipes in a trench. His job duties also included constructing gates, pouring concrete, and weed and brush abatement. In performing these duties, he operated a jackhammer, skill saw, chain saw, chipper, roto-hammer, and sloper.
The Court of Appeal ultimately determined that the plaintiff’s position was “safety-sensitive.” In reaching this conclusion, the court relied upon the following factors:
- The “immediacy” of the threat of injury and the fact that a single misperformed duty could have irremediable consequences (i.e., where the employee is not able to rectify the mistake and the coworkers of the employee have no opportunity to intervene before harm occurs).
- Whether the employee operated “power tools”: the District presented evidence that it would be hazardous to operate power tools near other coworkers under the influence of drugs.
- Whether the employee operated heavy equipment: due to the nature of the work, there was always a possibility that heavy equipment could fall on its side and injure the operator or another member of the crew.
- Whether the employee worked in other dangerous circumstances: in this case, one of plaintiff’s duties involved crawling inside pipe underground. The court reasoned that, “Should a drug-impaired employee become claustrophobic or disoriented in the pipe, the hazards inherent in the job would spread to the employee’s coworkers and other persons called upon to rescue the disabled employee.” Even if the plaintiff was not the crew member crawling inside the pipe, if he was responsible for ensuring the safety of the crew member inside the pipe, being impaired could pose a significant risk to other crew members. Also, nearly all of the plaintiff’s work involved working near a trench and the possibility of falling inside the trench or dealing with a collapsing trench made the situation more dangerous.
The court in Smith also emphasized that, even if an employee is only faced with one of the above situations (for example, they work in a dangerous situation, but they don’t work with power tools or heavy equipment), this could also make the position “safety-sensitive.” For example, in American Federation of Labor v. Unemployment Ins. Appeals Bd. (1994) 23 Cal. App. 4th 51, the court determined that a housekeeping employee on an offshore oil drilling platform qualified as “safety-sensitive.” While a slip and fall in a kitchen or restaurant hotel might not endanger anyone but the worker, a similar accident on an oil platform could potentially endanger all of the workers given the potential for a grease fire.
What About Employees Who Drive or Whose Jobs Require “Sound Judgment?”
In addition to Smith, we can look to other decisions to supplement our understanding of what conduct courts deem “safety-sensitive.” In Loder v. City of Glendale (1994) 47 Cal.App.4th 592, the Court of Appeal determined that a blanket “safety-sensitive” classification for all employees who drive vehicles was erroneous. The court agreed with courts in other jurisdictions that, “When the employee’s duties require driving, such as the duties of one who patrols or makes pick-ups, that employee’s position is safety sensitive. When driving is only incidental to other duties that engage no safety concern, the employee’s position is not safety sensitive.” So, whether or not an employee drives a car for work is not determinative of whether the position is “safety-sensitive.”
Also, whether an employee must exercise “sound judgment” is not indicative of whether the position is “safety-sensitive.” In Loder, the court noted that no court has found that the ability to exercise sound judgment is sufficient to classify a position as “safety-sensitive” for purposes of random drug testing. In all cases, the immediacy of the harm that could result from impaired judgment is the key factor in determining whether a position qualifies as “safety-sensitive.” For example, in American Fed. of Gov. Emp. v. Derwinski (N.D.Cal. 1991) 777 F. Supp. 1493, the court determined that doctors and nurses hold “safety-sensitive” positions, while occupational health specialists do not.
Lessons Learned
So, how do employers determine whether a position is “safety-sensitive” for purposes of random drug testing? The technical test, as outlined in Loder and Smith, is the following:
Drug testing is valid only as to positions in which the regular duties involve some special and obvious physical or ethical demand and the compromise of the employee’s ability to meet such demands could have an immediate disastrous consequence upon public safety or security.
In particular, the “immediacy” of the threat of injury and the fact that a single misperformed duty could have irremediable consequences is paramount when determining whether a position is “safety-sensitive.”
What does this mean for employers, particularly in the construction industry where job duties vary significantly? A good rule of thumb is to ask the following:
- Does the employee operate power tools or heavy equipment in such a manner that a mistake could cause immediate and irremediable consequences for his coworkers or the public?
- Alternatively, does the employee work in a situation where making a mistake could cause immediate or irremediable harm to coworkers or the public?
While most field employees in the construction industry likely qualify as “safety-sensitive” under this test, there may be situations where this isn’t necessarily the case. For example, if an employee’s primary job duties involve clearing brush and debris and drug use would not harm anyone but the employee, the position likely does not qualify as “safety-sensitive.” Other examples can likely be found among employees who primarily work by themselves and whose misperformance of duties is unlikely to harm anyone but themselves.
When in doubt, Cook Brown is here to help! If you have specific questions about whether a particular position or classification qualifies as “safety-sensitive,” whether in construction or any other industry, reach out to your Cook Brown attorney today.
