But see Guiney: revisiting mandatory random suspicionless drug testing of Massachusetts public-sector safety-sensitive employees in light of house bill 2210.

• Author: Benware, Lesley
• Position: The Massachusetts Constitution of 1780

"[T]he unlawful obtaining, possession, and use of drugs cannot be reconciled with respect for the law. Surely, the public interest requires that those charged with responsibility to enforce the law respect it." (1)

1. INTRODUCTION

   On August 29, 2007, a grease fire in West Roxbury killed two members of the Boston Fire Department. (2) According to media reports of the autopsy results, the firefighters were under the influence of alcohol and drugs at the time of their deaths, and presumably, when they responded to the fire that claimed their lives. (3) In the wake of this tragic accident, public and political support for mandatory, random drug testing of safety-sensitive personnel has grown in Massachusetts. (4) House Bill 2210--An Act Relative to Public Safety Employees (House Bill 2210)--addresses that increased concern, authorizing random drug and alcohol testing of all publicly and privately employed public-safety personnel within the Commonwealth. (5) The current debate over random drug testing of fire department personnel echoes a debate that took place almost twenty years ago over drug testing of Boston police officers--a practice the Supreme Judicial Court denounced in its deeply divided Guiney v. Police Commissioner of Boston opinion. (6)

   Guiney followed several united States Supreme Court cases upholding random urinalysis testing of employees in highly regulated industries. (7) In fact, since the Supreme Court's decisions in National Treasury Employees Union v. Von Raab (8) and Skinner v. Railway Labor Executives' Ass'n, (9) state and federal appellate courts have generally upheld random suspicionless drug testing of public and private employees engaged in public safety, safety-sensitive, or other similarly conceptualized tasks, including police officers, firefighters and emergency medical technicians. (10) Mandatory, random, suspicionless drug testing, while no doubt the most controversial of any type of drug testing, has often been upheld under limited conditions, for example, when the public safety is involved. (11)

   This Note will examine the short and contentious history of drug testing in the United States. (12) It will review Supreme Court precedent for upholding suspicionless drug testing of public-safety personnel, as well as state statutes and case law authorizing workplace drug testing, with a particular focus on the testing of public-sector safety-sensitive personnel. (13) This Note will examine the tension between O'Connor v. Police Commissioner of Boston (14) and Guiney v. Police Commissioner of Boston, (15) two arguably conflicting Massachusetts public-sector drug testing decisions. (16) Lastly, it will review more recent private-sector decisions to determine the current state of Massachusetts law regarding drug testing of public and private employees in safety-sensitive positions. (17) This Note will conclude by suggesting amendments to House Bill 2210, or guidelines for the Secretary of the Executive Office of Public Safety and Security, to conform to the holding in Guiney. (18)

2. HISTORY

   1. The 1980s: Declaring a War on Drugs (in the Workplace)

      Workplace drug testing became a national phenomenon in the 1980s. (19) Drug testing had its nascence in the military, several years prior to President Reagan's well-known declaration of a War on Drugs. (20) President Nixon directed the Secretary of Defense to initiate a drug prevention program in 1971, after increasing numbers of service members in Vietnam were found to be using heroin and other drugs. (21)

      The advent of regulated testing in the workplace can be traced to around 1983, when the National Transportation Safety Board issued a series of recommendations, advocating the development and implementation of a meaningful alcohol and drug testing regime for railroad employees. (22) In 1983, President Ronald Reagan established the President's Commission on Organized Crime (Commission). (23) The Commission issued its final report in March of 1986, recommending that:

      The President should direct the heads of all Federal agencies to formulate immediately clear policy statements, with implementing guidelines, including suitable drug testing programs, expressing the utter unacceptability of drug abuse by Federal employees. State and local governments and leaders in the private sector should support unequivocally a similar policy that any and all use of drugs is unacceptable. Government contracts should not be awarded to companies that fail to implement drug programs, [i]ncluding suitable drug testing.... Government and private sector employers who do not already require drug testing of job applicants and current employees should consider the appropriateness of such a testing program. (24) In response to the Commission's report, President Reagan issued Executive Order 12,564 (25)(Order), which set forth the policy mandate for the later-enacted Drug-Free Workplace Act of 1988 (1988 Act). (26) Significantly, the Order required the head of each federal executive agency to establish a program to test for illegal drug use by employees in "sensitive positions." (27) Congress required that several administrative prerequisites be fulfilled before making federal funding available to administer or implement drug testing pursuant to the Order, including issuing comprehensive standards and procedures to carry out the Order. (28) The Department of Health and Human Services guidelines established, among other things, specimen collection procedures and controls, laboratory analysis procedures, and chain of custody and recordkeeping requirements. (29)

      More drug-testing legislation soon followed. (30) In 1991, Congress passed the Omnibus Transportation Employee Testing Act of 1991, (31) authorizing pre-employment, reasonable suspicion, random, and post-accident testing of transportation employees "responsible for public safety functions." (32)

      Employee drug testing thus began within the federal government and companies performing government contracts, and subsequently spread to the private sector. (33) Corporate entities, especially in the oil, chemical, transportation, and nuclear industries, voluntarily began conducting employee drug tests. (34) By 1988, 28% of the country's largest corporations, including AT&T and General Motors, were using drug tests to screen job applicants. (35) The National Institute of Drug Abuse estimates that by 1990, the number had risen to 40%. (36) In this way, drug testing spread to the private sector. (37)

      Either due to its convenience or legislative concerns over individual privacy rights, urinalysis has become the most common means of testing. (38) Urinalysis is considered less invasive than blood testing and more reliable than hair testing, reducing privacy concerns raised by these other types of tests. (39) A study conducted in 1997 suggested that urinalysis comprised 97% of all employer-conducted drug tests. (40)

      The reasons and circumstances under which employers may test for drugs vary by state and within industries. (41) There are at least six common circumstances, however, under which employers test for drugs: pre-employment, post-accident, routine, return-to-duty, reasonable suspicion, and random drug testing. (42) Insomuch as an employer's interest in testing an applicant is greater than testing an employee, pre-employment testing is often considered the least objectionable form of testing, and the most likely to withstand constitutional challenge. (43) In contrast, random suspicionless drug testing of current employees is the most controversial form of drug testing, and its constitutionality has often been linked to the nature of the position at issue, and whether safety concerns create a high degree of regulation in the industry. (44) The response to testing has been mixed. (45) Testing has been credited with successfully reducing the incidence of drug use, in both the military and civilian work force. (46) Nevertheless, many employees and some courts find the tests too invasive, inaccurate, or inefficient to withstand constitutional scrutiny, among other things. (47)

   2. Mounting a Defense to Drug Testing: The Federal Constitutional Framework

      Opponents of employee drug testing frequently raise concerns regarding the constitutionality of drug testing programs. (48) Such concerns are typically couched in terms of perceived lack of accuracy, effectiveness, or notice by the employer. (49) Drug testing through urinalysis constitutes a search and seizure under the Fourth Amendment and analogous provisions of state constitutions. (50) Opponents argue that such tests--especially tests not based on a reasonable suspicion of drug use, i.e., suspicionless testing--violate the constitutional prohibition on unreasonable searches and seizures. (51)

      The Supreme Court has upheld the constitutionality of such testing, however, on the grounds that the Fourth Amendment's warrant and probable cause requirements do not apply in such cases, based on the "special needs" doctrine first announced in New Jersey v. T.L.O., (52) a case involving a principal's warrantless search of a student's purse. (53) The T.L.O. Court held that requiring school officials to fulfill the normal warrant requirement of the Fourth Amendment would frustrate the "swift and informal disciplinary procedures needed in the schools." (54) Instead, the governing standard should be one based on "the reasonableness, under all the circumstances, of the search." (55) Justice Blackmun, in his concurrence, described it thusly: "Only in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable, is a court entitled to substitute its balancing of interests for that of the Framers." (56)

      The special needs exception to the warrant and probable cause requirement of the Fourth Amendment has generated much criticism. (57) This is particularly true in the context of employee...