AN ANALYSIS OF FIREFIGHTER DRUG TESTING UNDER THE FOURTH
AMENDMENT
David J. Fish
Klein, Thorpe and Jenkins, Ltd.
20 North Wacker Drive, Suite 1660
Chicago, IL 60606-2903
As illegal
drug use has become a nationwide problem, public employers, such as fire
departments, are testing employees for illegal drug use. While fire departments want drug-free
employees, they must recognize the legal obstacles that limit their power to
test for illegal drugs. The Fourth
Amendment to the United States Constitution protects the privacy of individuals
against arbitrary and unreasonable intrusions by the government. As such, fire departments must only test
employees for drug use in compliance with the Fourth Amendment.
Not only
must fire departments appreciate the constitutional obstacles involved with
drug testing, but they also must deal with state laws, collective bargaining agreements and the inevitable human
resource problems that will arise from drug testing. Many state constitutions provide more privacy protections than
the federal constitution. Fire departments
can violate collective bargaining agreements if drug policies are not carefully
drafted and if the actual drug tests deviate from the policies. Finally, fire departments need to recognize
that some employees may resent being forced to undergo drug testing. While an argument can be made that drug
testing is for the safety of the department as a whole, individual employees
may be upset if they personally do not use drugs and yet are forced to undergo
what they might consider to be intrusive bodily tests. As such, fire departments should respect the
integrity of each of their employees so that a few bad apples do not spoil an
entire bushel.
This
article examines relevant United States Supreme Court decisions dealing with
public employee drug testing. Next, the
article examines lower federal and state court decisions that have specifically
addressed firefighter drug testing.
While addressing the constitutional privacy issues that will arise, the
article specifically addresses five different types of drug testing: reasonable
suspicion, pre-employment, post-accident, return-to-duty, and random drug
testing.
1. United
States Supreme Court Precedent
The Fourth
Amendment to the United States Constitution guarantees the "right of the
people to be secure in their persons ... against unreasonable searches and
seizures." Ordinarily, the Constitution requires the government to
obtain a warrant supported by probable cause to search a person. However, when the government has a special
need for a search, such as protecting public safety, a court will uphold the
search if it is found "reasonable" after balancing the physical
intrusion against the governmental interest at stake. As such, courts examine three factors when judging the
constitutionality of employee drug tests:
(1) the nature of the privacy interest upon which the search
intrudes; (2) the extent to which the
search intrudes on the employee's privacy; and (3) the nature and immediacy of the
governmental concern at issue, and the efficacy of the means employed by the
government for meeting that concern.
Recently,
the United States Supreme Court has decided four cases which address
governmental drug testing. While the
cases do not specifically address drug testing of firefighters, they do provide
useful guidance for fire departments that want to draft drug testing policies.
The Supreme
Court has recognized the need to test safety-sensitive employees for drug
use. In Skinner v. Railway Labor Executives' Ass'n, the Court held that the Department of Transportation (DOT)
regulations mandating drug screening of railroad employees after an accident
were reasonable and therefore did not violate the Fourth Amendment because the
safe operation of a railroad is an important government interest. The Court recognized that a urinalysis test
raises privacy concerns, but that railway employees, "by reason of their
participation in an industry that is regulated pervasively to ensure
safety," had a diminished expectation of privacy.
Similarly,
in National Treasury Employees Union v.
Von Raab, the Supreme Court held that Customs employees seeking
promotions or transfers to positions involving drug interdiction or the use of
a firearm could be compelled to submit to random drug testing. The Court found that the agency had an
"almost unique mission," as it was the first obstacle against the
smuggling of illicit drugs into the United States. Therefore, the government had a compelling interest in assuring
that employees in positions that involve large amounts of illegal narcotics and
interaction with criminals would not themselves be drug users.
Although
not involving drug testing of public employees, in Vernonia Sch. Dist. 47J v. Acton, the Court held that a public school district's student
athlete drug policy did not violate a student's federal or state constitutional
right to be free from unreasonable searches.
The Court noted in its decision that "students within the school
environment have a lesser expectation of privacy than members of the population
generally." The Court also
pointed out the importance of deterring drug use among children and the risk of
injury a student athlete poses to him or herself and others.
The Supreme
Court has, however, refused to allow drug testing if the government fails to
show a "special need" to test.
In Chandler v. Miller, the Court
struck down a Georgia statute that required candidates for elected office to be
drug tested within thirty days prior to qualifying for nomination or
election. The Court found that Georgia
failed to show a "special need" that was substantial enough to
override a candidate’s privacy interest.
Although
the United States Supreme Court has not ruled on whether firefighters are
"safety-sensitive employees," lower courts have assumed they are
because they protect the public safety and are involved in dangerous and
skilled activities. Where a single
misperformed duty could have irremediable and disastrous consequences, such as
where an employee could not rectify a mistake or other government employees
would have no opportunity to intervene before harm occurs, then a position is
more likely safety sensitive.
While many
courts will consider firefighters as safety-sensitive employees, it is important for fire departments to recognize that not
all of their employees may be tested for drug use at all times. As such, a department policy requiring that
every employee undergo drug testing may be found unconstitutional. For example, the governmental interest in
testing a firefighter would be greater than its interest in testing a clerical
employee. As such, fire departments
must be careful to limit the scope of a drug testing policy.
Many fire
departments require that firefighters be trained as paramedics or emergency
medical technicians (EMT). Reviewing
courts will likely find that paramedics and EMTs are safety sensitive employees
because they perform skilled and life saving functions. Paramedics and EMTs must recognize vital
signs that will determine necessary treatments. In addition, they must be able
to perform intubation, perform CPR, read cardiac rhythm strips and remember
which drugs or electrical shocks should be applied as part of a treatment. In Piroglu v. Coleman a paramedic trainee alleged that a random urine drug test
violated the Fourth Amendment. The
court recognized that the testing of EMTs falls within the special needs
exception to the Fourth Amendment.
Random drug testing “ensures that individuals charged with protecting
the public health and safety are not under the influence of drugs.” EMTs “are called upon to assess an emergency
patient's symptoms, to administer cardiopulmonary resuscitation and to
transport the emergency patient to a health care facility. Given the nature of
his duties, an EMT under the influence of drugs poses a real and substantial
risk to public health and safety.”
2.
Circumstances Under which Drug Testing Occurs
Courts
treat drug testing differently based on the circumstances under which a test is
administered. As such, this article
separately addresses the following types of drug tests which are commonly used
by public employers: reasonable suspicion, pre-employment, post-accident,
return-to-duty, and random drug testing.
There are a
number of private companies that offer drug testing services. If a private
company is used, it must respect and follow a fire department’s drug testing
policies. While it is beyond the scope
of this article to examine the procedural requirements for the drug tests, it
is important to recognize that courts have, and will, invalidate tests based on
the manner in which the tests are administered.
A Reasonable Suspicion
If properly
administered, fire departments may constitutionally use reasonable suspicion
drug testing for firefighters. Fire
departments have successfully relied on the reasonable suspicion standard to
test firefighters for drug use because insufficient performance by a
firefighter is "threatening [to] the safety of the community." It is important
that fire departments both adopt proper guidelines to find reasonable suspicion
and also that they follow those guidelines.
A reasonable suspicion search should be
"under circumstances exhibiting individualized suspicion of on-the-job
impairment and with evidence of substantial reliability." Courts have
articulated the following factors to provide a basis for reasonable suspicion
testing:
(1)
observable phenomena, such as direct observation of an employee engaged in
drug-related activity or exhibiting the physical symptoms of being under the
influence of a drug;
(2) a
pattern of abnormal conduct or erratic behavior;
(3) an
arrest or conviction for a drug- related offense, or the identification of an
employee as the focus of a criminal investigation into illegal drug possession,
use or trafficking;
(4)
information provided either by reliable or credible sources or independently
corroborated;
(5) sudden
change in work performance including unexplained or excessive absenteeism,
tardiness or workplace negligence; or
(6)
evidence that the employee has tampered with a drug test.
In Saavedra v. City of Albuquerque a firefighter
was terminated after marijuana presence was found in his urine. He challenged, on Fourth Amendment grounds,
the City's claim of a finding of reasonable suspicion to support the drug
test. The court disagreed with the
firefighter and found that the following facts constituted a reasonable
suspicion: the firefighter referred himself to the city's employee health center
for an evaluation, he had warned his supervisors that he might become violent
if provoked, and he had lost his temper while in uniform and had engaged in a
public altercation with his girlfriend.
As a
practical matter, it is important that fire departments make findings of a
reasonable supervisor prior to testing.
A department’s drug policy should contain forms that must be filled out
prior to testing. The forms should have
spaces that require the appropriate supervisor to make, and articulate, specific
findings. If possible, articulate
multiple grounds for suspicion. It is
also important that the supervisors who observe the signs of drug use are
trained to recognize such signs.
B. Pre-Employment
Offers of
employment are frequently contingent on an applicant passing a drug test. Pre-employment drug testing involves a lower
expectation of privacy and therefore courts are somewhat liberal in upholding
such tests. When an applicant
applies for a job that requires drug testing, they voluntarily choose to enter
into a profession that is regulated and where testing is required. Courts recognize that applicants are not compelled to seek a
job and if they find drug testing offensive, they need only refrain from
applying for that particular job. As such,
courts have held that those who voluntarily choose to accept a job that
requires drug testing do not encounter the same level of intrusion on privacy.
Pre-employment
drug tests have been upheld for firefighters.
In Brown v. Winkle, a federal district court in Ohio refused to enjoin a fire
department’s drug testing program. Borrowing from Von Raab, the court held
that there could be no doubt that the work of firefighters "depends
uniquely on their judgment and dexterity." The court stated
that "there is an element of teamwork in firefighting" and that
"if one member of the crew is not completely alert and capable, mentally
and physically, the lives of the other members are in jeopardy."
Firefighter
applicants should be warned, immediately upon applying, that they will be
required to undergo drug tests. A
description of the drug test should also be provided. The mandatory pre-employment drug testing should also be included
in the fire department’s drug testing policy handbook.
C. Post-Accident Drug Testing
Fire
departments may test firefighters for drug use after an accident. Skinner
held that post-accident procedures are intended to provide valuable information
that can help to pinpoint the cause of an accident, and to deter drug use
"[b]y ensuring that employees . . . know that they will be tested upon the
occurrence of a triggering event, the timing of which no employee can predict
with certainty." The important
governmental interests served by post-accident testing regulations would be seriously
hindered if supervisors were forced to gather specific facts amounting to an
individualized suspicion of impairment before testing a particular employee. In Skinner, the Supreme Court held that
post-accident drug testing was reasonable because the invasion of privacy was
minimal and often involved employees who worked in sensitive positions.
Precedent
has established that firefighters are safety-sensitive employees. As such, courts
will likely uphold post-accident drug testing by fire departments. Fire departments should include language in
their drug-testing policies which requires post-accident drug testing of all
firefighters that are causally connected to an accident.
D. Return‑to‑Duty Drug Testing
Return-to-duty
drug testing usually occurs when an employee has either tested positive in the
past or has admitted to drug use.
Essentially, the employer gives the employee a second chance. As such, there are very few cases which
address return‑to‑duty testing.
Fire
departments may constitutionally employ return-to-duty testing of
firefighters. To an extent,
return-to-duty testing is similar to pre-employment testing. If an employee does not want to be tested,
he or she need not return to duty.
Additionally, an employee has a lower expectation of privacy because
they know they will be retested and because they have usually been tested in
the past. If fire departments decide to
allow previous drug users to return to duty, they should be careful to draft
drug-testing policies that require return-to-duty drug testing. Such a requirement should also be explained,
in writing, upon imposing discipline that allows a firefighter to return to
duty.
E. Random Drug Testing
A public
employer can only impose a random drug-testing program on its employees, absent
individualized or reasonable suspicion, if the employee works in a safety
sensitive position. Since firefighters
are safety-sensitive employees, they may be
subjected to random drug testing. For instance, in Penny v. Kennedy, the court relied on Von
Raab and Skinner to conclude that
there is a compelling interests to make sure that firefighters are free from
drug impairments and therefore held a urinalysis without any suspicion of use
is permissible. Likewise, in Wilcher v. City of Wilmington, a fire
department began randomly testing firefighters and the firefighters claimed a
Fourth Amendment violation. The court
disagreed with the firefighters and upheld the testing under the Fourth
Amendment.
3. Departments Must Follow Proper Testing
Procedures
It
is also important to be careful that the integrity of the testing process is
respected because sloppy testing procedures may invalidate a drug test. For instance, in Johnson v. City of Plainfield a federal
district court in New Jersey held that a firefighter properly stated
constitution violations where all firefighters and fire officers were ordered
to submit to a surprise urinalysis test.
The urinalysis tests were done under the surveillance and supervision of
testing agents. Firefighters that could
not urinate on demand were insulted.
Finally, the court pointed out that urine samples were given to members
of the opposite sex and the station doors were all locked. As such, the court found that the procedures
used were improper.
If properly
performed and administered, most courts will uphold a fire department's testing
of firefighters for drug use. It is
important to remember that each department's situation is different and that
this article is not a substitute for the advise of legal counsel.
Table of Cases Cited
Hillard v.
Bagnola, 698 N.E.2d 170 (1st
Dist. 1998)
Wilcher v.
City of Wilmington, 139 F.3d 366
(3d Cir. 1998)
Vernonia Sch.
Dist. 47J v. Acton, 515 U.S. 646
(1995)
National
Treasury Employees Union v. Von Raab,489
U.S. 656 (1989)
Chandler v.
Miller,520 U.S. 305 (1997)
Saavedra v.
City of Albuquerque, 73 F.3d 1525
(10th Cir. 1996)
Doe v Honolulu, 816 P.2d 306 (Haw. App. Ct. 1991)
Piroglu v.
Coleman, 25 F.3d 1098
(D.C.C.A., 1994)
Georgia Ass'n
of Educators v. Harris, 749 F. Supp.
1110, 1118 (N.D. Ga. 1990)
Reames v.
Department of Public Works, 707
A.2d 1377 (Sup. Ct. N.J. 1998)
Capua v.
Plainfield 643 F.Supp. 1507 (
D.C. N.J. 1986)
Everett v.
Naper, 833 F.2d 1507 (11th
Cir. 1987)
Bangert v.
Hodel, 705 F. Supp. 643, 650
(D.D.C. 1989)
American Fed'n
of Gov't Employees v. Sullivan,
744 F. Supp. 294 (D.D.C. 1990)
American Fed'n
of Gov't Employees v. Martin,
969 F.2d 788 (9th Cir. 1992)
Benavidez v.
City of Albuquerque, 101 F.3d
620, 624 (10th Cir. 1996)
International
Bhd. of Teamsters v. Dep't of Transp.,
932 F.2d 1292 (9th Cir. 1991)
Willner v.
Thornburgh, 928 F.2d 1185 (D.C.
Cir. 1991)
Johnson v.
City of Plainfield, 731 F.Supp.
689 (D.N.J. 1990).
Skinner v.
Railway Labor Executives' Ass'n,
489 U.S. 602 (1989)
Transport
Workers Union of Philadelphia Local 234 v. SEPTA, 884 F.2d 709, 712 (3d Cir. 1989)
Taylor v.
O'Grady, 888 F.2d 1189, 1194
(7th Cir. 1989)
Capua v.
Plainfield, 643 F. Supp. 1507 (
D.C. N.J. 1986)
Lovvorn v.
Chattanooga, 846 F.2d 1539 (6th
Cir. 1988)