National Treasury Employees Union v. Von Raab
• Customs Department began a drug screening program that required urinalysis of
employees seeking promotion or transfer to jobs with “direct involvement in drug interdiction
or requiring the incumbent to carry firearms or handle classified material.”
• Test results could not be turned over to any other agency (including criminal prosecutors)
unless it received written permission from the employee
Union filed suit alleging violation of the 4th amendment
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.
District Court: Agreed that a violation of the 4th amendment existed
Court of Appeals: The search process does fall within the meaning of “search” in the 4th
amendment but it is reasonable given a) the limited nature of the search and testing process
and b) the strong interest in detecting drug use among certain employees
National Treasury Employees Union v. Von Raab
Supreme Court Decision:
• The collection and analysis of urine samples are searches that must meet the
reasonableness standard contained within the 4th Amendment (e.g., the public’s
interest must be balanced against the person’s right to privacy)
• A warrant is not required before initiating the search process. It would unduly
compromise the agency’s primary role and not provide additional protection
against privacy protection violations
• The Government has a compelling interest in ensuring the certain personnel
are not using illegal drugs. These interests outweigh the privacy concerns of the
affected employees
• The program is legitimate given the high level of safety and national security
concerns that exist (e.g., possibly promotion of drug users to sensitive positions)
• The testing program is reasonable even without the showing of probable cause
(or some level of individual suspicion)
Dissenting Opinions in Von Raab
Marshall: “Here, as in Skinner, the Court’s abandonment of the Fourth
Amendment’s express requirement that searches of the person rest on probable cause
is unprincipled and unjustifiable.”
Scalia: “I decline to join the Court’s opinion in the present case because neither
frequency of use nor connection to harm is demonstrated or even likely. In my view,
the Customs Service rules are a kind of immolation of privacy and human dignity in
symbolic opposition to drug use.”
“The Court’s opinion in the present case, however, will be searched in vain for real
evidence of a real problem that will be solved by urine testing of Customs Service
employees.”
Skinner v. Railway Labor Executives’ Association
>> Supreme Court Decision:
• The testing program constitutes a search within the context of the 4th Amendment
• The drug and alcohol testing is reasonable under the 4th Amendment even though
reasonable suspicion is not present
“The Government's interest in regulating the conduct of railroad employees engaged in safety-sensitive tasks in
order to ensure the safety of the traveling public and of the employees themselves plainly justifies prohibiting such
employees from using alcohol or drugs while on duty or on call for duty and the exercise of supervision to
assure that the restrictions are in fact observed. That interest presents "special needs" beyond normal law
enforcement that may justify departures from the usual warrant and probable-cause requirements.”
• Requiring a warrant is not essential for the testing program to be reasonable. The
intrusions are limited and narrowly and specifically defined
• Individualized suspicion is not required. Tests involve only limited threats to
employees’ privacy expectations
• Court of Appeals was incorrect in stating that since the tests cannot detect current
impairment, it is unreasonable
Even if urine test results disclosed nothing more specific than the recent use of controlled substances, this
information would provide the basis for a further investigation and might allow the FRA to reach an informed
judgment as to how the particular accident occurred. More importantly, the court overlooked the FRA's
policy of placing principal reliance on blood tests, which unquestionably can identify recent drug use, and failed to
recognize that the regulations are designed not only to discern impairment but to deter it.
Drug Testing --- Summary of Key Issues
1) Who get tested?
a) Applicants (Adverse impact issues, job relevancy)
b) Current employees (Wrongful discharge claims, union contract
limitations)
2) What types of testing procedures are used?
a) Random (Possible 4th Amendment violation)
b) “For cause” testing (Establishment of reasonable suspicion,
differential treatment concerns)
3) What type of organization is drug testing?
a) Public (4th Amendment concerns, right to privacy issues)
b) Private
Drug Testing --- Some Key Issues (cont.)
4)
What type of test is used?
a) Sensitivity, accuracy, reliability
b) Cross-reactivity concerns (Effects of other substances)
c) Confirmatory test used?
* Thin layer chromatography (TLC) [Relatively cheap, requires visual comparisons)
* Immunoassay Tests (EIA, RIA)
* Gas Chromatography, Mass Spectrometry (GCMS) [Most reliable and costly]
5) In what types of jobs are is drug testing being used?
a) Safety concerns (e.g., accidents)
b) Access to sensitive information
6) Legal liability
a) For not testing
b) Inform other companies of those scoring positive on drug tests in certain jobs
Cross-Reactivity Examples (The industry standard for drug testing is the
"NIDA Five” which are five chemical classes that include Amphetamines,
Cocaine, Marijuana, PCP and Morphine)
• Pain killers with Ibuprofen (e.g., Advil, Nuprin) --- Marijuana
• Cold medicines and decongestants (e.g., Contact, Sudafed) -- Amphetamines
• Cough syrups (e.g., Formula-44), Demerol, Mydol, Primatene-M and common
prescription antidepressants such as Elavil and Tofanil --- Opiates (e.g., opium
and heroin)
• Antibiotics --- Cocaine
• Poppy seed bagels --- Marijuana
• Codeine --- Morphine, Heroin, Opium
• Cost to U.S. Society by Drug Abuse = Estimated 50 billion (figure reported by J.
Michael Walsh former Director of Applied Research and the Office of Workplace
Initiatives at NIDA before a federal court)
President George Bush Sr. raised the estimate up to 60-100 billion
Where did this estimate originate?
>> RTI Report (1982): Survey completed by 3,700 households
• Those who had ever smoked marijuana daily (20/30 days) had household
income levels 28% less than those households that never smoked marijuana daily
(reduced productivity due to daily marijuana use)
• Extrapolated to the general population – total productivity “loss” = 26 billion
• Adding the estimated costs of other factors (drug-related crimes, accidents,
medical care) = 47 billion (Viola!!! --- The cost to society)
Other Issues
•
Number of tests performed
a) Human error (e.g., mislabeled, mixed samples)
b) Chain of command concerns
c) Equipment issues (e.g., calibration)
•
Standard for positive drug test scores; None exist
50 nanograms of THC metabolites per milliliter is considered to be a "presumptive positive" by
NIDA certified labs
•
National certification of licensing and certification of drug testing labs