Employer drug testing: disparate judicial and legislative responses.

• Author: Wefing, John B.

In recent years, concerns about the increasing use of drugs has led many employers, both private and public, to use drug testing programs in an attempt to eliminate drug use in the workplace.(1) These testing programs raise numerous constitutional, employment law and statutory questions. This article will explore many of these questions.

In the employment context, the use of drug tests has been considered in a number of situations including: drug testing of all prospective employees; drug testing of employees who exhibit some signs of drug use (reasonable suspicion testing); random drug testing of current employees or random drug testing of current employees in safety-sensitive positions; drug testing of employees who are involved in accidents; and drug testing as part of an annual physical examination.(2)

When the employer is a government agency, the Fourth Amendment protections against unreasonable search and seizure(3) must be considered. Additionally, states which have expansively interpreted the search and seizure protections in their own state constitutions(4) must consider the implications of those constitutional protections on employer-mandated drug testing. This Article will begin with an evaluation of drug testing by public employers and conclude with an evaluation of drug testing by private employers.

1. PUBLIC EMPLOYER DRUG TESTING

   Public employers who wish to drug test their employees must deal with the ramifications of the Fourth Amendment. The Fourth Amendment limits the right of government--federal, state and local--to engage in unreasonable searches and seizures.(5) The United States Supreme Court has held that drug testing constitutes a search for purposes of Fourth Amendment analysis.(6) Therefore, whenever a government employer wishes to engage in a drug testing process, it must act consistently with the Fourth Amendment.(7)

   1. United States Supreme Court Decisions

      The United States Supreme Court has decided four cases dealing with suspicionless drug testing. Two of the cases deal directly with drug testing by employers,(8) a third deals with a situation similar to employer drug testing,(9) and a fourth deals with drug testing of students.(10) This fourth case, Vernonia School District 47J v. Acton(11) permitted the testing of student athletes.(12) The third case was Chandler v. Miller,(13) in which the Court dealt with the constitutionality of a Georgia statute that required all candidates for public office to submit to a drug test.(14) The Court held that this statute was unconstitutional because a special need to engage in drug testing was not demonstrated.(15) It was this "special needs" approach that had been used by the Court in both Skinner v. Railway Labor Executives' Ass'n(16) and National Treasury Employees Union v. Von Raab(17)--the two cases involving employer drug testing--to justify drug testing in the absence of any particularized suspicion.(18) According to black letter law, searches and seizures without a warrant and probable cause are presumptively invalid.(19) However, there are numerous exceptions to this general rule.(20) In 1989, in the companion cases Skinner and Von Raab, the Supreme Court recognized the "special needs" approach as another exception to the general rule necessitating warrants and particularized suspicion.(21) In Skinner, the Court focused on regulations promulgated by the Federal Railroad Administration requiring drug and alcohol testing of train crew members involved in an accident--even though no particularized suspicion is required that any of the crew members had been using drugs or alcohol.(22) The Court found that there were "special needs" involved that permitted the dispensation of the particularized suspicion requirement.(23) Justice Kennedy in his opinion reasoned that heavy regulation of the railroad industry reduced the employees' expectation of privacy.(24) Furthermore, protecting the safety of the traveling public permitted the testing.(25)

      In Von Raab, the Supreme Court dealt with drug testing of employees who were currently employed by the customs office but were seeking different jobs within the office.(26) The case actually dealt with three different situations: first, employees who were seeking positions requiring direct involvement in the interdiction of drugs; second, those seeking positions requiring the carrying of weapons; and finally, those seeking positions requiring the handling of classified information.(27) The Court permitted drug testing in the first two instances which required direct involvement in drug interdiction or the carrying of weapons, but it did not decide the issue of drug testing of those who had access to classified information.(28) The Court found "special needs" justified the first two categories, but felt that it could not assess the reasonableness of drug testing on all employees seeking positions with access to classified material.(29) That issue was remanded for further fact finding.(30) Thus, the Court demonstrated its reluctance to allow a blanket right to test employees. It should be noted that Von Raab was a five to four decision.(31) The dissenters were unwilling to allow the drug testing primarily because they believed that there had been an insufficient showing of any particular problems with the use of drugs within the Customs Department.(32) Justice Scalia said in dissent: "The Court's opinion ... will be searched in vain for real evidence of a real problem that will be solved by urine testing of Customs Service employees."(33)

      The dissent's approach in Von Raab was subsequently used in Chandler v. Miller to show the absence of justification for drug testing public office candidates.(34) In Chandler, Justice Ginsburg held that Georgia had failed to show any "special need" for the statute which required drug testing as a certification requirement.(35) There was no indication of a drug problem among political candidates.(36) Additionally, political candidates are "subject to relentless scrutiny--by their peers, the public, and the press. Their day-to-day conduct attracts attention notably beyond the norm in ordinary work environments."(37) This case does raise some questions concerning the entire issue of pre-employment drug testing which will be discussed in the following section, in conjunction with state and federal cases.

      The Supreme Court decisions thus stand for the proposition that before random or suspicionless drug testing of current public employees can be carried out by their employers, there must be some showing of "special needs" justifying the testing.

   2. State and Federal Court Decisions

      State and federal court decisions have echoed the approach of the United States Supreme Court. The courts have generally held that if there are "special needs" justifying random drug testing, then such testing will be allowed.(38) Most of the decisions dealing with this issue involve random or suspicionless testing.(39)

      In 1987, the New York Court of Appeals dealt with the issue of drug testing teachers in Patchogue-Medford Congress of Teachers v. Board of Education.(40) The School District required that all teachers who were coming up for tenure submit to a random drug test.(41) The Court of Appeals, upon hearing the case, held that the policy was unconstitutional.(42) The court first held that testing was a search for purposes of both the Federal Constitution and the New York Constitution.(43) It then held that the particular testing involved was not reasonable.(44) The court further recognized "[u]nder certain special circumstances, however, it may be reasonable to permit the government to search without a warrant on grounds not amounting to probable cause."(45) For example, the same court specifically allowed both drug testing based on reasonable suspicion and drug testing as part of a general physical examination to determine employees' physical and mental fitness to perform their duties.(46) Thus, the New York Court of Appeals only restricted the random, suspicionless testing of persons when it was not part of a general physical examination.

      A year later in Caruso v. Ward,(47) the New York Court of Appeals actually permitted the use of random suspicionless drug testing of government employees.(48) Here, the employees were members of an elite corps of police officers, most of whom were involved in hazardous drug-related operations.(49) It should be noted that the police department had an existing policy of testing all recruits upon application to the department, again during the five month training period, and again at the end of the 18 month probationary period.(50) These testing programs were apparently unchallenged.(51) The only challenge was aimed at the additional random testing of all officers who were admitted into the elite program.(52) Not surprisingly, the officers challenging the program relied heavily on Patchogue.(53) The court recognized that all public employees give up some of their expectation of privacy, but that officers who are part of a paramilitary force lose even more expectation of privacy, and finally that those who have volunteered to be part of this elite group have even less expectation of privacy.(54) The court concluded "the Department has established a justifiable interest and responsibility in the periodic testing of special officers constituting its main line offense and defense in the war against drug trafficking."(55)

      Two years later in Seelig v. Koehler,(56) the New York Court of Appeals expanded that ruling to cover corrections officers. The court equated the "extremely diminished privacy expectations of the jail guards" with the police officers in Caruso.(57) It should be noted that this case was decided narrowly in a four to three decision.(58) However, by 1994, the New York Court of Appeals was closer to becoming unanimous. In Delaraba v. Nassau County Police Department,(59) the New York Court of Appeals in a six to one decision...