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Court's rulings on testing crack down on drug abuse.

New issues have ingrained themselves into American society as deeply as drug abuse. In the workplace drug abuse is a particularly vexing problem, one that businesses are fighting with increasing ferocity.

In March 1989 the U.S. Supreme Court issued two far-reaching decisions on drug testing in the workplace. Skinner v. Railway Labor Executives Association and National Treasury Employees Union v. Von Raab dealt with drug testing schemes for railroad and U.S. customs workers, respectively. The implications of these cases appear to give certain employers, including those in the private sector, greater latitude in testing workers. Employees, however, including union workers who thought they were contractually protected, may have legitimate concern that their privacy rights are eroding.

The Skinner and Von Raab Cases

Federal constitutional protections from illegal governmental conduct afforded workers in the public sector generally do not apply to the private sector. Under the Fourth Amendment, government workers are protected from unreasonable search and seizure, including how drug testing can be conducted. The Fifth Amendment protects federal, state and local workers from illegal governmental conduct. In Skinner, however, the issue of what constitutes governmental conduct necessary for constitutional protections has become clouded.

In 1983 the Federal Railway Administration promulgated regulations that required railroads to conduct urine and blood tests on their workers following major train accidents or incidents. Workers who violated safety rules could also be tested, but this was not required. The regulations were subsequently challenged under several legal theories. One theory argued that because railroads were privately owned, government action, including applying the Fourth Amendment, could not be controlling. Therefore, federal regulations could not legally supersede any collective bargaining agreement or arbitration awards interpreting the agreement.

The Supreme Court in Skinner disagreed, ruling that railroads "must be viewed as an instrument or agent of the government" and therefore must comply with the railway administration's regulations. Because administration regulations pre-empt state laws under the Constitution's supremacy clause and supersede any private agreements, federal law, including the Fourth Amendment and other relevant constitutional provisions, would apply to the railroad's drug testing scheme. In addition, the departments of Defense and Transportation have issued similar regulations to those ruled on in Skinner and Von Raab. These regulations will affect contractors who do business with these entities or who are subject to their regulations.

Three of the most controversial drug testing impediments have been whether testing should be permitted when there is no perceived or documented drug problem in the workplace, if the testing methods are reliable and whether a positive test proves there was on-the-job impairment. The Von Raab case addressed all three concerns. In the case, the U.S. Customs Service implemented a drug-screening program that required urinalysis for employees desiring a transfer or promotion to positions that were directly involved in drug interdiction, where carrying a firearm was necessary or where classified material was handled.

Under this scheme, the employee would be notified of testing and that subsequent transfer or promotion would depend on passing the test. Procedures for collecting, analyzing and protecting the employee's privacy were contained in the program. Under the Customs Service program, only five out of 3,600 employees tested positive. This prompted the Treasury Employees Union to argue that such an insignificant number gives rise to a "suspicionless search" that is not a "sufficiently productive mechanism to justify [its] intrusion upon Fourth Amendment interests."

The Supreme Court was unmoved by this argument. It ruled that although only a few employees were guilty of drug use, that fact did not impugn the program. The court said that because drug use is such a serious problem, there is little reason to believe that any workplace is immune from it. Furthermore, because detecting drug use is difficult, it is necessary to use such a program, as long as it advances government policy.

How Reliable Is It?

The Supreme Court in Von Raab sanctioned testing procedures promulgated by the Department of Health and Human Services and implemented by the Customs Service in its testing program. The procedure calls for an independent contractor to fix the time and implement the test. The worker, after discarding outer garments, produces a urine specimen while being monitored by someone of the same sex. In addition dye is added to the toilet water to prevent adulteration.

After receiving the sample, the monitor inspects it, places a tamperproof seal over it and affixes an identification label with the date and the employee's specimen number. The employee then signs a chain-of-custody form, and the sample is placed in a plastic bag, sealed and delivered to a lab where it is tested for marijuana, cocaine, opiates, amphetamines and phencyclidine, commonly known as PCP. If the test is positive, another one is implemented. Any confirmed positive results are reported to a licensed physician with substance abuse training. Customs workers who have a confirmed test with no satisfactory explanation can be dismissed from their jobs.

The Supreme Court found that this procedure did not "carry the grave potential for arbitrary and oppressive interference with the privacy and personal security of individuals that the Fourth Amendment was designed to prevent." It was particularly impressed that only employees tentatively accepted for promotion or transfer could be tested and that their medical information could not be disclosed to the government unless a positive test resulted, and then only to a licensed physician. In addition, the court found the testing process to be "highly accurate, assuming proper storage, handling and measurement techniques."

The Supreme Court's strong ratification of the Health and Human Services' testing procedure may have important implications in the private sector. The reliability of drug testing had been a target of often-warranted complaints. Indeed, cases of mishandling, false positives and other procedural problems have cast serious doubts on the efficacy of urinalysis. Such doubts had a chilling effect on many employers that feared lawsuits by disgruntled employees. However, if legally attacked, employers who adhere to these guidelines can point to the apparent reliability of this approach. In fact, if the employer is in the public sector or is deemed to be an agent of the government" in the private sector, these procedures should make it virtually immune from assertions that its testing methodology is unreliable.

Proving the Connection

An ongoing issue of drug testing has been the necessity of proving the connection between urinalysis and on-the-job impairment. Urinalysis cannot, for example, prove when a person, who tests positive for marijuana, used the drug. Hence, the tests may punish and stigmatize a person for extracurricular usage that may have no effect on the worker's on-the-job performance. Even worse, someone who inhales another's marijuana smoke can also test positive. Consequently, some courts have deemed drug testing invalid.

The Von Raab case indicates that this dilemma is no longer an impediment to testing. While the court did not directly mention the connection problem and did not distinguish between on-the-job and extracurricular drug use, it stated that the Customs Service has a compelling interest in having a "physically fit" employee with unimpeachable integrity and judgment." This implies that drug abstinence is an ongoing duty imposed on certain workers and is not protected from the intrusion of drug testing.

In Skinner, moreover, the court held that information pertaining to an employee's drug use, regardless of when it occurs, is important. It said, "A positive test result, coupled with known information concerning the pattern of elimination for the particular drug and information that may be gathered from other sources about the employee's activities, may allow the Agency to reach an informed judgment as to how a particular accident occurred."

Setting a Standard

Perhaps the most important outcome of the two cases is the emergence of a new standard for determining the reasonableness of drug testing. The standard may legalize many testing programs that formerly would have been legally risky. Generally, a search is legal if a warrant is issued after proving probable cause. However, a warrant and probable cause do not suffice in every circumstance.

Consequently, the court stated in Von Raab that "where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context." Thus, to apply this test on a case-by-case basis, special governmental needs or compelling interests must be articulated, then weighed against the employee's privacy expectations. If government interests outweigh privacy expectations, a search, even without a warrant or individualized suspicion, would be deemed reasonable and legal.

Von Raab enunciated three compelling governmental interests that had to be weighed against an employee's privacy expectations: the integrity of the work force, public safety and protection of sensitive information. In applying these interests to the Customs Service, the court asserted that customs employees can be tested if they are closely involved with those interests. The court concluded that the interests were compelling enough to outweigh the intrusion of a urine test and that employees in drug interdiction, especially those who carry firearms, have lower privacy expectations.

The court in Skinner stated that railroad workers also had diminished expectations of privacy because they participated in an industry that is pervasively regulated to ensure safety. Moreover, it found that safety goals can be accomplished only if employees are healthy. The court also emphasized that the intrusion into a worker's privacy was limited due to the Health and Human Services guidelines.

Implications of the New Standard

Three months after the Von Raab and Skinner decisions, the U.S. Circuit Court of Appeals for the D.C. Circuit was called on to apply the new standard to Harmon v. Thornburgh. In this case a random, mandatory urinalysis test was imposed on justice Department criminal prosecutors, employees with access to grand jury proceedings and personnel holding national security clearances. In the department's testing scheme the randomly selected employee would be given only a two-hour warning before taking the test under Health and Human Services' guidelines. The importance of Harmon was that despite its factual differences with Von Raab, the same standard was applied. As a result of these cases, the appropriate inquiry is no longer the type of testing procedure being used but whether the public interest in conducting a drug test outweighs an employee's privacy expectations.

In Harmon the three governmental interests, integrity, public safety and sensitive information, were applied. The court ruled, however, that the integrity interest did not have the necessary connection in Harmon as it did in Von Raab in which there was a fear of drug use by employees engaged in drug interdiction. Similarly, the Appeals Court decided that the public safety interest, found in both Supreme Court cases, did not outweigh the justice Department employees' privacy expectations. The main distinction, the court stated, was that the immediacy of the threat of a mishap with a firearm or train is greater than a blunder by a Justice Department lawyer.

The court did, however, find merit in the last interest, but defined it narrowly. It stated that protecting "truly sensitive information" such as "top secret national security information" would outweigh an employee's privacy expectations. But the court cautioned that "all secrets" could not justify such testing.

Business Owners Affected

Private businesses, such as airlines and trucking companies, that are more pervasively regulated fit into the category of agents of the government under the Skinner analysis, especially in light of regulations issued by the Department of Transportation. Moreover, for private sector businesses deemed to be agents, relevant federal laws will pre-empt conflicting state laws as well as labor agreements and arbitrations. For businesses that are less regulated, their status as agents must still be hammered out. If a business is not an agent of the government, a worker would have to rely on traditional common law tort actions, such as invasion of privacy, defamation or possibly state statutory or constitutional protections, to fight an employer's testing policy.

Additionally, if a business is considered to be an agent of the government, it no longer has to ponder what were once considered impediments to drug testing. Thus, proving that there is a drug problem as a prerequisite to a testing program, wrestling with the reliability of the testing procedure and determining if the positive results directly affect the work site are no longer important issues.

To legally justify any testing approach, compelling governmental interests must be proven and then demonstrated why they outweigh the employee's privacy expectations. Furthermore, employees with jobs that incorporate any of these interests will be deemed to have considerably diminished privacy expectations. However, the connection between the employee's job and the interests must be direct and include other employees with even an indirect or incidental connection to the interest.

The bottom line, assuming a private business is an agent of the government, is that business can potentially justify even a random mandatory drug test. Employees, on the other hand, must grapple with the realization that all levels of government-legislative, executive and judicial-are pursuing public policy to purge drugs from the workplace. The outcome may be an erosion of workers' privacy rights in the name of a safer workplace for all. Robert J. Aalberts, J.D., is associate professor of business law and Harvey W. Rubin, Ph.D., CPCU, CLU, is professor of finance at Louisiana State University in Shreveport.
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Title Annotation:U.S. Supreme Court
Author:Aalberts, Robert J.; Rubin, Harvey W.
Publication:Risk Management
Date:Mar 1, 1991
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