Drug-testing in the nursing home. (column)

It does not take a keen observer to know that drug abuse, a major American problem, extends to the workplace. Nursing home owners have reasons to be particularly concerned. First of all, nursing homes have pharmacies that may contain drugs that are attractive to users. Second, nursing home employees are dealing with human beings-residents/patients-so that the impairment of employees can have dangerous consequences for the health and safety of human beings, and might not affect just productivity.

One popular and controversial idea for dealing with drug abuse in the workplace is employee drugtesting. U.S. Secretary of Labor Ann McLaughlin recently said that drug-testing is a "useful tool" to help diagnose and prevent drug abuse-but only as part of an employee education and assistance program. Employees do not object to education and assistance. Drug-testing is a different story. Many employees are offended by the idea of taking a drug test, which involves the analysis of their urine and which they think, not surprisingly, is a very private matter.

The issues of the legality of drug-testing and its ramifications are very much up in the air. Customarily, writers on the law for nonlawyers note that their columns and articles are not substitutes for the advice of lawyers. That is especially true in the drug-testing area. A nursing home owner or operator who contemplates starting a testing program should think very carefully before doing so, and should closely consult an attorney. The purpose of this column is to show how difficult a legal issue drug-testing is.

Federal case law

Various federal agencies have been developing drug-testing policies since the 1986 congressional campaign, in which drug-testing was a big issue. Challenges to the testing policies are being tried throughout the courts. The U.S. Supreme Court has ageed to hear the appeal of one of those cases, and may determine some of the issues involved.

Decisions about U.S. Government policies may not determine the legality of the policies of private nursing homes (as differentiated from government-funded and/or -operated nursing homes). Federal government employees are protected by the Fourth Amendment, which bans unreasonable searches and seizures, Private nursing homes probably are not covered by the Fourth Amendment-even if they are beneficiaries of Medicare and/or Medicaid funding. The Supreme Court has stated that a nursing home's transfer policies were …