Drug Testing in the Workplace and the Fourth Amendment

Introduction

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The evolving story of mandatory drug testing is complex, many-sided, and controversial. Amid national concern about illicit drug abuse, drug testing has burst upon the American scene as a controversial issue. At work and at school, thousands of individuals are tested for drugs. Some acquiesce, others refuse; acrimonious conflicts and legal actions ensue. Despite abundant criticism, drug testing has become an established part of American society (Kaufman, 1986). On the one hand, it is a relief to see something effective being done to curtail the ever-growing and worrisome problem of drug abuse. However, human rights advocates insist that drug testing is an invasion of privacy.

Even among the most vocal combatants, the battle lines in the mandatory drug testing debate are not always neatly drawn. Internal disagreements have arisen among some unions and employee groups, for example, whether to oppose or support drug testing. A drug-free, safe workplace is appealing to all employees, however, mandatory drug testing can be a control issue, a humiliating intrusion by management into a subordinate’s privacy. Neither are all employers singleminded about how strictly to enforce drug testing, who to test, and in what circumstances.

Overall, there is much about mandatory drug testing that is debatable and problematic. The issues are provocative and the implications are profound. With special reference to the aviation industry, this paper argues that the drug testing policy in this industry must be reasonable, in order to be constitutional under the Fourth Amendment. In particular, this paper discusses the recent history of mandatory drug testing in the United States, drug testing in the workplace, drug testing in the airline industry, and contentions for and against mandatory drug testing. Additionally, elements of a drug-testing program are also discussed. This paper is written for educators, substance-abuse professionals, executives of public and private organizations, and employees. In short, this paper is intended for all those who are affected by drug abuse and who desire to have a deeper understanding of the issues in mandatory drug testing.

Contemporary History of Mandatory Drug Testing in the US

In the 1950s, America became concerned with drugs that earlier were not believed to have much abuse potential. As a result, the legislation broadened to include new classes of drugs such as hallucinogenic chemicals and phencyclidine (PCP) as having abuse potential. Thus, by the end of the 1960s, legal constraints were introduced for their possession, manufacture, or sale. In this period, an “epidemic” of drug abuse began as American middle and upper class youth started experimenting with LSD, marijuana, and other hallucinogens. More and more, this same group began to use drugs known to cause dependency, such as stimulants, heroin, and cocaine. The increase in drug abuse that occurred in the 1960s can be attributed to a number of social and economic influences: the efforts by government to implement a war on crime with an anti-drug crusade, the Vietnam War, the media’s emphasis on substance use, and the baby boomers (Winick, 1973).

The increasing use of illicit drugs, especially among the young, prompted the passage in 1971 of the Controlled Substances Act. This legislation divided drugs into five categories based on addictive properties and medical usefulness, and it required pharmacists to keep records for two years of all controlled substances dispensed. Additional requirements spelled out the manner in which prescriptions are prepared and renewed. While such legislation is effective in controlling the dispensing of many substances, it cannot control the many drugs that are synthesized in underground laboratories and sold on the street (Swinyard, 1985).

It has been suggested that current drug use may be more harmful than in the past (West and Cohen, 1985). The drugs of the second half of the 20th century are more potent and better purified than the naturally occurring substances of the 19th and early 20th centuries. The introduction of numerous synthetic drugs, as well as the tendency of many people to abuse multiple drugs, has added to the danger. Additional causes of concern are the earlier age of onset of drug use, the increase in the proportion of females using drugs, including pregnant women, and the multiple lines of supplies. Concerns that current drug abuse is more widespread and that the drugs themselves are substantially more harmful to individuals and to society as a whole have sparked more intensive preventive efforts and interventions.

In March 1986, the President’s Commission on Organized Crime recommended that all employees of private companies contracting with the federal government be regularly subjected to urine testing for drugs as a condition of employment. In September 1986, President Ronald Reagan issued an Executive Order that called for the establishment of a drug-free federal workplace and for the mass drug testing of federal employees in “sensitive” positions. In 1987, the Congress passed the Supplemental Appropriations Act of 1987 as an attempt to establish uniform drug testing programs among the various federal agencies.

As for drug detection, the techniques that make it possible to conduct mass screening programs have been developed only since the 1950s (see, e.g., Hawks, 1986). Several chromatographic methods and their applications evolved during this period. Paper chromatography, which had been introduced in the 1940s, was used in the early 1960s to screen for amphetamines in urine, and by the late 1960s it was used to detect barbiturates. Also in the 1960s column absorption chromatography methods were developed to separate and purify narcotics, heroin, and barbiturates.

By the late 1960s thin-layer chromatography (TLC) had become the most widely used technique. It is inexpensive, relatively rapid, and permits the simultaneous detection of a wide range of substances in a single test run. Its sensitivity can be easily adapted for the purpose of the screening. Gas chromatography (GC) appeared in the late 1960s to identify and quantify narcotics, cocaine, codeine, barbiturates, and stimulants. Almost all drugs are amenable to GC analysis. When coupled with mass spectrometry (GC-MS) in the 1970s it could detect and identify all drugs of abuse in biologic specimens.

The methodologies developed in the 1970s include the immunoassays: free radical immunoassay (FRAT), hemagglutination inhibition (HI), enzyme-multiplied inhibition assay (EMIT), and radioimmunoassay (RIA). EMIT assays currently are being marketed as tests to be performed on-site by personnel not primarily trained as laboratory workers. They are available in a variety of kits for screening urine for amphetamines, barbiturates, benzodiazepines, cocaine metabolites, methadone, phencyclidine, morphine, propoxyphene, ethanol, and urinary metabolites of marijuana.

In clinical settings urine testing for drug use has been a routine procedure especially in emergencies when drug intake is suspected. In the middle of 1970s, screening was recommended as an aid to proper diagnosis of psychiatric outpatients. It was seen as the simplest and most efficient tool for the diagnosis of substance abuse. Screening procedures were recommended to evaluate new patients on admission and when there was diagnostic confusion (Hall et al., 1978). As drug abuse increased and more and more outpatient and inpatient treatment programs for drug dependent individuals were established throughout the country, drug screening came to be used routinely to monitor surreptitious drug use. Today, alternative biological specimens to urine are being used in drug testing. Saliva (National Clearinghouse for Alcohol and Drug Information, 2000) and hair (Huestis, 1996) can provide crucial information on drug use since many drugs are excreted into these specimens.

The US Navy started to drug test all active duty personnel after a tragic accident on the carrier Nimitz. The cause of this accident was pointed to impairment resulting from the use of illicit drugs. Also, the military instituted urine testing to identify heroin users returning from Vietnam in the late 1960s and early 1970s. Because the screening method, FRAT, was being used to detect only morphine, other drugs remained undetected. Many returnees, who knew the approximate date when they would return home, were able to pass the test by temporarily switching to methadone, barbiturates, or tranquilizers to get through heroin withdrawal. By the early 1970s the Army had extended its screening program to detect other drugs among soldiers reporting for active duty. Today the military employs mass screening of all enlisted personnel as well as civilian employees in sensitive positions.

Furthermore in the early 1970s several pilot programs were introduced to monitor patterns of drug use and the criminal activity of known drug dependent individuals. The Special Action Office for Drug Abuse Prevention (SAODAP), the Law Enforcement Assistance Administration (LEAA), and the National Institute on Drug Abuse (NIDA) began to sponsor drug-screening programs throughout the country to control the criminal activity of drug-dependent individuals (Cordova and Banford, 1975). One pilot program was sponsored by NIDA to monitor patterns of drug use in given geographic areas by introducing a urine-screening program in the jails (Richardson and Moerin, 1979).

The choice of a method depends on the need for speed, sensitivity, and specificity, as well as the need to detect a wide variety of drugs and to process a large number of specimens at a reasonable cost. The most sensitive techniques are also the most expensive to employ in detecting a large number of drugs. Currently there are scores of thousands of chemicals, including drugs, used in industry and medicine. If only a small percentage of these had the potential for abuse, the cost of a comprehensive screening program to identify and quantify them would be prohibitive. Therefore, a drug-screening program also must focus on the drugs and chemicals that are known to be abused within the community being screened.

In the 1980s, in response to public safety concerns, drug testing extended to workers in industries that are safety-sensitive and regulated by the Federal government (road transportation, maritime, railroad, aviation, petroleum, nuclear energy, and others). This was followed by drug testing for pre-employment and employment purposes, which became standard for many large private organizations and the Federal government. In the period when drug use and abuse were at an epidemic level in the US, such programs in the workplace attempted to prevent drug abuse, referred drug dependent employees to treatment, and made the drug-free workplace a high priority.

Drug testing has also entered the domain of education. Since the middle of 1990s, a lot of public and private schools all over the country have included drug testing into their comprehensive drug prevention programs. Such comprehensive programs have gained praise from many groups because they incorporate drug education and drug prevention program with mandatory drug testing and services that supply referrals to treatment. Actually, among the developed countries, mandatory drug testing is most prevalent in the US. Enforcement of legislations related to drugs and punishment of offenders are the main strategies to address drug use and abuse in America.

The American government’s dedication to address drug use problems was announced publicly by President George W. Bush on 10 May 2001. According to him: “My administration will send a clear and consistent message that drug use is dangerous and drug use is wrong.” (Prevention not Punishment, 2007, p. 1). In the program aimed at reducing drug use in the country, Bush set a two-year goal of reducing drug use by 10%, and a five-year goal of reducing drug use by 25%. In his State of the Union Address in January 2004 the President called for bigger expenditure on drug testing programs. Recent government data show that the two-year goal of reducing drug use in the US not only has been met, it has been surpassed. Despite this encouraging finding, many groups argue that mandatory drug testing is not solution. They also highlight the issue of privacy and invoke the Fourth Amendment in arguing against such testing.

 

Drug Testing in the Workplace

Over the last 25 years, employee drug testing has become common business practice in the US workplace. Current illegal drug-use by workers in the US has been monitored by national surveys since 1988. According to the National Survey on Drug Use and Health, full time employed individuals use illegal drugs at lower rates (7.9%) than part-time workers (10.7%), and that those that make up the job-applicant pool use drugs at three times (18.2%) the rate of the fully employed (Substance Abuse and Mental Health Services Administration [SAMHSA], 2004).

Many observers claim that drug abuse results in higher health care costs for employers. These costs are much more felt by small firms; the increases in health benefit costs make the difference between profit and loss. These costs inevitably lead many companies to select plans with lower benefits, to ask employees to assume more of the costs of health benefits, or to penalize those employees whose poor health care practices increase the cost of health benefits coverage. This increase in health care costs has spawned a whole new industry, the utilization-review firms that audit medical costs to prevent unnecessary treatments or overpayments.

Furthermore, drug abuse increases liability risks for employers because of the increased chance of performance impairments, which will affect customers, co workers, or the public. These can include injuries or death resulting from assaults or accidents with vehicles and equipment. The American society is increasingly litigious, in that victims are much less willing to accept these things as an unavoidable part of life and much more likely to seek financial damages through the court system. Juries are much more likely to agree. And tort law stipulates that if both the employee and the employer were responsible for the damage, judgments are levied proportionate with ability to pay rather than extent of liability.

Controlling workplace drug abuse is defended by many as one of the most rational societal policies for responding to drug abuse. For them, the best measures of persons’ ability to function in society are whether they can maintain stable social relationships and hold a job. Inability to do these things means that there is an increased likelihood they will end up in jail or a psychiatric facility. Employees who have drug abuse problems already have much to lose by continued poor job performance. If they are at all rational, they will realize that loss of a job will make it much harder to continue substance abuse without running afoul of the criminal justice system. In addition, job loss will mean loss of status and self-respect. It will mark the passage from recreational drug use to dependence, from control of the drug habit to control by the drug habit.

Employers throughout the US have responded to the problem of drug abuse by agreeing that a substance-abuse-free workplace is desirable. Then they have moved to create this by testing all applicants and, under some conditions, employees. Because random testing of all employees raises profound issues of employees’ legal rights, testing in public agencies was initiated by the federal government for military personnel. In the private sector, employers are much more able to implement testing procedures, since these employers do not have to fulfill the stricter constitutional standards to which the public employer is held. At present, workplace drug testing laboratories in the US certified by the Department of Health and Human Services are dealing with about 75 thousand specimens daily. A lot of employers who conduct employee testing programs utilize other onsite test procedures or laboratories.

The workplace drug testing phenomenon has developed slowly over more than 20 years. Presently, the majority of organizations, public and private, employ mandatory drug testing as the groundwork for a total programmatic approach to drug abuse. However, drug testing is hardly ever a stand-alone policy. According to the surveys by the American Management Association, only about 10% of participating organizations depend on drug testing alone to address the problem of employee drug abuse. Nowadays, the usual corporate program against substance abuse consists of a comprehensive effort that includes the following basic elements: drug testing, employee assistance resources, employee education, training for supervisors, and written and communicated policy (Walsh, 1995).

In reality, the drug-testing element in the corporate program is a little but a vital component of the overall effort in addressing drug problems; nevertheless, drug testing is also complicated. Organizations are now recognizing that it is also crucial for leaders to undergo training in the procedures for referring a problem employee to an Employee Assistance Program. Furthermore, employee education is a vital element of the corporate program; in general, it is considered as a nonstop ongoing effort. Additionally, in general, supervisor training encompasses major facets of company policy, what comprises policy violations and the impacts of policy violation. Finally, the written policy usually forbids the use of alcohol in the workplace, while illicit drug use is generally forbidden at all times – in or outside the workplace.

Previous studies reveal that drug testing programs are carried out differently, according to industry type and company size. For instance, in their review, Hartwell, Steele, and Rodman (1996) cite a study conducted by the American Management Association in 1987, which found that, although 43% of large corporations indicated that they test job applicants, only 16% of smaller corporations reported any type of drug testing. The authors also cite the 1988 BLS Survey of Employer Anti-Drug Programs, which revealed that about 43% of the largest worksites had drug testing programs, compared with 2% of the smallest worksites. Moreover, in the 1990 BLS survey, t was found that there was an increase in the percentage of larger companies; however, there was no significant increase in the percentage of small firms with drug testing programs.

Organizations have different drug testing policy options. These include the following: random testing of security/safety -sensitive personnel in designated positions, routine scheduled/medical testing, follow-up or treatment testing, incident or accident-driven testing, Reasonable cause/suspicion testing, pre-employment (applicant) drug testing, and universal testing of all employees which is based on a random selection. Although many corporate programs employ a combination of the aforementioned policy options in drug testing, the particular testing alternatives used by a firm will depend largely on the nature of the characteristics and work of the workforce. Organizations having a high degree of security or safety-sensitive work may use an especially aggressive program with “universal” drug testing; on the other hand, other organizations without such risks may employ the “reasonable cause” policy option.

In the discussion of drug testing in the workplace, consensus development is an important area. The rationale of why the drug test and what to do with the results of such test has radically changed over the past two decades. In the 1980s, the fundamental philosophy rationale for drug testing in the workplace was primarily to pinpoint drug users and terminate their employment them without addressing the problem. However, since then, corporations have developed a more positive “helping hand” approach to dealing with drug users. The major purpose of the current model policy is to get the drug abusing employees into treatment, provide them opportunity to get help, and to get them back at work.

Much difficulty came about with this dramatic change in rationale for drug testing in the workplace. For instance, in the middle of the1980s, there was an intense debate as to whether drug testing was legal in the first place, whether testing laboratories were skillful in performing the assays required, and whether the drug testing procedures were scientifically sound. Perhaps, the most important debate was whether the testing procedures invaded one’s privacy as to make it unconstitutional. In this period, the legal uncertainty of whether drug testing would be upheld legally so corporate programs could expand and go forward, or be found as violating the Constitution and therefore stopped, created much of uncertainty for employers, employees, unions, and policymakers.

Many of the vital issues confronting drug testing in the workplace were addressed by a series of conferences and meetings aimed at developing consensus. These were conducted through the leadership of the National Institute on Drug Abuse (Finkle, Blanke, and Walsh, 1990). These initiatives brought together labor and management policymakers and the government to confront and do something about the issues. They were also brought together to resolve what research data were available, what research must be carried out, what policies were fair, and what standards were appropriate.

In the end, the results of these conferences and meetings set standards for all government mandated programs; in a very positive way, they have also radically influenced private sector efforts. In addition, the cooperation of the labor movement in these benchmark meetings – such as the leadership of the Sheet Metal Workers, Auto Workers, Teamsters, Oil, Chemical and Atomic Workers, and others in the building trades – had positive impacts on the programs and standards that are currently in practice.

However, despite the support drug testing gets from the employers and other groups, many people in America are opposing the procedure, stating that it is unconstitutional. For them, substance abuse testing is an invasive and dehumanizing procedure which generally degrades the relationship between employer and employees. Given that this  is true, it is remarkable and depressing that major employers have adopted substance abuse testing so quickly and uniformly, especially considering its profound impact on employee rights, personnel practices, collective bargaining agreements, and other aspects of personnel management.

 

Drug Testing in the Aviation Industry

Drug abuse has not been considered to be a particularly serious problem among pilots. Airlines traditionally have enforced Rule G, forbidding the consumption of alcohol and intoxicating drugs by employees subject to duty. However, on 4 January, 1987, a severe crash occurred on Amtrak in Maryland in which drugs were involved. This compelled the Department of Transportation to implement testing procedures in various transportation-related industries, including aviation.

According to a survey carried out by the Pittsburgh Post in November 1986, during the period 1984-1986, 60 pilots from 10 different airlines were in treatment for cocaine addiction (Thoms and Dooley, 1990). In 1986, the Federal Aviation Administration (FAA) amended its rules to require that pilots submit to blood alcohol tests when required by local law enforcement authorities. Failure to submit is grounds for suspension or revocation of a pilot’s certificate or a civil penalty. In 1987, Transportation Secretary Elizabeth Dole announced her intention to promulgate regulations that would require pre-employment, post-accident, reasonable suspicion, and random drug testing. Most airlines have their own internal rules, combined with rehabilitation programs for employees who have indicated that they have a chemical dependency problem (Thoms and Dooley, 1990).

Some unions oppose drug testing. However, many airlines contend that drug testing is within the “management rights” clause and do not need union input or the decision of a system board of adjustment. The unions disagree, claiming that airlines have a duty to bargain or submit the dispute to adjustment. Unions claim that many drug programs are invasive of privacy and have the potential for harassment of employees. They see such programs as an unacceptable interjection of the employer into the private affairs of employees.

Furthermore, such programs are inconsistent in their handling of drugs. For example, an employee may smoke marijuana on Friday night and can be tested on Saturday afternoon. Although there would still be THC in his urine, there may not be any job impairment since the psychoactive effect of pot lasts only a few hours. Conversely, an employee may get drunk on Friday night and still suffer a hangover and job impairment on Saturday. In this case, however, the employee may test well because he now has insufficient level of alcohol in his urine to be classified as intoxicated.

The following case (taken from Thoms and Dooley, 1990) discusses drug testing and collective bargaining. It reaches a conclusion as to the extent to which an employer-instituted drug testing is subject for bargaining or adjustment. Independent of any federally mandated drug-testing program, airline management’s own concern may keep this problem in the forefront of labor issues for the next decade.

Allied Pilots Ass’n v. American Airlines, Inc. 132 Labor Relations Reference Manual 2230 (N.D.Tex. 1989)

FISH, District Judge:

Three Courts of Appeals have dealt with the issue of whether mandatory drug urinalysis is arguably justified by a collective bargaining agreement or the practices under it. 5 In all three, the employer had in place rules banning, the use of drugs and alcohol before the screening plan was adopted. In Burlington I, above, the union had not in the past objected to the use of breathalyzers, blood alcohol tests, and urinalyses as means by which an employee could clear himself of an accusation of violating the drug and alcohol rules. The court held that there was a history of union acquiescence in mechanical drug testing. Therefore, a dispute over the addition of mandatory drug urinalyses based on particularized suspicions of drug use was minor, and the railroad could unilaterally implement the tests.

In Brotherhood of Locomotive Engineers v Burlington Nothern Railway Company, 838 F.2d 1087 (9th Cir. 1988), (“Burlington II”), the Ninth Circuit, held that drug urinalyses for crew members involved in human-factor accidents or operating rule violations was an issue of major dispute. Employees who refused to submit were subject to discipline. The court explained that while the union had long acquiesced in the rule banning drug use (and its enforcement by sensory surveillance), it had not acquiesced in the new mandatory generalized suspicion drug tests. As a result, the new drug urinalysis program was deemed the subject of a major dispute.

In Railway Labor Executives’ Association v Consolidated Rail Corporation, 845 F.2d 1187 (3rd Cir. 1988), the employer, Conrail, added a drug screening component to the employee’s medical examinations. It has previously required physical examinations every 1-3 years, which routinely included urinalysis for blood sugar and albumin but not drugs. Moreover, Conrail had used drug urinalysis when an employee taken out of service due to a drug-related problem returned to duty and whenever the examining physician suspected drug abuse. Because the past practice was limited to drug screens for cause, and the routine urinalysis was restricted to purposes other than drug or alcohol detection, the new procedure could not arguably be justified by the contract or practices under it.

In the Northern District of Texas, Judge Buchmeyer recently addressed the issue of drug urinalysis for airline employees. There the airline sought to implement mandatory drug and alcohol urine tests after accidents and on management’s reasonable suspicion. The airline’s existing rules banned drug and alcohol use. However, neither the rules nor the contract made any provision for drug or alcohol testing. There was no past practice of routine drug urinalysis. In one specific incident, an employee was offered a drug urinalysis when sensory observation identified him as intoxicated on the job. He refused to take the test. The company disciplined him for being intoxicated, but not for refusing to take the test. Consequently, the court determined that the airline’s drug testing program constituted a major dispute.

In the present case, the Agreement itself does not deal with urine and blood tests to detect drug or alcohol use. No clause of the contract, or practice under it, can reasonably be interpreted as justifying the application of Appendix A to the members of the APA. Rules 25, 26, and 33 have historically been enforced through reliance on sensory perceptions or individual observers. Consequently, they cannot be interpreted as “arguably justifying” the application of Appendix A to the pilots. As the courts held in Burlington H and Consolidated Rail, the existence of rules banning drug and alcohol use cannot arguably justify widespread drug and alcohol testing. This is especially true in light of the fact that the rules have been enforced by sensory observation.

Moreover, the past practices under the Rules and the Agreement do not arguably justify application of Appendix A to pilots. In the past, all investigations of rule violations by pilots were conducted by a Flight Department supervisor. Under Appendix A, the decision to administer the test may be carried out by any supervisor or person in charge, such as a baggage supervisor.

In April 2006, a number of aircraft repair stations in the US sued the FAA over its policy to subject every subcontracted mechanic for drug and alcohol testing. According to FAA, it only clarified its current testing regulations, arguing that drug and alcohol testing is crucial for aviation safety. FAA’s final rule reads: “We believe the safety data showing the number of current positive test results offer strong support for this rulemaking. We do not believe we should wait until there is an actual loss of human life before we take action to ensure the remaining subcontractors who are not already subjected to testing are brought into compliance with the regulations. Only one link in the safety chain would have to fail for an accident to occur.” (Air Safety Week, 2006)

However, the Aeronautical Repair Station Association, Inc. (ARSA) strongly disagreed, stating that the new rule was a radical expansion of the current regulations. In addition, the new rule placed an unjustified economic burden on many smaller aircraft repair shops. Fortner Engineering and Manufacturing Inc., LLC, Kent, Wash.-based Pacific Propeller International, LLC, ARSA, and two individuals filed similar petitions against the FAA (Air Safety Week, 2006). The petition by ARSA viewed the new FAA rule as “irrational, unreasonable, arbitrary, and capricious” FAA (Air Safety Week, 2006). The petition stated that the new rule also violated principles of fair notice for new agency actions, exceeded the agency’s statutory authority, and abridged the petitioners’ rights under several federal laws, such as the US Constitution (Air Safety Week, 2006).

According to Marshall S. Filler, ARSA’s managing director and general counsel, there is no need to test subcontractors for drug and alcohol; certificate holders like repair stations and the airlines are already responsible under the terms in Part 145 of FAA regulations for the airworthiness of repair work. In addition, Mike Gonzales, regional flight standards assistant with Professional Airways System Specialists (PASS), stresses that the new FAA rule is redundant (Air Safety Week, 2006). Moreover, ARSA was also wondering about the FAA statement in the late 1980s that subcontractors would not have to be tested for substance use. Another inconsistency with the new drug testing rules, which, according to Filler, now apply to routine maintenance and preventive maintenance, but not to new manufacturing, rebuilds or alterations: “So if you think about the whole safety rationale FAA is using, you have to shake your head about what’s so important from the safety standpoint.” (Air Safety Week, 2006)

Drug Testing and the Fourth Amendment

Drug abuse testing by employers in both the public and private sectors has traditionally been circumscribed by constitutional protections. The Fourth Amendment of the US Constitution provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

Blood, urine, and saliva tests easily qualify as “searches” under the Fourth Amendment. Historically, employees were protected against “unreasonable” searches by the requirement that the employer show individualized suspicion – “just cause” that the employee was a substance abuser, such as a critical performance incident or substance impairment. The critical distinction between private- and public-sector employers is that the private sector is not bound by constitutional restrictions against violation of privacy and due process. Constitutional rights restrict the actions of federal, state and local governmental entities only, and thus the actions of private employers in drug-testing cases ordinarily escape constitutional scrutiny.

The “right to privacy” is one of the major defenses used against drug testing in the workplace. Basically, Americans hold two contrasting notions of the “right to privacy”. The first is the common notion defined by each individual’s personal belief of which aspects of his or her life are private and, being private, are not subject to intrusion by others. The second notion is the constitutional “right to privacy”; this is the right to privacy that is legally enforceable and which protects far fewer activities than the average person’s notion of privacy rights.

This constitutional right to privacy has been held to protect individual decisions on matters such as marriage, family, and childbearing. While the use of marijuana, cocaine, and other abusable drugs unfortunately has become commonplace, it never has been held to come within that zone of activities protected by the constitutional right to privacy. Additionally, this constitutional right to privacy protects people only against governmental intrusion. Individuals acting as private citizens and private employers are not bound by these constitutional restraints. However, private employers should develop drug-testing programs that comply not only with a legally enforceable right to privacy but also a reasonable worker’s notion of a right to privacy.

While the term “right to privacy” often appears in media reports of challenges to employee drug testing, the fact is that most court claims of an invasion of privacy have been based on the Fourth Amendment prohibition against unreasonable searches and seizures by government authorities. Plaintiffs assert that urine testing intrudes so far into an employee’s privacy that it constitutes an unreasonable search in violation of the Fourth Amendment. Workers raise this argument not only against government employers, but also against private employers. Once again, however, the constitutional protection against unreasonable searches protects only against unreasonable governmental interference. When a private business is testing its employees for drugs, there is no government involvement and therefore no violation of this constitutional guarantee against unreasonable searches.

It is important to note, however, that courts may apply this standard to private employers when they are operating under a government contract or when they are part of a highly regulated industry. In these cases, private sector employees may also be allowed to assert the Fourth Amendment right against unreasonable search and seizure. Public employees can claim this constitutional right. Nevertheless, several courts have found that even government employees, performing certain duties, have less of a right to expect privacy than do others and therefore cannot maintain that a drug test is an unreasonable search.

Testing of other government workers has withstood recent challenges that it violates the Fourth Amendment. In March 1987 a federal district court in Alaska ruled that while urine testing for drugs of certain FAA employees was a Fourth Amendment search, public safety considerations outweigh the intrusion upon petitioners’ legitimate expectation of privacy. In other words, this court determined that the testing of these employees for drugs of abuse was not unreasonable in light of their responsibilities in ensuring the safety of the traveling public.

The following are the elements of a drug-testing program: justification, place, employment relationship, purpose of search, availability of less intrusive measures, and effectiveness. While compliance with each of these factors may not guarantee judicial support for an employer’s drug abuse program, being aware of these principles may assure both employees and the courts that a fair and reasonable approach has been taken.

Justification relates to the initial threshold question: Why do you want to test your employees? In the case of the aviation industry, it is important that personnel are tested for drug use since the nature of work, which is safety sensitive and has a high degree of security risk. In general, in justifying a drug-testing program, employers should consider the purpose of their industry or type of business, the role of employees scheduled for testing, and the level of public trust in the industry or business.

A private restroom is the most practicable location at which to obtain a specimen for testing pilots and other aviation personnel. Again, employers should be sensitive to the privacy expectations of employees and develop procedures that minimize any embarrassment or perceived indignity. Behavior indicating an attempt to subvert the testing process may justify greater intrusiveness in order to obtain accurate results.

The principle of employment relationship considers the Fourth Amendment protection afforded government employees and related limits on permissible searches by the government. Employers cannot undertake searches of its people simply by making consent a condition of employment. In particular, the search must be a reasonable condition of employment. Furthermore, an employer in the air transport sector must not wait for evidence of drug use to test for drugs. As one case puts it, it is reasonable to set traps to keep foxes from entering hen houses even in the absence of evidence of prior vulpine intrusion or individualized suspicion that a particular fox has an appetite for chickens.

As discussed earlier in another context, the need for protection against governmental intrusion diminishes if the investigation is neither designed to enforce criminal laws nor likely to be used to bring criminal charges against the person investigated. The drug-testing program in the air transport sector should serve as a purely administrative purpose; it should not intend to be used to punish employees. Also, it must ensure that the need for drug testing outweighs the intrusiveness of such a test.

The question regarding the availability of less intrusive measures is not limited simply to the availability of other means to obtain information about employee drug use, but includes rather the reasonableness and efficacy of these alternate sources. Do they provide a basis on which to evaluate the employees’ integrity and reliability should they be assigned to work in sensitive positions. Employers in the aviation sector would do well to use less intrusive measures if they provide timely, accurate, and comparable information.

The air transport industry must recognize that no privacy invasions should be permitted unless some good end is served. Additionally, employers should ask themselves if their existing or planned drug-testing program meets the needs for which it was designed. Unreasonable or over-reaching aspects of a program obviously are susceptible to legal challenge.

Other drug-testing program elements include the following: use of least intrusive, most effective means; use of reliable test procedures; opportunity for retesting of specimen; use of pre-test questionnaire covering current drug use, which remains sealed unless confirmatory drug test is positive; strict chain-of-custody; sensitive or critical nature of subject employees’ responsibilities; inclusion of drug test as part of existing periodic physical examination that includes urine specimen; rehabilitative purpose of program; and appropriate advance notice of the drug testing program. In one of FAA’s cases, the court agreed, noting the abovementioned factors, with the FAA that the legitimate privacy expectations of the flight service specialists were outweighed by the national interests in air safety and the public’s perception of safety.

As for the recent legal battle confronting FAA over its new rule extending drug testing beyond to subcontractors, it has been argued that the new rule satisfies the Fourth Amendment, and is a appropriate exercise of the agency’s statutory authority under the Administrative Procedure Act. In Aeronautical Repair Station Ass’n v. FAA, 494 F.3d 161 (D.C. Cir. 2007):

….[T]he petitioners assert that the employees subject to testing are “ordinary citizens.” The same is true, however, of the employees of certificated air carrier contractors and subcontractors and was true of the civilian employees in National Federation. Yet the petitioners do not suggest these groups may not constitutionally be tested.

…[T]he petitioners argue… that the additional testing “simply ‘is not needed’” in light of the airworthiness testing all aviation components undergo before being placed in service….We reject this argument…[b]ecause of “the quintessential risk of destruction to life and property” posed by substance impaired lapses by maintenance workers at any tier, the testing is justified under National Federation.

Overall, the drug-testing program that includes the elements discussed in this section will be most effective, not simply because it can withstand legal challenges but because the presence of these elements should increase the level of employee trust and cooperation. Likewise, public faith in and acceptance of drug-testing programs should be strengthened as more companies use these programs and document their effectiveness in terms of a safer and more productive workplace and improved public safety record.

Summary

A drug testing program is perhaps the most intrusive and emotionally charged program/policy for employees. Such programs are usually met with intense criticism from those upholding the right to privacy. However, despite opposition among consumer and labor groups and a lack of thorough empirical evidence about its effectiveness, drug testing has remained popular with the employers in the United States since the 1980s. Particularly referring to the air transport sector in the US, this paper showed that drug policies in the workplace must be reasonable, in order to be constitutional under the Fourth Amendment of the US constitution. The elements of a drug-testing program presented in this paper may be used by the air transport sector as guideline in implementing drug testing programs.

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