Academic journal article Suffolk University Law Review

But See Guiney: Revisiting Mandatory Random Suspicionless Drug Testing of Massachusetts Public-Sector Safety-Sensitive Employees in Light of House Bill 2210

Academic journal article Suffolk University Law Review

But See Guiney: Revisiting Mandatory Random Suspicionless Drug Testing of Massachusetts Public-Sector Safety-Sensitive Employees in Light of House Bill 2210

Article excerpt

"[T]he unlawful obtaining, possession, and use of drugs cannot be reconciled with respect for the law. Surely, the public interest requires that those charged with responsibility to enforce the law respect it." (1)

I. INTRODUCTION

On August 29, 2007, a grease fire in West Roxbury killed two members of the Boston Fire Department. (2) According to media reports of the autopsy results, the firefighters were under the influence of alcohol and drugs at the time of their deaths, and presumably, when they responded to the fire that claimed their lives. (3) In the wake of this tragic accident, public and political support for mandatory, random drug testing of safety-sensitive personnel has grown in Massachusetts. (4) House Bill 2210--An Act Relative to Public Safety Employees (House Bill 2210)--addresses that increased concern, authorizing random drug and alcohol testing of all publicly and privately employed public-safety personnel within the Commonwealth. (5) The current debate over random drug testing of fire department personnel echoes a debate that took place almost twenty years ago over drug testing of Boston police officers--a practice the Supreme Judicial Court denounced in its deeply divided Guiney v. Police Commissioner of Boston opinion. (6)

Guiney followed several united States Supreme Court cases upholding random urinalysis testing of employees in highly regulated industries. (7) In fact, since the Supreme Court's decisions in National Treasury Employees Union v. Von Raab (8) and Skinner v. Railway Labor Executives' Ass'n, (9) state and federal appellate courts have generally upheld random suspicionless drug testing of public and private employees engaged in public safety, safety-sensitive, or other similarly conceptualized tasks, including police officers, firefighters and emergency medical technicians. (10) Mandatory, random, suspicionless drug testing, while no doubt the most controversial of any type of drug testing, has often been upheld under limited conditions, for example, when the public safety is involved. (11)

This Note will examine the short and contentious history of drug testing in the United States. (12) It will review Supreme Court precedent for upholding suspicionless drug testing of public-safety personnel, as well as state statutes and case law authorizing workplace drug testing, with a particular focus on the testing of public-sector safety-sensitive personnel. (13) This Note will examine the tension between O'Connor v. Police Commissioner of Boston (14) and Guiney v. Police Commissioner of Boston, (15) two arguably conflicting Massachusetts public-sector drug testing decisions. (16) Lastly, it will review more recent private-sector decisions to determine the current state of Massachusetts law regarding drug testing of public and private employees in safety-sensitive positions. (17) This Note will conclude by suggesting amendments to House Bill 2210, or guidelines for the Secretary of the Executive Office of Public Safety and Security, to conform to the holding in Guiney. (18)

II. HISTORY

A. The 1980s: Declaring a War on Drugs (in the Workplace)

Workplace drug testing became a national phenomenon in the 1980s. (19) Drug testing had its nascence in the military, several years prior to President Reagan's well-known declaration of a War on Drugs. (20) President Nixon directed the Secretary of Defense to initiate a drug prevention program in 1971, after increasing numbers of service members in Vietnam were found to be using heroin and other drugs. (21)

The advent of regulated testing in the workplace can be traced to around 1983, when the National Transportation Safety Board issued a series of recommendations, advocating the development and implementation of a meaningful alcohol and drug testing regime for railroad employees. (22) In 1983, President Ronald Reagan established the President's Commission on Organized Crime (Commission). …

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