Drug Testing News

Legal Issues Of Drug Testing:True Test For Ecstacy

Basic concern: Is it against constitutional rights to privacy to implement drug testing? Legal case Ben Capua et al. vs. City of Plainsfield, 1986.

Surprise building lockdowns for drug testing continued until all firefighters had been testing. 16 firefighters were then notified as testing positive and summarily terminated without severance pay, any appeal, and were charged with "commission of a criminal act."

The 16 workers then proceeded to sue the City of Plainsfield. U.S. District Judge H. Lee Sarokin ruled a halt to drug testing and reinstatement of those who were fired.

Harold Gibson, Director of Public Safety for Plainsfield, claimed responsibility for the operation. "The firefighters are not the enemy." "I'd be the first to admit that. However, in determining who the enemy was in this particular set of circumstances, it was necessary to put everybody through the metal detector, so to speak." "We as administrators, should be allowed to infringe on those Constitutional rights in order to accomplish the objective of determining whether they're drug abusers or not."

Judge Sarokin commented: "The sweeping manner which the officials set about to accomplish their goals violated the firefighters individual liberties. The search was unreasonable because defendants (the city) lacked any suspicion as to that individual firefighter. The invidious effect of such mass round up urinalysis is that it casually sweeps up the innocent with the guilty and willingly sacrifices each individuals 4th Amendment right in the name of some larger public intent. The City of Plainsfield essentially presumed the guilt of each person tested." " We would be appalled at the spector of the police spying on employees during their free time and then reporting their actions to their employers. Drug testing is a form of surveillance, albeit a technological one. Nonetheless it reports on a person's off-duty actions just as surely as if someone had been present and watching. It is George Orwell's 'Big Brother' society come to life."

*Sarokin's ruling only attacked the circumstances surrounding the surprise urine testing.

Legal case Storms et al vs. Coughlin, 1987.

Prisoners of a New York prison facility were subjected to drug testing. The court ruled that, "Because of their debt to society and enhanced need for security, prisoners have severely limited rights." Mass drug screenings then followed throughout the facility.

Historical start of Biochemical Testing in Judiciary Courts: Legal case Schmerber vs. California, 1966.

A serious accident occurred, when police officers arrived at the scene, one officer recognized the smell of alcohol on one of the drivers. The officer then proceeded to draw a blood sample from the man, which tested positive for alcohol. So the man was then convicted.

Was taking the blood sample from the man against his 4th and 5th Amendment rights?

The court ruled that "Physical evidence, since it is silent, does not incriminate a witness against himself." So his 5th amendment rights were not infringed upon. The court also ruled that the objective inference of the police officer constituted a reasonable search (blood sample), so the evidence was valid.

Schmerber case set directives for courts to follow regarding testing:

1.Physical evidence (blood, breath, hair, and urine) taken directly from a witness does not come under protection against self-incrimination.

2.Any medical test is a 4th amendment search, subject to constitutional limitations.

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(The following information is from EmploymentLawCentral.com)

A Sixth Circuit case indicates that constitutional issues may be involved in private sector employment where the employer conducts drug testing pursuant to federal regulations.

Rule: A Bivens claim alleging an unreasonable search in violation of the Fourth Amendment may be brought against a private corporation which conducts drug tests pursuant to the Federal Railroad Administration's Control of Alcohol and Drug Use Regulations (49 C.F.R. §§ 219 et seq), rules the Sixth Circuit Court of Appeals.

See, 10-02-98 Jerry Hammons v Norfolk Southern Corporation United States Court of Appeals for the Sixth Circuit 97-3465 Moore, Clay and Gilman, Circuit Judges Published 33918 Drug - Alcohol testing, Fourth Amendment right to freedom from unreasonable search, liability of private employer for constitutional claims based on employers compliance with federal drug testing regulations

A. In Baggs v Eagle-Picher Industries, Inc., 957 F2d 268 (CA 6, 1992) cert. den. 113 S. Ct. 466, the employer required each of its 200+ employees to submit to a surprise drug screening by urinalysis. Twenty of the employees who tested positive for drugs filed a multi-count complaint in State court. After removal to Federal court, and after discovery, the court entered summary judgment for the defendant employer and the Sixth Circuit affirmed. On the common law invasion of privacy claim (the specific variation of intrusion into a person's seclusion, solitude and private affairs), which required 1) an intrusion by defendant, 2) into a matter plaintiff has a right to keep private, 3) by a method objectionable to a reasonable person, the court relied on Michigan case law to hold that, while the method of visually or aurally confirmed collection of urine samples was objectionable the intrusion was into an employment related matter that the employees did not have a right to keep from their employer. The Sixth Circuit noted other state court decisions where employee drug testing has been upheld in light of common law privacy challenges. The court cited at 957 F2d at 284 n.2 the cases of Luedtke v Nabors Alaska Drilling, Inc., 768 P2d 1123, 1137-38 (Alaska, 1989), Jennings v Minco Technology Labs, Inc., 765 SW2d 497, 502 (Tx. App., 1989) and Texas Employment Commission v Hughes Drilling Fluids, Inc., 746 SW2d 796, 801-802 (Tx. App, 1988). The court also affirmed the summary judgment on plaintiffs' Toussiant breach of contract claim and defamations claim. On the Toussiant claim, the court held that the employment was at-will and that even if just cause was required, the positive drug tests would constitute cause under the drug-free workplace policy and the handbook's express prohibition of drug use on the job. The defamation claims were unsupported because the comments in a local newspaper did not express that the fired workers were illegal drug users, as plaintiffs suggested the newspaper article implied.

B. In Buckner v Horizon Health Systems, Inc., unpublished opinion per curium of the Michigan Court of Appeals, decided May 19, 1995, (Docket No. 164174), defendant's director of security suspected plaintiff of being under the influence of alcohol at work and requested that plaintiff submit to a blood alcohol test. When plaintiff refused, knowing that such a refusal could result in dismissal pursuant to defendant's "Standards of Conduct", his employment was terminated. Thereafter, he was offered employment if he agreed to a demotion and in-patient alcoholism treatment. The offer was withdrawn when plaintiff appeared to sign the documentation with slurred speech, an unsteady gait and smelling of alcohol. The Court of Appeals affirmed summary disposition in favor of defendants on plaintiff's Toussiant claim and age discrimination claim. Plaintiff had not established a question of fact as to the existence of a just cause employment contract. There was an expressed at-will disclaimer in the employer's handbook and that was not altered by the existence of a disciplinary system in the handbook. The court noted that the "Standards of Conduct" expressly provided that refusing to submit to a drug test could result in discharge; implying that, even if cause was necessary, cause existed. The refusal to submit to the blood test also constituted a non-pretextual, legitimate, non-discriminatory reason for the discharge to defeat the age discrimination claim.