Vol. 8, No. 6, Pg. 18. The Fourth Amendment, Substance Abuse and Drug Testing in the Public Sector.

• Author: By D. Garrison "Gary" Hill

South Carolina Lawyer

1997.

Vol. 8, No. 6, Pg. 18.

The Fourth Amendment, Substance Abuse and Drug Testing in the Public Sector

18The Fourth Amendment, Substance Abuse and Drug Testing in the Public SectorBy D. Garrison "Gary" HillDrug testing of public employees presents special legal problems, many of which have yet to be addressed by South Carolina courts.

While the impact of illegal drug use on society is unfortunate and well known, the effect on the private and public workplace receives little attention. According to the 1995 National Household Survey on Drug Abuse conducted by the Department of Health and Human Services, an estimated 12.8 million Americans had used an illegal drug in the past month.

A 1994 study by the National Institute of Drug Abuse (NIDA) found that while drug use was declining, 1.3 million Americans had used cocaine in the last month, 1.2 million had used crack within the last year and 8.5 percent of the population had used marijuana in the past year. Seventy percent of all illegal drug users are employed. A 1992 Small Business Administration study of businesses employing less than 500 people found that 15 percent of these companies had been affected by substance abuse.

In the early 1980s, the private sector began responding to the effects of workplace substance abuse. Between 1982 and 1985, the number of Fortune 500 companies (including the likes of AT&T, DuPont, Exxon and Federal Express) that had instituted drug testing policies doubled. By 1990, one-half of the Fortune 500 tested employees for drugs. Positive test results are not uncommon. SmithKline Beecham Clinical Laboratories reported in 1994 that 8.4 percent of their 3 million drug tests were positive. See Zeese, Drug Testing Legal Manual and Practice Aids at § 1.2 (1996).

Following the private sector's lead, in 1986 President Reagan issued Executive Order 12564 mandating drug testing of some 400,000 federal employees. Civil libertarians, employee unions and others described Reagan's order as a "witchhunt" and prelude to a "police state." A president of the American Medical Association criticized mandatory drug testing as "chemical McCarthyism."

Lawsuits challenging various federal testing programs inevitably followed. Because the government was undertaking a test (i.e., a search), the Fourth Amendment search clause was implicated. The constitutional questions were largely put to rest, however, by two 1990 decisions of the U.S. Supreme Court: National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384 (1989), and Skinner v. Railway Labor Executives Ass'n., 489 U.S. 602,109 S.Ct. 1402 (1989).

Skinner involved the Federal Railroad Administration's regulations mandating the drug testing of employees involved in certain accidents or who had violated safety rules. Von Raab concerned the drug testing of U.S. Customs Service employees seeking transfer or promotion to positions that involved drug interdiction, required the carrying of firearms or the handling of classified material.

In both cases, the Supreme Court rejected the claims of the plaintiff employee unions that the testing infringed the Fourth Amendment. The Court held that although the Fourth Amendment was triggered because the federal government's collection and analysis of urine samples constituted a "search," the government needed neither a warrant or probable cause.

The Court noted that the test of the constitutionality of a governmental search is "reasonableness," specifically holding 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

20the Government's interests to determine whether it is impractical to require a warrant or some level individualized suspicion in the particular context." Von Raab at 1390.

Employing the "special needs" balancing test to the facts at hand, the Court in Skinner and Von Raab found that the government's interests (in the safety, integrity and physical fitness of employees in dangerous and sensitive jobs) easily outweighed the employee's privacy expectations. The Court further held that it was "impractical" to require either a warrant or some level of individualized suspicion, and thus concluded that the Fourth Amendment allowed the drug testing.

Skinner and Von Raab provide the framework on which scores of government drug testing programs have been upheld. To date, state and federal courts have allowed testing of correctional officers, fire fighters, public hospital employees, police officers, sewer district employees, court personnel and numerous other public employees of almost every rank and class. In 1995, the Supreme Court revisited public drug testing and upheld random testing of high school student athletes. Veronia School District v. Acton, 115. S. Ct. 2386 (1995). The Court in Acton emphasized and, as will be seen, somewhat expanded the Skinner-Von Raab test.

TYPES OF TESTING ALLOWED

Public employers considering implementing drug testing policies will generally consider four types of drug testing: for-cause testing; post-accident testing; random testing; and pre-employment (i.e., job applicant) testing.

While there remains little doubt as to the general...