Substance Abuse Testing

Substance Abuse Testing

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HEALTH AND SAFETY

Both firefighters and fire departments have rights that must be considered.

A local fire chief and director of safety quietly enter a fire station in the early morning hours. Working quickly, they lock all exits from the station. Then they awaken all the firefighters present and order them to provide urine samples, under observation, for substance abuse testing.

This story may sound farfetched, but it’s the fact pattern of an actual 1986 case from New Jersey, Capua v. City of Plainfield, in which drug testing of firefighters was challenged. Many fire departments have instituted or are in the process of instituting drug and alcohol testing programs. Legal challenges to these programs by unions or individual employees are working their way through the courts.

The most frequent legal challenges to drug testing programs involve claims under the federal and state constitutions, framed in terms of the right to privacy, the right to due process, and the right to be protected against unreasonable search and seizure.

Until the U.S. Supreme Court has had an opportunity to rule on the issue, any legal advice must be considered preliminary and subject to change; nonetheless, it seems clear that the courts will uphold substance abuse testing programs, if properly structured and implemented, as meeting the appropriate legal and constitutional standards. At the same time, programs conceived in haste and lacking basic procedural protections and safeguards (such as the “program” described above) have been struck down by the courts as unconstitutional.

Workplace testing for drugs and alcohol has become increasingly common in the United States for many reasons. The federal government estimates that 10 to 23 percent of all workers abuse drugs, alcohol, or both on the job. Employees with substance abuse problems are absent from work 2½ times more often than their fellow employees. Substance abusers receive three times as much sick leave and file five times as many worker’s compensation claims as do nonusers. Even more important, employees who are impaired present a substantial hazard to their fellow workers and to the public at large.

The case for drug testing is, particularly strong in the fire service. To quote from a 1986 federal court decision called Lovvorn v. City of Chattanooga, involving the Chattanooga (Tenn.) Fire Department:

Fighting fires is hazardous work. Fire fighters must be able to make snap decisions and to react quickly. Fighting fires at some locations is pre-planned and fire fighters must be able to recall such things as the location of water sources and of hazardous chemicals. . . . Expert testimony established that depending upon various factors, marijuana can adversely affect one’s perception, decision-making time, short-term memory, and motor skills.

Clearly, both the public and fellow firefighters can legitimately expect that a firefighter will be unimpaired by drugs and alcohol when performing his or her duties.

But all citizens have certain protections under the Bill of Rights of the U.S. Constitution, including the right to privacy, the right to be free from unreasonable search and seizure, and the right to due process. These protections, however, apply solely against governmental action.

Public or not

Thus, the first issue in determining the legality of a fire department’s substance abuse program is to determine whether the department is a public employer or a private entity. Career fire departments are organized and operated by local governments, and thus are clearly public employers. However, volunteer companies present a separate issue. Some courts have indicated that such companies are private employers, while other cases have focused on the public nature of the duties performed and have held that volunteer companies are public employers. Recent U.S. Supreme Court decisions have tended to reduce the scope of activities that may constitute state action, thus raising the possibility that volunteer fire departments may be held to be private employers. Private employers are largely free from constitutional restrictions in implementing substance abuse programs.

Assuming that a fire department is a public employer, the most common challenge to substance abuse testing programs is that these programs constitute an unreasonable search and seizure prohibited by the Fourth Amendment. The majority of courts that have considered the issue have held that a program that requires an employee to provide blood, saliva, or urine specimens constitutes a search as that term is used in the Fourth Amendment. The courts have also recognized, however, that fire departments have a reasonable and compelling interest in ensuring that firefighters are free from drugs or alcohol when performing their duties. Furthermore, the courts have recognized to some degree that firefighters give up some of their expectations of privacy when they agree to work in the fire service.

The courts have balanced all these factors and seem to have agreed upon an appropriate standard for determining when substance abuse testing is justified. That standard is most often referred to as ”reasonable suspicion.” The decision to test an employee must be based on specific facts and reasonable inferences that can be drawn from those facts. In addition, those facts must be “individualized”—that is, they must be relevant to the specific employee or employees chosen for drug testing.

The reasonable suspicion standard isn’t as strict as the probable cause standard necessary for a search warrant in a criminal case. Reasonable suspicion can be based on properly designed personnel procedures which detect substance abuse symptoms such as absenteeism, aberrant conduct on the job, or unusual financial difficulties. Furthermore, there’s no requirement that a fire department go before a neutral magistrate to secure a warrant before conducting substance abuse testing based on reasonable suspicion.

Nonetheless, the reasonable suspicion standard appears to prohibit compulsory mass drug testing and random, unannounced drug testing. This type of drug testing has been upheld for specific occupational groups such as corrections officers and horse race jockeys, because there already exists a reasonable government interest in regulating them. But the reported cases dealing with firefighters have struck down random, mass testing.

Public employees also have the right to procedural due process in termination actions. Generally this right requires that employees receive notice of charges, an opportunity to respond, and a hearing before termination for drug-related reasons.

Public employees may also raise due process claims regarding the manner in which the testing is performed. A program that fails to set forth written guidelines for the testing to ensure the validity of the test results may be struck down on due process grounds. Similarly, a program that employs testing methods of dubious validity may also be challenged on due process grounds. The availability of a due process attack on testing results requires that any fire department considering substance abuse testing draft a written, comprehensive program designed to ensure that the test results are valid.

The Alcohol, Drug Abuse, and Mental Health Administration of the U.S. Department of Health and Human Services issued Technical Guidelines for Drug Testing Programs last February. Although these guidelines apply only to drug testing in the federal sector, it appears likely that they’ll become an informal standard for both public and private employers. Fire departments should incorporate these guidelines into their testing programs.

The final federal constitutional issue in substance abuse testing cases involves the right to privacy. Although several courts have suggested that random and mass substance abuse testing programs may impermissibly encroach on an employee’s constitutional right to privacy, no court has specifically based its decision on that issue. And it appears that if the reasonable suspicion standard is met, an employee’s right to privacy provides no basis for challenging a substance abuse program.

The issues discussed so far are the major federal constitutional issues raised by substance abuse programs. Fire department officials should be aware, however, that many state constitutions contain provisions that grant greater rights to public employees. For example, several state constitutions have broader definitions of privacy rights than those derived from the U.S. Constitution. Additionally, several state courts have adopted broader interpretations of state constitutional provisions even though those provisions are worded much the same way as the federal Constitution. Thus, fire department officials should consult with their local counsel in implementing and drafting a drug testing program.

Legislated

Turning to statutory restrictions, there is no federal statute that directly regulates the content or operation of substance abuse programs. However, such legislation has been proposed in several states, and many localities have already enacted ordinances that regulate or prohibit substance abuse testing. For example, Iowa has passed a law that protects employers from liability for administering drug testing provided the employer’s program includes privacy protection, specimen labeling, and confirmation testing in the event of a positive test. Vermont law prohibits drug or alcohol testing without probable cause and prohibits an employer from terminating an employee on the basis of a positive test unless the employer first offers rehabilitation. Again, fire department officials should consult with local counsel to determine the status of substance abuse testing under state and local laws.

Two federal laws, though not direct restrictions, may affect the implementation of a substance abuse program. The Rehabilitation Act of 1973 prevents discrimination on the basis of a physical or mental handicap by private or public employers who receive federal funds or who are federal contractors. The definition of a handicap was amended in 1978 so it doesn’t include “any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment of such current alcohol or drug abuse would constitute a direct threat to the property or safety of others.”

Although no cases testing this exclusion have involved firefighters, it would seem reasonable to argue that a current alcoholic or drug abuser would constitute a direct threat to the property or safety of others if the person is a firefighter. However, the case law is clear that a reformed alcoholic or drug user may not be denied a position merely because of a past history of substance abuse.

The Rehabilitation Act affects substance abuse testing programs in a second way. Regulations issued under the act govern the manner in which employers covered by the act may give medical examinations. Such exams are permissible; however, they may be given only after an offer of employment has been made, and the results must be treated as confidential. The results shouldn’t be placed in a general personnel file, but kept in a separate medical file to which access is limited. Supervisors shouldn’t be informed of the contents of the medical file unless the information is necessary to accommodate a handicap of the individual—for example, to inform the supervisor of the individual’s need to receive insulin injections. The information may also be made available to first aid personnel who may be required to treat the individual—even before the need arises.

A substance abuse program may also be challenged under Title VII of the Civil Rights Act of 1964 if it can be shown that the policy is applied in a discriminatory fashion or that its application has a disproportionate impact on protected minority groups. For example, a substance abuse program might be challenged if it can be shown that a disproportionate number of minorities or women were selected for drug testing under a reasonable suspicion standard, or were fired because of the test. Fire department managers should therefore closely monitor the application of the policy. If such an impact exists, the employer must produce evidence that the impact is justified by a business necessity and that there’s no other, less discriminatory means to meet this need.

If a fire department decides that substance abuse testing is desirable, it must take care to ensure that the program serves as an effective deterrent to illegal drug use. Employees should be given advance notice that they’ll be subject to substance abuse testing and of the standards that will be used to select employees for such testing. They should know what the consequences of a positive test will be. And they should be given an opportunity for a hearing after a positive test result and before disciplinary action is invoked.

Comprehensive, written procedures should be developed for the accountability of urine specimens. These procedures should detail the steps taken to ensure that valid samples are received from employees, that these samples are properly labeled, and that they’re kept under custody controls that will preclude substitution of invalid specimens before analysis. Chainof-custody procedures, similar to those used in handling evidence of a crime, are necessary.

The testing facility’s method and techniques must be reliable, and the fire department should audit them regularly. Commercial laboratories are available throughout the country to provide testing services. It’s well worth the substantial time and effort required to carefully select a reputable lab with stringent quality controls on specimen accountability, analysis, and prompt reporting of test results.

The test results should be kept as confidential as possible. False positive and false negative reports are relatively infrequent, but the possibility must be considered if disciplinary actions are to be based on test results. Personnel involved with processing chemical tests should be instructed on the need for strict confidentiality.

Positive tests should be confirmed by a second, more reliable test, preferably a combination gas chromatography and mass spectrometry test (known as a GC/MS test). Considerable attention should be given to determining what test levels will be considered to be positive evidence of drug use. This varies among labs.

Finally, substance abuse testing should be combined with an employee assistance program or, at a minimum, a policy of giving hiring preference to former employees who can verify that they’ve undergone successful rehabilitation in a recognized rehab program. Consideration should be given to preserving the jobs of employees who voluntarily come forward to seek rehabilitation before the detection of substance abuse.

The drug abuse problem in the United States is clearly a serious one. All indications are that the problem is just as prevalent in fire departments as in the rest of the country’s work force. Clearly, substance abuse tests may be a reasonable and appropriate response to that problem. However, such a program shouldn’t be implemented rashly or without planning. Hasty implementation may result in costly litigation and in an eventual court decision overturning the program and its resulting disciplinary actions. Through proper planning and advice, a fire department may establish an effective substance abuse program and avoid legal challenges.

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