Court's Rulings on Testing Crack Down on Drug Abuse

By Aalberts, Robert J.; Rubin, Harvey W. | Risk Management, March 1991 | Go to article overview
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Court's Rulings on Testing Crack Down on Drug Abuse

Aalberts, Robert J., Rubin, Harvey W., Risk Management

New issues have ingrained themselves into American society as deeply as drug abuse. In the workplace drug abuse is a particularly vexing problem, one that businesses are fighting with increasing ferocity.

In March 1989 the U.S. Supreme Court issued two far-reaching decisions on drug testing in the workplace. Skinner v. Railway Labor Executives Association and National Treasury Employees Union v. Von Raab dealt with drug testing schemes for railroad and U.S. customs workers, respectively. The implications of these cases appear to give certain employers, including those in the private sector, greater latitude in testing workers. Employees, however, including union workers who thought they were contractually protected, may have legitimate concern that their privacy rights are eroding.

The Skinner and Von Raab Cases

Federal constitutional protections from illegal governmental conduct afforded workers in the public sector generally do not apply to the private sector. Under the Fourth Amendment, government workers are protected from unreasonable search and seizure, including how drug testing can be conducted. The Fifth Amendment protects federal, state and local workers from illegal governmental conduct. In Skinner, however, the issue of what constitutes governmental conduct necessary for constitutional protections has become clouded.

In 1983 the Federal Railway Administration promulgated regulations that required railroads to conduct urine and blood tests on their workers following major train accidents or incidents. Workers who violated safety rules could also be tested, but this was not required. The regulations were subsequently challenged under several legal theories. One theory argued that because railroads were privately owned, government action, including applying the Fourth Amendment, could not be controlling. Therefore, federal regulations could not legally supersede any collective bargaining agreement or arbitration awards interpreting the agreement.

The Supreme Court in Skinner disagreed, ruling that railroads "must be viewed as an instrument or agent of the government" and therefore must comply with the railway administration's regulations. Because administration regulations pre-empt state laws under the Constitution's supremacy clause and supersede any private agreements, federal law, including the Fourth Amendment and other relevant constitutional provisions, would apply to the railroad's drug testing scheme. In addition, the departments of Defense and Transportation have issued similar regulations to those ruled on in Skinner and Von Raab. These regulations will affect contractors who do business with these entities or who are subject to their regulations.

Three of the most controversial drug testing impediments have been whether testing should be permitted when there is no perceived or documented drug problem in the workplace, if the testing methods are reliable and whether a positive test proves there was on-the-job impairment. The Von Raab case addressed all three concerns. In the case, the U.S. Customs Service implemented a drug-screening program that required urinalysis for employees desiring a transfer or promotion to positions that were directly involved in drug interdiction, where carrying a firearm was necessary or where classified material was handled.

Under this scheme, the employee would be notified of testing and that subsequent transfer or promotion would depend on passing the test. Procedures for collecting, analyzing and protecting the employee's privacy were contained in the program. Under the Customs Service program, only five out of 3,600 employees tested positive. This prompted the Treasury Employees Union to argue that such an insignificant number gives rise to a "suspicionless search" that is not a "sufficiently productive mechanism to justify [its] intrusion upon Fourth Amendment interests."

The Supreme Court was unmoved by this argument.

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