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Restricted Expenditures — Employee Testing
Drug Testing

A state agency may not pay for a drug testing program of any kind, unless:

  • The program does not violate the prohibition against unreasonable searches in the Fourth Amendment of the United States Constitution,
  • The program does not violate the privacy rights of employees under the Texas Constitution, and
  • The agency has specific or implied statutory authority for the program.

Drug testing programs must be evaluated for compliance with the above requirements on a program-by-program basis. The fact a particular drug testing program complies with those requirements does not necessarily mean similar drug testing programs comply.

The attorney general has said his formal opinion process cannot determine if a particular drug testing program complies with all legal requirements. This is because the determination requires the resolution of numerous fact questions. The attorney general recommends a state agency make formal findings on whether a proposed drug testing program complies with United States and Texas constitutional requirements before implementing the program.

Sources [+]

Chandler v. Miller, Governor of Georgia, 117 S.Ct. 1295 (1997); Vernonia School District 47J v. Acton, 515 U.S. 646 (1995); National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989); Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602 (1989); Texas State Employees Union v. Texas Dep’t of Mental Health & Mental Retardation, 746 S.W.2d 203 (Tex. 1987); Opinion of the Texas Attorney General Nos. DM-121 (1992), JM-1274 (1990). See Ferguson v. City of Charleston, 532 U.S. 67 (2001).

Federally-required drug testing of state employees

Federal laws or regulations might require a state agency to sponsor a drug testing program. The requirement could be imposed as a mandatory obligation or as a precondition for the agency or the state to receive federal funds or other benefits.

If federal law attaches drug testing as a precondition, only the Texas Legislature has the authority to authorize the agency to comply. If federal law requires drug testing as a mandatory obligation, the agency must comply with or without legislative authorization.

Sources [+]

Drug-Free Workplace Act of 1988, 41 U.S.C.S. Section 702 (Law. Co-op. LEXIS through Pub. L. No. 108-98, approved Dec. 19, 2003 (with a gap of Pub. L. No. 108-173)); Santiago v. Greyhound Lines, Inc., 956 F.Supp. 144, 152 (N.D. N.Y. 1997); Parker v. Atlanta Gas Light Co., 818 F.Supp. 345, 347 (S.D. Ga. 1993); Mares v. Conagra Poultry Co., 773 F.Supp. 248, 254 (D. Colo. 1991), aff’d, 971 F.2d 492 (10th Cir. 1992).

Documentation Requirements [+]

The following Documentation Requirements apply only when a state agency’s drug testing program is subject to the requirements described in this subsection:

  1. If the agency must have Texas statutory authority to comply with a federal law requiring the agency to sponsor a drug testing program, the agency must retain documentation in its files that cites the authority.
  2. The agency must retain documentation in its files that cites the federal law or regulation requiring the agency to sponsor the drug testing program.
  3. The agency must retain documentation in its files that contains the following statement:

    “The drug testing program for which this voucher requests a payment is required by federal law and does not contain any requirements or features that federal law does not require.”

  4. If the drug testing program requires state employees to submit to drug testing as a term or condition of employment, then the agency must retain documentation in its files that contains the following additional statement:

    “The drug tests serve special governmental needs beyond the normal need for law enforcement. The special governmental needs are (fill in the blank). After balancing the agency’s interests against the infringement on employee’s reasonable privacy expectations, the agency has determined it is impractical to require a warrant or probable cause before the drug tests occur.”