Skinner and Von Raab

In Skinner the Supreme Court was faced with a challenge to the constitutionality of the Federal Railroad Administration's (FRA) mandatory and permissive alcohol-and drug-testing procedures. Testing for drugs and alcohol was mandatory after a major train accident involving (1) a fatality, (2) the release of hazardous materials accompanied by evacuation or reportable injury, or (3) damage to railroad property of $500,000 or more. Furthermore, blood and urine samples had to be collected after an "impact accident," one that resulted in a reportable injury or in damage to railroad property of $50,000 or more. Finally, a railroad had to test after "any train incident that involves fatality to any on-duty railroad employee." If an employee declined to give a blood sample, the railroad could presume impairment, absent persuasive contrary evidence.

The Court, in a 7-2 decision, upheld the regulations. The majority began by holding that a search conducted by a private railroad under the auspices of a federal regulatory agency constituted state action under the Fourth Amendment. The Court next found that both the collection of blood, urine, and breath and the subsequent chemical analysis of these substances constitute searches for Fourth Amendment purposes. But, having found that the testing program was a search within the meaning of the Fourth Amendment, the Court analyzed the FRA's drug-testing requirements under the reasonableness test used for administrative searches rather than by reference to the law enforcement standard of probable-cause or a lesser standard of reasonable suspicion.

The administrative search standard required the reviewing court to balance the governmental interest served by the testing program against its intrusiveness. Just as the adoption of this balancing test was significant, so was the way the Court weighed the factors in the case before it. In assessing the infringement of privacy involved in blood, urine, and breath testing, the Court pointed out that railroad employees already consent to significant restrictions on their freedom of movement and that "any additional interference with a railroad employee's freedom of movement that occurs in the time it takes to procure a blood or breath sample for testing cannot, by itself, be said to significantly infringe on privacy interests." While the urine test raised greater privacy concerns, the fact that urine collection did not involve visual monitoring and that it took place in a medical setting led the Court to conclude that the infringement of privacy was not significantly greater. Finally, the Court argued that, since railroads have long been a heavily regulated industry, their employees must expect greater intrusion. "Though some of the privacy interests implicated by the toxicological testing at issue reasonably might be viewed as significant in other contexts, logic and history show that a diminished expectation of privacy attaches to information relating to the physical condition of covered employees and to this reasonable means of procuring such information" (489 U.S. 602, 628).

Perhaps the most significant indicator in Skinner of how the Court might rule in future cases was its assessment of the government's interests served by testing. The Court deferred substantially to the FRA's claim of alcohol or drug problems on railroads, although there was only weak factual support for that claim in the FRA's data on accidents over a 20-year period. Almost all drug-related railroad accidents were alcohol-related, but the Court, like the agency, spoke of "alcohol and drugs" in a single breath: "… the government's interest in testing without a showing of individualized suspicion is compelling."

Employees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences. Much like persons who have routine access to dangerous nuclear power facilities, employees who are subject to testing under the FRA regulations can cause great human loss before any signs of impairment become noticeable to supervisors or others (489 U.S. 602, 628).

The dissenters argued that the approach that led the Court to accept postaccident drug testing in this case would likely lead to a broad acceptance of drug testing in many contexts. Their point seems to be supported by the Court's holding in Von Raab, the companion case to Skinner.

In Von Raab, a union of federal employees and a union official challenged the U.S. Customs Service's drug-testing program, which made drug tests a condition of promotion or transfer to positions that met one or more of three criteria: (1) direct involvement in drug interdiction or the enforcement of related laws, (2) the carrying of firearms, or (3) the handling of classified materials. Employees who tested positive for drugs and offered no satisfactory explanation were subject to dismissal. However, test results could not be turned over to any other agency, including criminal prosecutors, without the employee's consent.

The Customs Service characterized drug interdiction as its primary enforcement mission and argued that "there is no room in the Customs Service for those who break the laws prohibiting the possession and use of drugs." While no serious drug problem had been uncovered within the Customs Service, the implications of such a problem, if it did arise, were offered as a justification for a wide-ranging drug-testing program.

The Supreme Court, this time by a 5-4 vote, once again held that neither probable-cause nor reasonable suspicion were needed to test government employees in "sensitive" positions. Justice Kennedy wrote: "Our precedents have settled that, in certain limited circumstances, the Government's need to discover … latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting such searches without any measure of individualized suspicion" (489 U.S. 656, 668).

The Court's opinion emphasized the job demands in the Customs Service that would be specially threatened by employees who used drugs. Thus, the Court noted that "the physical safety of these [Customs] employees may be threatened, and many may be tempted not only by bribes from the traffickers with whom they deal, but also by their own access to vast sources of valuable contraband seized and controlled by the Service" (id. at 669).

The reasonableness test adopted in Skinner and Von Raab requires courts passing judgment on drug-testing programs to balance the intrusion on tested individuals against the government interests served by the test. While this standard is easy to articulate, it has no clear meaning. In Skinner the standard justified the testing of employees in highly safety-sensitive positions, predicated on suspicious circumstances. The Court's deference to the FRA's safety concerns suggest that drug testing throughout the transportation industry and in other areas in which safety concerns are easily and plausibly invoked, such as fire departments and public utilities, will be upheld against Fourth Amendment challenges, at least so long as the testing program is required of employees in safety-related positions and no more intrusive than the urine testing in Skinner. Von Raab extends Skinner's permission for warrantless searches to situations in which there is no reason to believe that drug use has been a problem and to employees whose performance will not necessarily be adversely affected by drug use.

Justice Scalia's dissent in Von Raab suggests the potential scope of this case:

[In] extending approval of drug testing to that category consisting of employees who carry firearms, the Court exposes vast numbers of public employees to this needless indignity. Logically, of course, if those who carry guns can be treated in this fashion, so can all others whose work, if performed under the influence of drugs, may endanger others—automobile drivers, operators of other potentially dangerous equipment, construction workers, school crossing guards. A similarly broad scope attaches to the Court's approval of drug testing for those with access to "sensitive information."

Since this category is not limited to Service employees with drug interdiction duties, nor to "sensitive information" specifically relating to drug traffic, today's holding apparently approves drug testing for all federal employees with security clearances—or, indeed, for all federal employees with valuable confidential information to impart. … Moreover, there is no reason why this super-protection against harms arising from drug use must be limited to public employees; a law requiring similar testing of private citizens who use dangerous instruments such as guns or cars, or who have access to classified information would also be constitutional" (489 U.S. 665, 686, 1989).

It seems likely that law enforcement agencies will see the Court as having approved drug testing for all employees who carry firearms. Many other agencies will take Von Raab as approving drug testing for all employees who have any access to "sensitive information." In addition, law enforcement agencies may attempt to justify drug-testing programs solely on the basis of a claimed need to assure the public that there are no drug users serving in their ranks.

Two other aspects of Skinner and Von Raab are worth noting. First, in neither case was the urine sample subject to visual observation. The need for reliable drug testing might have to be greater than it was in one or both of these cases to justify a drug-testing program that required an employee to urinate in the presence of an observer. Second, in each case only certain employees defined by the nature of their job responsibilities were required to provide urine samples. Agency-wide drug testing programs remain constitutionally suspect.

Applying the Reasonableness Standard

While Skinner and Von Raab opened the door to substantial drug testing, several cases that have since been decided in the Federal Courts of Appeals indicate that the courts will scrutinize the constitutionality of drug-testing programs and that lower court judges do not see Skinner and Von Raab as eliminating all constitutional barriers to governmentally mandated drug testing.

For example in Harmon v. Thornburgh (878 F.2d 484, D.C. Cir. 1989, Cert. denied 493 U.S. 1056, 1990), a case brought by the U.S. Department of Justice employees challenging that agency's drug-testing program, the D.C. Court of Appeals read Von Raab as "suggesting that the government may search its employees only when a clear, direct nexus exists between the nature of the employee's duty and the nature of the feared violation." Applying this standard, the court upheld random testing for employees with access to top secret classified information and suggested that the drug testing of drug prosecutors would be permissible. However, the court held that the government's interests in work force integrity, public safety, and protection of sensitive information did not, for Fourth Amendment purposes, make reasonable a plan for randomly testing employees in less sensitive positions, including Antitrust Division attorneys. The appellate court also rejected the department's plan to test all criminal prosecutors and all employees with access to grand jury materials. In a later case, a different panel of the D.C. Court of Appeals, in evaluating the U.S. Department of

Defense's drug-testing program for civilian employees, distinguished between laboratory personnel on one hand (random testing not allowed) and aviation workers, police guards, and drug counselors on the other (random testing allowed) (National Federation of Federal Employees v. Cheney, 884 F.2d 603, D.C. Cir. 1989, Cert. denied, 493 U.S. 1056, 1990). In a similar vein the Seventh Circuit Court required the Cook County Department of Corrections to limit its unannounced drug-testing program to employees with regular prisoner contact, with opportunities to smuggle drugs, or with access to firearms (Taylor v. O'Grady, 888 F.2d 1189, 7th Cir. 1989). The D.C. Circuit Court has, however, upheld the testing of mail van operators, not because of safety risks but on the rationale they are vulnerable to blackmail (American Federation of Government Employees v. Skinner, 885 F.2d 884, D.C. Cir. 1989, Cert. denied, 495 U.S. 923, 1990), and it has upheld the urine testing, without probable-cause, of a person who had been tentatively accepted for employment by the Department of Justice's Antitrust Division (Willner v. Thornburgh, 928 F.2d 1185, D.C. Cir. 1991).

The Private Sector

Private businesses are not subject to the strictures of the Fourth Amendment unless their testing programs are mandated by law. Thus the factors that lead courts under the Fourth Amendment to approve or disapprove of drug-testing programs in the public sector will not in themselves validate or undermine the drug-testing programs that private businesses establish at their own initiative. The other two dichotomies that we have mentioned, the distinction between pre-and postemployment drug testing and the distinction between state and federal law, do play an important role here. Generally speaking, both public and private sectors have considerably more leeway in establishing preemployment drug-screening programs than they do in establishing postemployment drug-testing programs.

In the private sector, the potential limitations are greatest among the unionized segment of the work force. This is because the National Labor Relations Board has held that the institution of a drug-testing program for current employees constitutes a "material change" in the employees' working conditions that is subject to collective bargaining (Johnson-Bateman Co., 295 N.L.R.B. No. 26, June 15, 1989), but it has reached the opposite conclusions with respect to preemployment programs (Star Tribune, 295 N.L.R.B. No. 63, June 15, 1989). This means that preemployment drug-testing programs may take whatever form management prefers, but postemployment testing of unionized employees is subject to negotiations that usually produce compromise programs, often restricting the testing of employees to cases of reasonable suspicion and almost always mandating treatment rather than discipline as the initial response to positive test results. Also, it is possible for employees in unionized industries to file grievances regarding certain characteristics of drug-testing programs. Arbitrators have struck down drug-testing programs on such grounds as (1) the testing procedures were not accurate, (2) a testing program was not within the employer's prerogative, and (3) the testing program was not reasonable given the lack of evidence of a workplace drug problem. But as unions and management agree on the details of such programs and as drug testing in the workplace becomes more common, such decisions are increasingly rare (Hopson, 1986; Veglahn, 1988; Labor Relations Week, 1989).

In the nonunionized sector, existing employees, but not job applicants, may benefit from the erosion that has been occurring in some jurisdictions in the "employment at will" doctrine; that is, the rule that gives employers wide latitude in dismissing employees for any reason that is not prohibited by law. This body of law is beginning to change so that in certain situations courts will hold that dismissals for certain reasons are against public policy. Given the national policy against drug use, employees to date have had little success in claiming that discharges based on positive drug tests violate public policy, but one court did indicate that a firing in contravention of a state statute regulating workplace drug testing would be against public policy (Johnson v. Carpenter Technology Corp., 723 F. Supp. 180, D. Conn. 1989).

Private employers may be reluctant to fire employees who refuse to submit to drug testing if they will be held liable for that employee's unemployment compensation. A discharged employee is not eligible for unemployment compensation if she was fired for misconduct, but her refusal to obey an employer's rule is held to constitute misconduct if and only if that rule was reasonable as applied to her. Although no court has held that an employer's drug testing must conform to the Fourth Amendment to be reasonable, courts have found drug testing predicated solely on unsupported allegations to be unreasonable. Testing based on "suspicious behavior" has, however, been found reasonable (Annotation "Private Employee's Loss of Employment Because of a Refusal to Submit to a Drug Test as Affecting Right to Unemployment Compensation" 86 A.L.R. 4th 309, 1991).

In a related area, courts and unemployment boards generally uphold the denial of unemployment benefits to employees fired because of arrest or conviction for off-the-job drug possession, on the grounds that the employees have not become unemployed "through no fault of their own," as most applicable statutes require. Recent cases have also upheld denial of compensation to school teachers and job counselors on the grounds that drug possession is a form of misconduct incompatible with their responsibilities. Other cases have required compensation when the statutory exclusion covered only employees discharged for misconduct "in connection with … employment." A workplace drug test may reveal misconduct that warrants discharge without compensation. One recent decision found that a bus driver was not entitled to compensation after discharge for a positive drug-test result, since by coming into the office during his vacation to report an earlier accident, he violated a company ban on employees having drugs in their system while on the premises (Shaw v. Unemployment Compensation Board of Review, 539 A.2d 1383, Pa. Comwlth 1988. See also Annotation "Jobless Pay—Off-Duty Conduct" 35 A.L.R. 4th 691, Secs. 5,8, 1991 Supp.).

Employees and Applicants

The preemployment/postemployment distinction is important in the public sector as well, for it is a factor that may bear on the constitutionality of a drug-testing program. One reason relates to the property interest that an individual may be seen to have in the expectation of continued employment and the protection that due process gives such interests. Another reason relates to the reasonableness of a drug-testing program. One factor that might lead a court to find a preemployment drug-testing program reasonable whereas a postemployment program would not be is that an employer cannot observe an applicant at work and so has little basis apart from a drug test for determining whether his or her work might be impaired by drug use.

A pair of cases from the D.C. Circuit indicate the potential importance of the distinction. In Harmon v. Thornburgh (878 F.2d 484, D.C. Cir. 1989, Cert. denied 110 S. Ct. 865, 1990) the appellate court held that a drug-testing program for current Justice Department employees could not include, among others, the department's antitrust lawyers because there was an insufficient nexus between their work and drug use to justify the privacy invasion. (The same decision upheld the testing of prosecutors who handled drug cases.) In Willner v. Thornburgh (928 F.2d 1185, D.C. Cir. 1991) a different panel of the same court approved a program that required an applicant for a position with the department's Antitrust Division to submit to a drug test. An important rationale for this decision was that the Fourth Amendment precludes only unreasonable intrusions on privacy, and the fact that applicant drug testing is common in the private sector "is some indication of what expectations of privacy society is prepared to accept as 'reasonable' (id. at 1192-93)." If this rationale were generally accepted, it could eliminate the importance of the public-private distinction with respect to job applicants, as private-sector behavior unconstrained by the Fourth Amendment would ultimately determine what were reasonable expectations of privacy under the Fourth Amendment. At least some other courts, however, have relied on Harmon in job applicant cases and have not made this bootstrap argument (Georgia Ass'n of Educators v. Harris, 749 F. Supp. 1110, N.D. Ga. 1990).

State Law

The third distinction that we alluded to at the outset is between state and federal law. When federal law, including the valid regulations of federal administrative agencies, mandates drug testing, that testing is required, regardless of any state law to the contrary, so long as it is otherwise constitutional. A federal agency testing its own employees pursuant to federal law is similarly unaffected by state legal restrictions. However, private entities and state agencies may in particular states be barred by state law from engaging in drug testing in circumstances in which federal law and the U.S. Constitution pose no legal barriers.

State legal barriers may arise because identically worded state and federal constitutional provisions are interpreted differently by the state and federal supreme courts, because state constitutions may protect rights that are not explicitly protected in the U.S. Constitution, and because state legislatures may enact statutes that relate specifically to drug testing.

Ten states have explicit constitutional rights to privacy, and most other states have recognized an implicit right to privacy in their constitutions (Silverstein, 1989). California courts interpret their explicit constitutional provision to apply to private as well as public employers. California constitutional law requires a showing of "reasonableness" for preemployment drug testing and of "compelling interest" for postemployment testing. In 1987, a California appellate court affirmed a $485,000 jury award for wrongful discharge to a programmer for the Southern Pacific Railroad, who had been fired for refusing to provide a urine sample for drug testing. The court held that the railroad lacked a safety interest strong enough to justify testing. Not all states, however, would apply constitutional privacy provisions to private actions (The Alaska Supreme Court, for example, has held that its constitutional right to privacy only protects against state action and could not be violated by a private employer's drug-testing program. Luedtke v. Nabors Alaska Drilling, Inc., 78 P.2d 1123, 1989) and, in another California case, a state appellate court held that preemployment drug and alcohol testing through urinalysis was not so intrusive as to violate that state's constitutional privacy protection (Wilkinson v. Times Corp., 215 Cal. App. 3rd 1034, Cal. App. 1 Dist. 1989).

At least seven states have legislation that restricts the right of employers to order their employees to submit to mandatory urinalysis for purposes of identifying or deterring illegal drug use. Montana, Iowa, Vermont, and Rhode Island have banned all random or blanket testing of employees (without probable-cause or reasonable suspicion) and Minnesota, Maine, Connecticut, and Oregon permit random testing only of employees in safety-sensitive positions or otherwise limit the circumstances in which employees can be tested. These states also mandate confirmatory testing, certified laboratories, confidentiality of test results, and other procedural protections. Louisiana, Maryland, Nebraska, and Utah also regulate test procedures and protect the confidentiality of test results, but they do not limit the circumstances in which employees can be tested. In addition, several municipalities, including Boulder, San Francisco, and New York, have ordinances that restrict workplace drug testing for some employers. Municipal restrictions are valid to the extent that they do not conflict with applicable state or federal law.

Fearing that a patchwork of restrictive laws would deter employers, especially multistate employers, proponents of drug testing have sought to create national standards for drug testing through federal laws that preempt state and local legislation. With the enactment of OTETA, with a strong preemption provision, they have gained a major victory in the transportation field. Parts of the Vermont and Rhode Island statutes have already been held to be preempted by federal regulations; other state statutes explicitly defer to conflicting federal laws and regulations.