Q & A

Written on 01/05/2023

From Illinois:
Question: Several years ago the City bargained for random drug testing of police officers. The contract states: “Employees covered by this Agreement shall be subject to random drug testing, so long as all sworn Department members are subject to the same such testing.” This is where the problem begins. The Police Department’s command staff is non-union and is subject to the City’s Personnel Code.

The City’s Personnel Code only allows drug testing of employees when reasonable suspicion exists that an employee is impaired due to the influence of a drug or alcohol while on duty. Refusal to take a test is considered a re­fusal of a direct order and can lead to termination. The policy further states that when an employee is ordered to test, the City will provide the employee with reason for the order and provide it in writing. This has never happened.

The command staff is being subjected to random drug testing because a failure to test all sworn officers will not allow the city to test the officers in the union. Non-union officers are provided with a testing letter that cites the union contract that they are not members of when given an order to take a test. This continued for several years, until the command staff spoke up. During a sit down with the human resources director and the City Attorney, a command staff officer was passively threatened to have benefits taken away and told there was a federal law that allowed the City to randomly drug test police officers. A copy of the federal law was requested months ago and despite reminders, it still has not been provided.

I have located an Illinois state law that allows a City to conduct random drugs tests, but it must test everyone. I have not located any federal law that allows for the random drug testing of local police officers. I did locate one that covers federal officers such as the Secret Service.

The basis of the complaint by the command officers is not that they have any concerns taking a drug test, it has to do with being treated fairly and not allowing the City to violate its own policy.

Is there a federal law that allows for the random drug testing of local police officers? If there is, then why would a City bargain for it instead of just implementing it?

Answer: There is no federal law that either mandates or prohibits random drug testing of state, city, and county law enforcement employees. Under state collective bargaining laws, though, random drug testing is very likely a “mandatory subject of bargaining,” something the employer cannot unilaterally implement but must instead negotiate with the union.

Now as to why your employer would bargain for random drug testing and not use it, I can only hazard a guess. There’s a fair amount of evidence that trained supervisors are much better at identifying possible drug use than random testing programs. And, of course, supervisory involvement would be cheaper than drug testing as the supervisors are already on staff. In addition, many police officers dislike the inconvenience and intrusion posed by random drug testing. It could be that some or all of these factors are at work in your employer’s case.

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