Federal Restrictions on Random Testing

Contributed by County Technical Services, Inc.
By Cynthia Barnes, Esq.

The Drug-Free Workplace Act of 1988 requires some federal contractors and all federal grantees to provide drug-free workplaces as a condition of getting grants or contracts from a federal agency. Most states also require this as a condition of receiving state grants or contracts, which are often fully or partially funded with federal funds. This act doesn’t apply to any local government which does not intend to apply or already have federal funds.

For local governments, the standard advice on implementing drug testing has to be supplemented by special rules for Random Testing. Random Testing has always been more strictly regulated due to the Fourth Amendment (unreasonable searches and seizures) and due process clauses of the U.S. Constitution. Local governments are subject to rules that may not apply to similarly-sized private employers who are not in “interstate commerce”. If the rules on Random Testing are disregarded, the local government may have to defend their Random Testing provisions against lawsuits based on claims that they are overly broad or not reasonable.

These additional Random Testing rules apply regardless of state law. No state law, nor the interpretation of a state court judge, can supersede the Federal Constitutional cases which lay the groundwork and legal procedures for Random Testing. Post-accident and Return to Work testing do not pose as much of a problem because for the most part, they are and should be, based on “Reasonable Suspicion” justifications.[1] Pre-hire testing does not usually implicate the Due process rights because applicants are not given the same status as employees. However they are subject to the “special conditions” proof test if challenged[2].

If a Random Testing policy, standard, or process is found to be a violation of the Fourth Amendment or Due Process Clauses of the U.S. Constitution, it would be consistent with a long line of federal cases requiring that terminations of employees in safety sensitive positions be given similar federal Constitutional protections.[3] The foundation for challenge proof drug testing is the Special Needs tests applied in both random testing and in other types of testing.[4]

Three Fundamental Guidelines for Public Employee Drug Testing

So what guidelines must be followed to avoid having your testing policies and practices overturned by legal action?

  1. Public employers may ask any employee to take a drug-test where the employer has reasonable individualized suspicion that the employee is using illegal drugs or using prescription drugs illegally.
  2. Public employers may only require random drug-testing of employees in designated safety-sensitive positions[5]. Safety sensitive means those whose primary duties are likely to endanger the public or other employees if they are under the influence.
  3. A public employer may require post-offer, pre-employment testing for illegal use of drugs whether prescription drugs, or on the controlled substances list. The applicant must be given an opportunity to declare and identify any legal prescriptions which he or she may be using without that information being used to discriminate on account of medical disability or other lawful protection.

What and How Much to Test for?

There are many substances other than marijuana that are typically tested for in a drug test. The standards for the tests must be based on sound scientific practice as one indicia of being “reasonable”. I.e., these are not random witch hunts based on superstition. Even the testing labs are closely regulated by the government so that the evidence produced is valid. Each finding must be scientifically valid to hold up in court.[6]

Fundamental Rules for Random Testing on the Job

  1. Randomness means statistically random, not arbitrary. The process requires anonymous selection of test candidates from an established pool based on mathematical formulae.
  2. Tests cutoffs must be based on a job related cutoff level: alcohol tests use standards that correlate with actual levels of impairment.[7]
  3. Random testing is strictly limited to pre-defined job groups with essential duties that are safety sensitive.
  4. The question of whether or not a detected level of any substance tested for is from a prescribed drug, an illegal drug, or another combination of supplements, food, and so forth, is a medical and pharmacological determination subject to medical practice standards and research.
  5. The labs used, contracted for services, and procedures specified for the samples must comply with procedural reliability and be subject to challenge by using some form of double samples or testing.

Some Definitions of Safety Sensitive

  1. A position where the duties involve “such a great risk of injury to others that even a momentary lapse of attention can have disastrous consequences”.
  2. A position where a single slip-up may have “irremediable consequences; the employee himself will have no chance to recognize and rectify his mistake, nor will other government personnel have an opportunity to intervene before harm occurs.
  3. Because only safety sensitive positions pose a sufficient legal threat to safety, there is no compelling government interest in random testing any employees whose positions are not safety-sensitive. No other employee can be asked to undergo random drug-testing. Requiring Random Testing of a non-safety sensitive position violates the Fourth Amendment and could be overturned upon a legal challenge. [8]

How to Determine Safety Sensitive Positions

The courts, and therefore the employer, must focus on whether a particular position has duties that, if performed improperly or carelessly, would pose an immediate threat to the health or safety of humans.   The duties, if performed improperly, must create “such a great risk of injury to others than even a momentary lapse of attention can have disastrous consequences”. Examples of such jobs have included workers attending oil refinery controls, employees running high speed trains or transit operations, workers hauling loads on the interstate highways that exceed a certain weight or contain flammable or hazardous materials, employees who work in munitions and explosives factories.

Employees who have been considered NOT safety sensitive include a secretary who drives a car occasionally for work[9], an employee whose duties do not include an ‘unusual’ degree of danger to others[10], or employees in trades such as carpenters, painters, and plumbers who just happen to work in a safety sensitive industry or plant because they were subject to sufficient supervision[11].  The problem of local liability is, each job is fact specific and it is the employer who will have to justify, establish a basis for the determination, and defend the designation of “safety sensitive” in court should the classification be challenged. Particular subject to challenges are across the board testing of all classes of employees.[12]

ADA Challenges

With regard to safety sensitive requirements that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, an employer must demonstrate that the requirement, as applied to the individual, satisfies the “direct threat” standard . . . in order to show that the requirement is job-related and consistent with a business necessity[13] This does not protect an employee for the illegal use of drugs, but it may be implicated as a claim if the employer has an  overbroad random testing scheme that does not meet the criteria for “special needs” testing of any type. Once the testing scheme is eliminated, any additional damage due to ADA issues could be raised if such random testing was the basis for discovering, and acting on, a verified disability status and not the illegal drug use.

Wrap Up

It’s clear that the local special district or public employer that undertakes random testing of broad ranges of job classes (especially those not yet upheld in the courts) may be taking on some additional risks of defending those schemes. It’s recommended to stick with the tried and true when formulating a drug testing plan for your district.

[1] See Safety versus Privacy:  When May a Public Employer Require a Drug Test? by Diane M. Juffrase, Popular Government, Winter 2003.

[2] But see http://www.aclu-or.org/sites/default/files/9thCircuit_Woodburn_Opinion_31308.pdf

(Which is a link to a 9th circuit case Lanier v Woodburn, Oregon in which the pre-employment testing of library pages was overturned as unconstitutionally overbroad and unreasonable].

[3] See Juffrase, supra, page 5, citing Skinner v. Railway Labor Executives’ Association, National Treasury Employees Union v. Von Raab, and Chandler v. Miller, all U.S. Supreme Court cases.

[4] In the Skinner, Van Raab, and Chandler cases, the Court held that the government is allowed to conduct drug tests without individualized suspicion when there is a “special need” that outweighs the individual’s privacy interest. In Skinner, the court found that public safety was such a special need.

[5]See Generally, discussion of city testing of public employees and cites therein. http://www.tml.org/legal_pdf/DrugTestingPublicEmployees.pdf

 

[6] http://transit-safety.volpe.dot.gov/DrugAndAlcohol/Newsletters/issue13/html/Fall99pg2.htm [ Author’s note to editor:  this link would provide a great graphic]

[7]See the extensive briefing of procedural compliance issues that even the FTA must face when directing random testing for safety sensitive positions:  http://transit-safety.volpe.dot.gov/drugandalcohol/newsletters/issue05/html/fta5.htm#c

Drugs cutoffs are most often based on levels that are detectible and valid for determining either legal prescription levels; or, in the absence of a prescription, a level for impairment; or for the presence of a controlled substance.   Detection of a controlled substance requires a different standard for crime prosecution than for medical evaluation of impairment in the work setting.  This means that a local government using a standard less than validated by the likes of the FTA or a similar reputable group is on its own in proving validity of the test standard as little case law will exist.

[8] Safety versus Privacy:  When May a Public Employer Require a Drug Test? by Diane M. Juffrase, Popular Government Winter 2003.

[9] Bannister v. Board of County Comm’rs of Leavenworth County, Ks, 829 F. Supp. 1249, 1253 (D. Kan. 1993).

[10] Baron v Hollywood, 93 F.Supp.2d.1337 (S.D. Fla.2000). 2d 1337 (S.D. Fla, 2000) (The court rejected the city’s claim that the need to maintain a positive image and provide public assurances was sufficient to meet the “special needs” test.) see also Bolden V. Eouthestern Pa. Transp. Auth, 953 F.2d 807, 823 (3d Cir. 1991).

[11] Burka v. New York City Transit Auth., 751 F. Supp. 643, 649 (D.D.C. 1989).

[12] Nat’l Fed. Of Federal Employees-IAM v. Thomas J. Vilsack, Secretary of Agriculture, et al, U.S.D.C., D.C. (June 8, 2012)  We conclude that the Secretary has failed to demonstrate “special needs” justifying random drug testing of all Forest Service Job Corps Center employees.”  Robinson v. City of Seattle, 10 P.3d 452 at 470  (2000)

[13] EEOC v. Exxon Corporation, 203 F.3d 871, 873 (5th Cir. 2000).  See also EEOC guidelines on applying ADA to safety sensitive or direct threat conditions.

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