What is the legality of drug testing in Colorado for a private sector employee?
The person that was drug tested has recently lost some of the weight since her second child birth 1 year ago. That in my opinion in the only "reasonable suspicion" that her employers may have had in mind when testing her. In addition, she is the only employee that her center manager has seen drug tested in 14 years of managing (it was her district manager that requested the drug test). Not only was she singled out, but she was tested into the bathroom at her place of employment. Both co-workers and customers may have been aware of the testing. She tested negative and is very upset about her reputation/job/fair treatment.
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Colorado does not appear to have any statutes on the books regarding employee drug testing in the private sector.
Generally, private sector employers have broad leeway in drug testing employees. The reason for this is that the Constitutional protections that would normally apply, such as the 4th Amendment protection of unreasonable search and seizure, do not apply when the actor is not the government or an agent of the government. Thus, any constitutional claim is most likely precluded when the test is done by a private sector employer.
That doesn't mean a common law tort claim or contract claim could be raised here. This would depend heavily on the facts, such as whether there was an employment contract that mentioned drug testing.
As always, a lawyer familiar with such issues in Colorado should be consulted.
According to the below-referenced eNotes link, Colorado has not enacted any employment drug or alcohol testing laws. However, the Colorado Supreme Court has upheld testing if the employee's supervisor had a reasonable suspicion that the employee was either using or was under the influence of illegal drugs or alcohol.
Private sector employers have far more latitude in their right to invade an employee's privacy than does a government (public sector) employer. Private employers are given broad discretion in personnel matters. Even if the alleged reasonable suspicion is far-fetched, it is likely within a private employer's rights to do the drug testing as they see fit. Perhaps one thing to explore whether this individual belongs to a Union which may have had rules in place which were violated here.
Reference the below links for more information. Good luck.
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