State Labor Relations Agency Affirms That Employer Cannot Unilaterally Impose Drug Testing On Unionized Employees

Drug testing of Massachusetts public employees represented by a union can be accomplished only if after the employer provides notice and an opportunity to bargain about drug testing, and then bargains in good faith to impasse or resolution. A Hearing Officer of the Department of Labor Relations affirmed that settled principle in a decision issued earlier this summer, which is attached.

While some view drug testing of public employees as necessary and important, especially in public safety realms, this case reminds that Massachusetts law (as well as cases under the National Labor Relations Act) affirm that this drug testing can be imposed only after fulfilling obligations at the bargaining table. The alleged importance of drug testing in other words does not excuse bargaining obligations. A Massachusetts public employer adamant about drug testing must use reason and leverage, rather than righteousness, to seek a change.

Items to be negotiated include whether to have drug testing, the type of testing to have (e.g., random, post-accident, and/or suspicion-based), the type of specimen to be tested (e.g., urine, hair, blood, saliva, etc.), the consequences of testing (e.g., rehabilitation and/or discipline, and any compensation) and other procedural and substantive matters. Even after parties agree to drug testing, a substantive change in the process arguably can spark bargaining obligations (such as, a switch from urine to hair testing, or a significant increase in the number of employees subject to random testing).

An employer who violates its bargaining obligations on drug testing risks having any test and discipline tossed out by the state labor relations agency and/or an arbitrator.