DRUG TESTING TENANTS: DOES IT VIOLATE RIGHTS OF PRIVACY?

Real Property, Probate and Trust Journal, Fall 2003 by Aalberts, Robert J

The purpose of this Article is three-fold. In Part II, the Article attempts to analogize the practice of drug testing employees with the current approaches used to drug test tenants. The purpose of this analysis is to set the stage for a discussion of how existing laws governing drug testing in the employment arena may likewise be applicable to the same practice in housing. Yet, while employee drug testing is, in some form, generally legal in all states, aspects of it are distinguishable from drug testing tenants. The nature of drug testing tenants may, in fact, be more intrusive into the private affairs of tenants than employees. Moreover, the issue of intrusiveness may also spill over to the tenant's family. Unlike the situation with employees, drug use may sometimes be more prevalent among a tenant's minor children than among adult tenants. Therefore, if eradication of drug activity is to be accomplished, testing minors must be explored. Accordingly, these differences are noted and discussed in Part II as well. Part III discusses the common law right of privacy, which exists in virtually every state. The right of privacy may have particular relevance to the issue of testing tenants for drugs because the right can be applied to any situation in which the victim believes his privacy has been intentionally and unreasonably intruded upon by another. Thus, a court may, in the foreseeable future, be called upon to rule whether the common law right exists when a tenant is subjected to a drug test. The possibility of judicial involvement may be needed, particularly if state legislatures do not first address the issue.24 In Part IV, the Article concludes with a discussion of how the drug testing statute now employed in Minnesota may be successfully borrowed by landlords to protect the privacy rights of tenants while diminishing the landlord's legal exposure.

II. DRUG TESTING TENANTS VERSUS EMPLOYEES: ARE THEY ANALOGOUS?

As discussed above, the practice of landlords' drug testing their tenants has occurred since only the early 1990s.25 Yet, at the present time the practice has not, at least to the author's knowledge, been addressed under any state case or statutory law. Laws regulating employee drug testing, on the other hand, have been established for well over a decade.26 Much like tenant drug testing today, employee drug testing, when first instituted, was controversial.27 Consequently, drug testing in the employment arena has, since its inception, spawned numerous lawsuits.28 This has resulted in court cases, as well as state statutes, that today have created a more predictable legal environment,29 although a great deal of variation state-to-state still exists.30 Today, apparently no state prohibits all manner of employee drug testing.31 Still, a number of states and cities have determined that certain forms of drug testing may be illegal.32

Although both employee and tenant drug testing are aimed at eradicating the destructive effects of illegal drug use, a number of persuasive arguments can be made to distinguish the two practices. Employees' actions, and even their e-mail and other Internet activities, are usually observable throughout the day. Thus, employees generally operate in an environment open to the scrutiny of management, fellow employees, customers, vendors, and other third parties.33 Tenants, on the other hand, expect their home or apartment to be their private refuge. The old adage, "a man's home is his castle," is alive still and taken seriously as a legal and moral exemplar.34 Thus, employees cannot reasonably expect to possess as many privacy rights in their places of work as they do in their homes.35 However, employee drug testing procedures, up to a point, can still be viewed analogously with tenant drug testing.