Drug Screening and Psychological Screening for Public Safety Professional Staff

In the August 2024 edition of Siren Call, we examined the timing of law enforcement hiring practices. Since then, we received more specific questions about whether public safety employers can require pre-employment drug screening or psychological screening for professional staff not subject to DPSST and CJIS certification standards.

As many of you are aware, pre-employment drug testing is treated as a search under Article I, section 9 of the Oregon Constitution and the U.S. Constitution in the context of public employer testing. In Oregon and other West Coast states, pre-employment drug testing is only lawful for safety-sensitive positions. Although you will not find a list in ORS or OAR regarding what is defined as a safety-sensitive position, the following types of positions are generally considered safety-sensitive (non-exhaustive list):

• Law enforcement officers

• Correctional officers

• Firefighters

• Emergency medical personnel

• Armed security

• Heavy equipment operators

Generally speaking, “safety sensitive” positions are those that directly handle public safety tasks, operate dangerous equipment, or care for vulnerable populations.

For clerical, administrative, professional, or policy roles without inherent safety risks, blanket pre-employment testing is not recommended. The case often referenced regarding pre-employment drug testing is Lanier v. City of Woodburn, 518 F.3d 1147 (9th Cir. 2008). It is worth reviewing the ruling, which can be found here: Lanier v. City of Woodburn, 518 F.3d 1147 (9th Cir. 2008). One of the most relevant sections of the ruling reads, “We agree that Woodburn’s policy is unconstitutional as applied because the City failed to demonstrate a special need to screen a prospective [library] page for drugs."

This does not preclude an agency from conducting ordinary background investigations and reference checks to ensure an applicant’s background complies with agency hiring standards. For example, if an applicant for a records specialist position was revealed to have on-going association with known criminal drug suspects in your community, an agency could preclude their employment for a legitimate business reason — the agency needs to maintain the confidentiality of on-going investigations. There are public and officer/deputy safety arguments which can be made.

We recommend agencies establish standards and any disqualifications that are directly tied to the essential functions of the position. Agencies should ensure they have objective and equally applied hiring standards. This is particularly important if an agency is later required to defend its hiring decision against an allegation of disparate treatment or non-compliance with veteran’s preference (See ORS 408.225-237 (Advantages Given Veterans and Service Personnel in Public Employment) and OAR 839-006-0435 through 0465 (Additional Guidance regarding Veterans’ Preference).

Regarding psychological screening beyond what is required by ORS and OAR for DPSST-certified positions, psychological screening should only be conducted in those circumstances where it is job-related, consistent with business necessity, and uniformly applied. We recommend doing an analysis of which positions you wish to send for psychological screening. Examples of positions in which it may be easier to justify or are required by law are:

• Public safety or high‑risk duties (even outside sworn LE)

• Use of deadly force or weapons

• Care of vulnerable populations

• Extreme stress, crisis response, or catastrophic consequences of failure

Examples of positions/circumstances where psychological screening is not recommended are:

• Clerical, administrative, professional, or office roles

• As a screening tool for "fit," temperament, or personality

• Based on generalized concerns (e.g., “stressful job,” “public interaction”)

• Situations without individualized or role‑specific justification

The prudent public safety organization should review their hiring processes and policies to ensure compliance with this guidance. As always, the CIS Employment Risk Services Team and Public Safety Team are here to support you and eager to help.