Drug and Alcohol Testing of Municipal Employees

C. Christine Fillmore

How far may employers go to guarantee a drug-free and alcohol-free workplace? The answer, surprisingly, depends upon whether the employer is a private organization or a governmental entity, who is being tested and how the tests are performed.

'Drug-Free Workplaces'
Many people are familiar with the federal Drug-Free Workplace Act of 1988. 41 U.S.C. §701 et. seq. This law requires all organizations contracting directly with the federal government in the amount of $100,000 or more, and all organizations receiving federal grants in any amount, to maintain a drug-free workplace. To carry this out, employers are required to publish and give a policy statement to all employees informing them that the unlawful possession or use of a controlled substance is prohibited in the workplace and specifying the actions that will be taken against employees who violate the policy. Employers must also establish a drug-free awareness program to educate employees on the dangers of drug abuse in the workplace, the policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation and employee assistance programs, and the penalties that may be imposed on employees for violating the policies. However, while penalties or participation in a rehabilitation program must be imposed upon an employee convicted of a criminal drug offense in the workplace, this law neither requires nor authorizes random drug testing of employees.

Of course, most employers would agree that it is a worthy goal to maintain a workplace free of drug and alcohol abuse, and many would agree that random or widespread drug and alcohol testing would be a useful tool in this endeavor. States and municipalities may have an even stronger desire to do this than some private businesses, given the fact that their employees conduct the public's business. Those employees need to exercise judgment and integrity; they discharge many public functions such as law enforcement and teaching, and the public needs to have confidence and trust in them. Who wouldn't want to uphold these standards in the governmental workplace?

The idea makes a lot of sense and has been implemented in some fairly high-profile ways across the country. The state of Georgia passed a law in 1990 requiring all candidates for certain state elected positions to certify they had passed a drug test within the 30 days before they filed to run for office. Ga.Code Ann. §21-2-140. The Governor of Florida signed an executive order on March 22, 2011 requiring random drug testing for all current State employees and job applicants. Fla.Ex.Order 11-58.

In 1997, the United States Supreme Court struck down the Georgia law. Chandler v. Miller, 520 U.S. 305 (1997). On the day it was signed (and virtually every day after that until this article went to press), Florida Executive Order 11-58 was deemed illegal and unenforceable by the American Civil Liberties Union and many legal scholars, and a lawsuit to prevent its implementation is expected to be filed shortly.

The problem? A little document called the U.S. Constitution.

Fourth Amendment Searches and Seizures
The Fourth Amendment to the U.S. Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…." This section guarantees the privacy, dignity and security of people against certain arbitrary and invasive acts of the government, even when the government acts as an employer. Skinner v. Railway Labor Executives' Association, 489 U.S. 602, 613 (1989); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989). Unlike private employers, who are not subject to this limitation, municipalities and other public employers must be concerned about the Fourth Amendment because, as political subdivisions of the state, municipalities are "state actors" under the Constitution.

At its core, this amendment protects a person's reasonable expectation of privacy and security against unreasonable searches and seizures. Not all searches and seizures are considered unconstitutional, only those that are "unreasonable." Skinner, 489 U.S. at 619. In the ordinary criminal context, this means that the government must have a warrant before either searching or seizing. Where there is no warrant, the government must have probable cause, meaning there is some individualized suspicion of illegal activity by that person requiring expedient action instead of waiting for a warrant. The determination of whether a search or seizure is unconstitutional depends upon all of the facts and circumstances involved. A court will balance the intrusion upon the individual's privacy interest against the degree to which the search or seizure is needed to promote a legitimate governmental interest. Samson v. California, 547 U.S. 843, 848 (2006).

The U.S. Supreme Court has solidly decided that drug and alcohol testing are forms of "searches." See, e.g., Skinner, 489 U.S. 602 (1989) (blood and urine testing for drug and alcohol use); Von Raab, 489 U.S. 656 (1989) (urine testing for drug use); Schmerber v. California, 384 U.S. 757 (1966) (blood testing for alcohol); California v. 617 Trombetta, 467 U.S. 479 (1984) (breathalyzer tests). This means that a municipality may only test its employees for drug and alcohol use in a way that is not "unreasonable" under the Fourth Amendment.

However, although there are significant limitations on what a municipality may do, there are still certain categories of employees and specific situations for which drug and alcohol testing is acceptable and does not violate the Constitution. The key is that the testing program must adhere closely to the guidelines the courts have developed, must be geared toward protecting the public's safety needs and must be properly designed and administered.

What Can Municipalities Do?
Court decisions from around the country do not agree universally on which categories of employees may be tested, but some general conclusions may be drawn.

Commercial Driver's License Testing
Under the federal Omnibus Transportation Employee Testing Act of 1991, 49 U.S.C. 31301 et seq., people who operate commercial motor vehicles (those with a total gross vehicle weight of 26,001 pounds or more, or which carry 16 or more people, including the driver, or which are used to transport hazardous materials) are required to have a commercial driver's license (CDL). Federal regulations not only prohibit the operation of any commercial motor vehicle while using drugs or alcohol, but also require employers, including municipalities, to perform drug and alcohol testing of these employees in certain situations.

These situations include (a) the first time a driver reports to work for the employer, (b) optional pre-employment testing after a conditional offer of employment is made if all prospective employees are tested in exactly the same manner, (c) post-accident testing, (d) testing upon reasonable suspicion of drug and/or alcohol use (based on specific, contemporaneous, articulable observations of the person's appearance, behavior, speech or body odors) and (e) return-to-duty testing after a violation. 49 C.F.R. Part 382, Subpart C.

In addition, CDL drivers are required to submit to random testing for drug and alcohol use. 49 C.F.R. §382.503(a). The regulations provide detailed instructions for the selection of employees for testing, the frequency of testing and the manner in which tests are to be conducted. There is also an option for states to exempt certain drivers from the testing requirements and the CDL licensing requirements. 49 C.F.R. §103(d); 49 C.F.R. §383.3(d). The state of New Hampshire has chosen to exempt fire service personnel driving emergency vehicles assigned or registered to a department or fire service organization in pursuit of fire service purposes. N.H. Admin. Rule Saf-C 1801.02(a)(1). This means that the random testing otherwise applicable to CDL drivers does not apply to firefighters who operate emergency or fire service vehicles.

Reasonable Suspicion Testing
Under the Fourth Amendment, even a search which may be performed without a warrant must be based, in most cases, on probable cause to believe that the person to be searched has violated the law. Von Raab, 489 U.S. at 667. In this context, a governmental employer must have some individualized suspicion that drug or alcohol use is taking place. While there is no single national standard for what constitutes reasonable suspicion in this situation, generally speaking, it may be said to exist when an employer has specific, objective facts, and reasonable inferences drawn from those facts, that suggest an employee is using drugs or is under the influence of alcohol while on the job. These facts might include things like observation of drug or alcohol use, apparent intoxication, abnormal or erratic behavior and reports from reliable and credible sources that drug or alcohol use is happening on the job.

Random Testing
It should be clear at this point that governmental employers may not ordinarily test their employees for drug or alcohol use without a specific reason for doing so. Federal courts have struck down purely random testing programs. One city which tried to implement a testing program for all employees argued that it had a good reason for testing all job applicants: drug abuse has an adverse impact on job performance, and children must be protected from those who use drugs or could influence children to use them. While sympathetic to the City's concern, the Ninth Circuit Court of Appeals still found the program unconstitutional. See, e.g., Lanier v. City of Woodburn, 518 F.3d 1147 (9th Cir. 2008).

However, the U.S. Supreme Court has recognized that the traditional probable cause standard is not very useful when applied to routine administrative functions, especially where the government seeks to prevent the development of hazardous conditions before they occur or to detect violations that are unlikely to generate articulable grounds for searching any particular place or person. Von Raab, 489 at 668.

As a result, employees who serve in "safety-sensitive positions" may, in certain situations, be required to undergo random drug and alcohol testing. Courts have recognized that, while these employees have a privacy right that will be invaded by such tests, the government has a stronger interest in protecting the safety of the public which justifies the use of random testing. Employees who participate in an occupation that is regulated heavily to ensure safety, or which is fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences, are deemed to have a reduced expectation of privacy with respect to drug and alcohol testing. Skinner, 489 U.S. at 630; Von Raab, 489 U.S. at 668; Keaveney v. Town of Brookline, 937 F.Supp. 975, 987 (D.Ma. 1996).

Employees who may fall under the category of "safety-sensitive personnel" include police officers and others who are required to carry firearms and/or are involved with drug crimes, emergency medical technicians, firefighters, transit employees and bus drivers. See, e.g., Skinner, 489 U.S. 602 (railway workers); Von Raab, 489 U.S. 656 (customs service officials who carry firearms and/or handle drug interdiction); Penny v. Kennedy, 915 F.2d 1965 (6th Cir. 1990); O'Connor v. Police Comm'r of Boston, 557 N.E.2d 1146 (Mass. 1990) (police officers); Keaveney v. Town of Brookline, 937 F.Supp. 975 (D.Ma. 1990) (town employees driving commercial vehicles); Piroglu v. Coleman, 25 F.3d 1098 (D.C. Cir. 1994) (emergency medical technicians).

Testing of these employees must still be reasonable, however, and narrowly tailored to respect the individual's dignity while providing an effective deterrent to drug and alcohol use. This means that the employees must be given meaningful advance notice of the testing program and information about which drugs are the subject of testing and how it will work to reduce to a minimum any "unsettling show of authority." Delaware v. Prouse, 440 U.S. 648, 657 (1979) (quoted in Von Raab, 489 U.S. at 672); Smith County Educ. Ass'n v. Smith County Bd. of Educ., Docket No. 08-0076, M.D. Tenn. February 14, 2011. The individual's privacy must also be respected to the extent reasonable. For example, an employee required to provide a urine sample should be permitted to produce the sample behind a partition or in a bathroom stall with a same-gender monitor within listening distance. Von Raab, 489 U.S. at 661.

Conclusion
While the desire to maintain a drug-free and alcohol-free workplace is understandable, it is not enough, alone, to override the Fourth Amendment's constitutional guarantee of freedom from unreasonable searches. As state actors, municipalities may only test their employees for drug or alcohol use in a manner that complies with this guarantee. The boundaries of acceptable testing are not always clear. Therefore, any municipality that wishes to conduct drug or alcohol testing of its employees is well-advised to consult with its municipal attorney for a thorough review of the testing program before it is implemented.

Christine Fillmore is a Staff Attorney with the New Hampshire Local Government Center's Legal Services and Government Affairs Department. Local officials in NHMA-member municipalities may contact LGC's legal services attorneys for more information on this and other topics of interest Monday through Friday, 8:30 a.m. to 4:30 p.m., by calling 800.852.3358, ext. 384.

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