Are Tennessee's voluntary drug-free workplace drug-testing rules constitutional, and can Tennessee still test for marijuana even though other states have legalized it?

Subject

Opinion No. 14-52, Drug-Free-Workplace Programs, April 24, 2014

Plain-English summary

Representative Antonio Parkinson asked three questions about Tennessee's drug-free workplace programs in Tenn. Code Ann. §§ 50-9-101 to -114: (1) are they constitutional, (2) does testing unfairly punish past drug use rather than current impairment, and (3) given that other states have legalized marijuana, does drug testing for marijuana violate a Tennessee employee's Privileges and Immunities Clause rights?

The AG said the statutes are constitutional, the unfairness question is a policy matter for the General Assembly, and the Privileges and Immunities Clause does not compel Tennessee to conform its testing policy to other states' marijuana laws.

The constitutional question turned on the voluntary nature of the program and its self-imposed limits. Employers do not have to participate (Tenn. Code Ann. § 50-9-101(b); § 50-9-103(5)). Those that do receive workers' compensation incentives: premium discounts, a shifted burden in workers' comp disputes, and the ability to deny medical and indemnity benefits if statutory rules are followed (§ 50-9-104(a)(1)-(3)). Drug testing is allowed only "[t]o the extent permitted by law" (§ 50-9-106(a)). Because the constitutions are the supreme law (Peay v. Nolan; Marbury v. Madison), the program's testing is by its own terms cabined to constitutional limits. Any constitutional violation by an employer would also violate the statute.

The unfairness question (whether positive-test penalties are too harsh given that they detect past use rather than current impairment) is not a constitutional defect. The statute states its purpose: promote drug-free workplaces, enhance productivity, discourage drug and alcohol abuse, hold employees accountable for engaging in drug or alcohol abuse (§ 50-9-101(a)). Whether that calibration is fair is a question for the General Assembly's policy judgment (Smith v. Gore; Hodge v. Craig).

The Privileges and Immunities Clause analysis turned on its purpose. The Clause prevents discrimination against citizens of other states visiting a state (Paul v. Virginia; Saenz v. Roe). It does not import other states' laws into the destination state (Califano v. Gautier Torres). Tennessee's drug-testing rules apply equally to citizens and visitors employed in drug-free workplaces, so there is no discrimination. The Clause's separate right-to-travel component (Saenz; Soto-Lopez) protects free interstate movement; cases that struck down state laws under it (Guest, Edwards, Crandall) involved direct restrictions on crossing borders. Drug testing in employment does not impair interstate movement.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Are Tennessee employers required to drug-test their employees?

No. The drug-free workplace program in §§ 50-9-101 to -114 is voluntary. Employers can choose whether to qualify as a "covered employer" by maintaining a compliant program. Those that do get specific workers' compensation incentives; those that do not are unaffected by the chapter.

What do employers get for participating?

A workers' compensation premium discount, a burden shift in workers' comp disputes (the employer's position becomes the presumption in disputes over whether intoxication contributed to a workplace injury), and the ability to deny workers' compensation medical and indemnity benefits where the program's statutory rules are followed.

Why isn't drug testing itself a constitutional issue?

It can be. The statute does not authorize unconstitutional testing; it limits testing to "the extent permitted by law" (§ 50-9-106(a)). Where constitutional doctrine forbids a particular testing method (for example, suspicionless testing of certain government employees outside narrow safety-sensitive contexts), the statute does not override that. The AG's point is that the program does not authorize anything the constitutions forbid.

Is detecting past use rather than current impairment fair?

That is a policy critique, not a constitutional defect. Most drug-of-abuse panels detect metabolites that can persist after impairment ends. Whether the legislature should rewrite the program to focus on impairment (for example, with reasonable-suspicion thresholds in § 50-9-103(15)) is a question for the General Assembly.

Does the Privileges and Immunities Clause force Tennessee to honor other states' marijuana legalization?

No. The Clause prevents states from discriminating against citizens of other states; it does not export one state's law to another. A Tennessee employer applying Tennessee law to an employee, citizen or not, is not discriminating against the employee's citizenship. The U.S. Supreme Court has rejected the argument that a visitor can invoke home-state law as a corollary of the right to travel (Califano).

What about the constitutional right to travel?

It protects free movement between states. Cases that struck down state laws under it (United States v. Guest, Edwards v. California, Crandall v. Nevada) involved direct interference with crossing state borders. Drug testing in the employment context does not stop anyone from entering or leaving a state.

Can a public-sector employer in Tennessee drug-test under § 50-9?

The opinion does not distinguish public and private employers. Public-sector drug testing is subject to additional Fourth Amendment analysis under federal cases like Skinner v. Railway Labor Executives' Ass'n. The "[t]o the extent permitted by law" clause in § 50-9-106(a) cabins state-employer testing to those constitutional limits.

Background and statutory framework

Tennessee's drug-free workplace program was modeled on similar Florida and other state schemes from the 1990s. The basic deal: an employer who follows a detailed protocol (notice to employees, drug-testing methods, MRO review, treatment options, etc.) gets workers' comp benefits in exchange. Tenn. Code Ann. §§ 50-9-101 to -114 set out the framework.

The constitutional saving clause is § 50-9-106(a), which limits testing to what the state and federal constitutions permit. That clause does substantial doctrinal work: it prevents the statute from authorizing anything the constitutions forbid, and it converts any constitutional violation by an employer into a statutory violation as well. The combination makes a facial constitutional challenge to the statute itself difficult; challenges typically have to focus on a specific employer's testing program.

The Privileges and Immunities Clause analysis follows long-settled doctrine. The Clause protects against discrimination against out-of-staters; it does not require a state to apply foreign law. The right-to-travel component, which the U.S. Supreme Court has located in various constitutional provisions over time, protects interstate movement and the migration of new residents, not the import of laws from one state to another.

Citations

• Tenn. Code Ann. §§ 50-9-101 to -114 (Tennessee Drug-Free Workplace Programs Act)
• Tenn. Code Ann. § 50-9-101(a) (purpose: promote drug-free workplaces, enhance productivity, discourage abuse)
• Tenn. Code Ann. § 50-9-101(b) (program is voluntary "[i]f an employer implements")
• Tenn. Code Ann. § 50-9-103(5) (definition of covered employer)
• Tenn. Code Ann. § 50-9-103(15) (reasonable-suspicion drug testing criteria)
• Tenn. Code Ann. § 50-9-104(a) (workers' compensation benefits for participating employers)
• Tenn. Code Ann. § 50-9-106(a) (testing limited "to the extent permitted by law")
• U.S. Const. art. IV, § 2, cl. 1 (Privileges and Immunities Clause)
• Peay v. Nolan, 7 S.W.2d 815 (Tenn. 1928) (Tennessee Supreme Court; constitution is supreme law)
• Marbury v. Madison, 5 U.S. 137 (1803) (U.S. Supreme Court; constitution is supreme law)
• Smith v. Gore, 728 S.W.2d 738 (Tenn. 1987) (Tennessee Supreme Court; legislative policy prerogative)
• Hodge v. Craig, 382 S.W.3d 325 (Tenn. 2012) (Tennessee Supreme Court; legislative policy prerogative)
• Paul v. Virginia, 75 U.S. 168 (1868) (U.S. Supreme Court; Privileges and Immunities Clause does not export home-state law), overruled on other grounds by United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533 (1944)
• Saenz v. Roe, 526 U.S. 489 (1999) (U.S. Supreme Court; Privileges and Immunities Clause and right to travel)
• Califano v. Gautier Torres, 435 U.S. 1 (1978) (U.S. Supreme Court; right to travel does not import home-state law)
• Att'y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898 (1986) (U.S. Supreme Court; sources of right to travel)
• United States v. Guest, 383 U.S. 745 (1966) (U.S. Supreme Court; right to travel includes use of highways)
• Edwards v. California, 314 U.S. 160 (1941) (U.S. Supreme Court; striking down ban on bringing indigent persons into state)
• Crandall v. Nevada, 73 U.S. 35 (1867) (U.S. Supreme Court; invalidating tax on leaving state)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-052.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
April 24, 2014
Opinion No. 14-52
Drug-Free-Workplace Programs

QUESTIONS

1. Do the drug-free-workplace programs established by Tenn. Code Ann. §§ 50-9-101 to -114 violate either the Tennessee Constitution or the United States Constitution?

2. If the purpose of a drug test under the drug-free-workplace programs is to disclose whether an employee is under the influence of drugs or alcohol at work, is an employee unfairly punished for past drug use based on a positive drug-test result if the employee is not presently under the influence of drugs or alcohol or does not satisfy the criteria for reasonable-suspicion drug testing under Tenn. Code Ann. § 50-9-103(15)?

3. Because a number of other states have legalized the possession and use of marijuana, does the drug testing of a Tennessee employee for marijuana use violate the employee's right to freedom of movement or travel guaranteed by the Privileges and Immunities Clause of the United States Constitution?

OPINIONS

1. No. The statutes establishing drug-free-workplace programs expressly restrict drug testing to constitutional limits.

2. The express purpose of the program is to promote a drug-free workplace, enhance productivity, and discourage drug and alcohol abuse. Whether the programs unfairly punish certain employees is a question of policy to be determined by the General Assembly.

3. No.

ANALYSIS

1. Drug-free-workplace programs established under Tenn. Code Ann. §§ 50-9-101 to -114 permit employers to establish a drug-free workplace by following certain drug-testing requirements. Employers are not required to take part in the programs. See Tenn. Code Ann. § 50-9-101(b) ("If an employer implements a drug-free workplace program . . . .") (emphasis added); Tenn. Code Ann. § 50-9-103(5) ("'Covered employer' means a person or entity that . . . maintains a drug-free workplace . . . . This chapter shall have no effect on employers who do not meet this definition[.]"). But employers that choose to participate are rewarded with certain benefits, including discounts for workers' compensation premiums, a shifted burden in workers' compensation disputes, and the ability to deny workers' compensation medical and indemnity benefits. Tenn. Code Ann. § 50-9-104(a)(1)-(3). Employers who do not follow the terms of the program forfeit these benefits. Tenn. Code Ann. § 50-9-104(a).

The act establishing drug-free-workplace programs allows drug testing only "[t]o the extent permitted by law." Tenn. Code Ann. § 50-9-106(a). The state and federal constitutions, of course, are the supreme law of their respective jurisdictions. See Peay v. Nolan, 7 S.W.2d 815, 816 (Tenn. 1928); Marbury v. Madison, 5 U.S. 137, 177 (1803). The above limitation, then, expressly restricts the required drug testing under the programs to the confines of the constitutions; any violation of either constitution would also violate the act establishing the programs. Accordingly, the programs do not permit or require employers to conduct unconstitutional drug tests.

2. The purpose of the drug-free-workplace programs is expressly stated as follows:

It is the intent of the general assembly to promote drug-free workplaces in order that employers in this state be afforded the opportunity to maximize their levels of productivity, enhance their competitive positions in the marketplace and reach their desired levels of success without experiencing the costs, delays and tragedies associated with work-related accidents resulting from drug or alcohol abuse by employees. It is further the intent of the general assembly that drug and alcohol abuse be discouraged and that employees who choose to engage in drug or alcohol abuse face the risk of unemployment and the forfeiture of workers' compensation benefits.

Tenn. Code Ann. § 50-9-101(a). Whether the programs impose unfair punishment is a question for the General Assembly in the exercise of its prerogative to "declare the policy of the State touching the general welfare." Smith v. Gore, 728 S.W.2d 738, 751 (Tenn. 1987); see Hodge v. Craig, 382 S.W.3d 325, 337 (Tenn. 2012).

3. The Privileges and Immunities Clause of the United States Constitution states that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." U.S. Const. art. IV, § 2, cl. 1. The primary purpose of the Clause is to place visitors to a state on the same footing with citizens of the state. Paul v. Virginia, 75 U.S. 168, 180 (1868), overruled on other grounds by United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533 (1944); see also Saenz v. Roe, 526 U.S. 489, 502 (1999) (noting that the Clause bars "discrimination against citizens of other States").

The Clause does not require that visitors receive more rights than citizens, regardless of the law of the visitor's home state: "Special privileges enjoyed by citizens in their own States are not secured in other States by this provision. It was not intended by the provision to give to the laws of one State any operation in other States." Paul, 75 U.S. at 180; see also Califano v. Gautier Torres, 435 U.S. 1, 4 (1978) (holding that a visitor is not entitled to invoke the law of his home state as a corollary to his constitutional right to travel).

The drug-free-workplace programs do not discriminate against noncitizens. Rather, citizens and visitors alike are subject to testing if they are employed or applying for employment in a drug-free workplace. See, e.g., Tenn. Code Ann. §§ 50-9-104(a), 50-9-106(a). Therefore, the Privileges and Immunities Clause does not require Tennessee to conform its drug-testing policy to the policies of states that have decriminalized or legalized marijuana.

The Privileges and Immunities Clause may also protect "the right of a citizen of one State to enter and to leave another State." Saenz, 526 U.S. at 500, 501 n.13; see also Att'y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903 (1986) (noting that courts have attributed the source of this component to various constitutional provisions). But this component pertains only to actions that "directly impair the exercise of the right to free interstate movement." Saenz, 526 U.S. at 501; see, e.g., United States v. Guest, 383 U.S. 745, 756 (1966) (holding that the right to travel included the right to use highways and other instrumentalities of interstate commerce to travel from one state to another); Edwards v. California, 314 U.S. 160 177 (1941) (striking down a state law that prohibited the transport of indigent persons into the state); Crandall v. Nevada, 73 U.S. 35, 39-49 (1867) (invalidating a Nevada tax on every person leaving the state by common carrier). Tennessee's drug-free-workplace programs do not impair movement across borders as the laws in Guest, Edwards, and Crandall did.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

JORDAN SCOTT
Assistant Attorney General

Requested by:
The Honorable Antonio Parkinson
State Representative
Suite 36 Legislative Plaza
Nashville Tennessee 37243