Drug testing and privacy law

Drug Testing and Privacy Law

WILLIAM H. HARADER*

This article briefly outlines case law as it has evolved to allow “reasonable” searches under the Fourth Amendment. Drawing parallels between drug testing, airport searches, and drunk driver roadblocks, it suggests conditions under which drug testing should withstand judicial scrutiny. The Reagan administration’s program is reviewed in terms of those criteria and with a view toward privacy. The article

concludes that the program can be impIemented legally with a signi~cant caveat that agencies will have to design their own programs with great care. On September 15,1986, President Ronald Reagan issued Executive Order (E.O.) 12564 directing Federal agencies to develop drug testing and treatment programs with the goal of a drug-free work place. The goal, that Federal workers not work while under the in~uence of drugs, is relatively noncon~oversial. With the specter of the apparently drug-related Amtrak-Conrail crash of January 4, 1987, in the background, few will argue the case for allowing users to go about their duties unchallenged. “The costs of abuse range from increased on-the-job accidents, theft, and bad decisions, to decreased productivity. In high risk [activities] such as transportation and utilities, the need for worker screening is pa~icularly com~lling.. . . [Slince 1975, about 50 train accidents, with 37 dead and $34 million in damages, have been attributed to drug or alcohol impaired workers.” 1 Some might dispute Burt Solomon’s assertion that “No one is standing up for the interests of the drug users.“* Indeed, the testing program’s proponents would claim that they have the users’ interests in mind in designing an approach to discourage use and to channel users into Employee Assistance Programs. Those who oppose the testing program would argue that they are protecting the constitutional rights of all employees, including those who are users. No one, however, is supporting the user’s right to continue an illegal activity that might endanger others. *Direct all ~o~espo~en~e to: Wi~m H. Harader, Center for eovem~ntal Terre Haute, IN 47809. Govermnent InformationQuarterly, Volume 5, Number 1, pages 57-72. Copyright @ 1988 by JAI Press, Inc. All rights of reproduction in any form reserved. ISSN: 0740-624X.

Services, Indiana State U~iversi~,

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Regardless of its source, the implementation of a drug testing program for Federal employees raises a number of questions. This article does not deal with all of them. For example, despite the ample literature on the topic, the problems of scientific accuracy in analyzing samples will not be addressed. This article will concentrate on the legal issues. It will explore the constitutional problems, primarily in the privacy area of search and seizure. Some significant cases will be cited and parallels to other applications of the Fourth Amendment will be explored. The authority for the program will be briefly discussed. The executive order and related regulatory actions and proposals will be reviewed and related to the authority for the program. Then the outlines of the program will be considered and related to the Privacy Act and other statutes. Finally, the program will be analyzed in terms of case law, authority, and statutes. The article will conclude with recommendations for appropriate action to accomplish the goal, a work place free from the hazard of persons who are somehow impaired by the influence of drugs. If the objective is moral and legal, an administrator’s obligation is to develop moral and legal means to achieve it. Criticism of the policy maker or the suggested means in and of themselves is pointless without alternatives. CONSTITUTIONAL

RIGHTS AND DRUG TESTING

There are two ways in which employees might be checked for drug use. The most accurate and, for some, most intrusive is a blood test. Because of the invasion of privacy associated with it, the blood test is not the most common means of testing for drugs in the workplace. The urine test which is generally used is, however, only slightly less intrusive. Clearly, therefore, one issue to be raised against the program is the invasion of privacy or the right to privacy. Because the results might be used in a proceeding against the employee, another issue raised is the Fifth Amendment’s protection against self-incrimination. A related issue is the Fourth Amendment’s protection against unreasonable search and seizure. Indeed, all three attacks have been used against similar programs; but, only the last has been generally successful. Search and seizure, via the exclusion doctrine, has come to have a criminal law connotation. In practice, the amendment also has a significant privacy component. Privacy is one of the principle interests protected by the fourth amendment. A test constitutes a “search” if a person has a reasonable expectation of privacy in the thing tested.. [TJhis means that there is no legitimate expectation of privacy in physical characteristics constantly exposed to the public. If a test goes beyond mere physical characteristics, it intrudes on personal privacy. Thus, voice prints, handwriting samples, and fingerprints are not “searches”, while blood tests and fingernail scrapings are.j

In reviewing the application and interpretation of the Fourth Amendment, two approaches will be used. First, the development of administrative search and seizure doctrines will be explored. Then recent cases involving drug testing will be discussed. Finally, conclusions will be reached about what is likely to be permitted by the courts. There are a number of cases in which the courts have permitted warrantless searches. Most of us have been electronically searched at airports. The practice is widely accepted

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and has been in use since 1973. The price of a quick search is small compared to the risk of being in a hijacked plane. Even the search of luggage has been accepted in the name of safe flight. When the FAA and the airlines began the program to stop hijacking on the ground, searches were triggered by a “profile” of a hijacker. The profile was not very accurate but it did provide a basis for identification and for application of the Terry doctrine. In Terry, the Supreme Court created an exception to the fourth amendment’s requirement of probable cause in order to enable a police officer on the street to deal with a person whom he reasonably suspects is engaged or is about to engage in criminal activity. Since the officer has a duty to approach that person to investigate, and since such investigations create the possibility of hostility directed at the officer, he has the right to conduct a limited search for weapons by patting down the outer clothing of the individual being investigated. This procedure is referred to as a stop and frisk.. The exceptional nature of the Terry situation is highlighted by the strict limits which the Court applied to these police activities.4 At the expense of individual liberties and doctrinal consistency, courts in the old Profile cases ignored the inherent limitations of the Terry approach. They not only transplanted Terry from the street to the airport, but they also distorted the case in two increasingly noticeable ways. They permitted searches of airline passengers on progressively decreasing evidentiary showings of probability that the individual to be searched was armed and dangerous, and they expanded the scope of the permissible search well beyond a frisk.s It is important to note that most of the airport searches did not find weapons. In fact, many of the cases involved drugs. First, “A search conducted after the passenger met the FAA hijacker ‘profile’ and also registered a high reading on the magnetometer was held constitutionally permissible. Later, a frisk justified by the magnetometer reading alone was upheld. Further, a prospective passenger’s nervous behavior, his use of four different names, and a bulge in his pocket were also found to be sufficient justification for search . . . . Most of the criminal evidence discovered relates not to hijacking but to other offenses, principally narcotics violations.“6 Searches are often permitted when the subject consents to be searched. Some have argued that drug tests are such searches. The employee does have the option to quit and, thus, avoid being tested. The same argument was used for airport searches. The passenger was warned and had the option not to attempt to enter the boarding area. If the search to which the passenger must submit is reasonable because of the hijacking danger, his “consent” to the search is not the kind of consent involved in a “true” consent search in which there is no alternative justification for search.. In most air search cases in which consent was an issue, the question arose, as in &!&Ye,only as an alternative ground for search. In these, the court rejected the consent theory, but upheld the search on grounds of reasonableness under Terry.’

The key word is reasonubie. Walking through a magnetometer is not intrusive and safety is important. The balance is reasonable. Airport searches were generally accepted because the public was aware of the “danger” and anxious to avoid it. Most people were not planning to hijack a plane. The broad public concern was clearly a factor. More recently, there has been a rising concern about drunk driving. The organization, Mothers Against Drunk Drivers (MADD), and its offshoots (e.g., Students Against Drunk Drivers [SADD]) have worked to heighten

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public awareness of the dangers of drunk drivers and to get stiffer laws passed against drunk driving. One common device in the fight to get drunk drivers off the highways is the roadblock. In a common roadblock situation, all cars are stopped as they arrive at a specific point-the roadblock. Each driver then is required to pass a breath test. Those who fail will be taken somewhere for a more accurate test. The approach is not too different from the airport search in which all who pass a point are searched for metal and those who fail are subject to a more thorough test. However, there are differences. A breath test is more intrusive. It requires you to do something. One’s breath is an emission and it includes waste matter. The subject’s bodily gases are to be tested. A more important difference is the matter of who is to be tested. At the airport, all who enter the bonding area are tested. The roadblock is not able to test all drivers on all roads and highways. Some will be selected and some will not. Consent is not possible because the motorists will not know where the roadblock will be. Whereas in most “search” situations disc~mination is a key to reasonableness, in the use of roadblocks the absence of discrimination is a key. The [Indiana] court of appeals employed the balancing test used by the United States Supreme Court in Brown v. Texas. Under this balancing test, the reasonableness of a seizure upon suspicion not focused on a particular individual-as opposed to a situation where an individual is stopped because he or she has aroused suspicion-requires weighing “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with ~nd~v~duaitiberty.” For guidance in further explicating the balancing test in Brown, the court turned to a decision of the Kansas Supreme Court. The Kansas court had, through its examination of a number of Supreme Court cases in various contexts, arrived at a list of thirteen explicit& non-exhaustive factors to be weighed somehow in the balance. The factors listed in State v. Deskins include: (I) The degree of discretion, if any, left to the officer in the fieid; (2) the location designated for the roadblock; (3) the time and duration of the roadblock; (4) standards set by superior officers; (5) advance notice to the public at large; (6) advance warning to the individual approaching motorist; (7) maintenance of safety conditions; (8) degree of fear or anxiety generated by the mode of operation; (9) average length of time each motorist is detained; (I 0) physical factors su~ou~ding the location, type and method of operation; (1 I) the availability of less intrusive methods for cumba~~ng the problem; f f 2) the degree of effectiveness of the procedure; and (13) any other relevant circumstances which might bear upon the test. While it is clear that, in Indiana, the rea~nableness of the search does not require that every factor be found favorable to the state, the relative weight to be accorded each individual factor was teft largely unspecified. The court of appeals did indicate in dicta that extreme of “unbridled discretion” of field off%ers, as opposed to supervisory officers. would by itself dictate a finding of the unreasonableness of the search.8

In applying this reasoning to reach a finding favorable to the State in State v, Garcia, the court of appeals relied largely on the “presence or absence of ‘unbridled discretion and standardless conduct of an officer in the field’ and saw the crucial constitutional task as simply one of striking ‘a balance between the public interest in highway safety, which includes ridding the roads ofdrunk drivers, and the individualqs right to personal security from arbitrary interference by law officers.’ “9 The danger imposed by drunk drivers on the highway is obvious and immediate. It is clear and present. Not only will evidence disap~ar over time, but the damage, if any,

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may be great and innocent people may be harmed. Clearly, the more closely a drug test situation approximates a clear and present danger situation, the more likely it is to be a reasonable search. There are a number of cases in which drug testing by public entities is addressed. In many of these cases, testing is permitted. The majority of such cases involve particularized, well-founded suspicion of drug use. The courts in these cases seem to be substituting “reasonable suspicion” for “probable cause” and drawing exceptions of the warrant-preference rule. The Supreme Court in New Jersey v. iTLO.found that school searches fall into both categories of exceptions.‘0 Based on her analysis of T.LO., which involved a specific student, particularized information, and a search (not a test), and other cases, Ellen Alderman concludes that dragnet testing in the schools would not be constitutional. She observes that, “it is in the schools that public officials are in the best position to detect suspicious activity.” The teacher’s close contact with the student would provide the needed reasonable grounds to believe that he/she is violating the law or the rules of the school and, thus, justify a search of that student.” A rather different conclusion is reached by Michael Stevens in his analysis of the same case. The fourth amendment has been applied to searches conducted in the military in a matter consistent with the Supreme Court’s analysis of school searches. Rather than attribute the “easing of restrictions to which searches by public officials are ordinarily subject” as an accommodation of governmental and private interests, the courts have relied upon the doctrine of “military necessity.” The Court of Military Appeals has held that the fourth amendment’s prohibitions against unreasonable searches and seizures applies with full force to the military unless the considerations of military necessity require the application of a different rule. Military necessity includes not only exigent circumstances but also “unique conditions that may exist within the military society” and “the fundamental necessity for discipline.“12

While noting that the military situation creates a rather different set of circumstances from those of most public employers, The Court of Appeals for the District of Columbia, in upholding the constitutionality of unit drug inspections, has recognized the substantial threat to military readiness and efficiency presented by the increased incidence of drug abuse in the military. “Unlike the civilian population, the military forces are charged with the responsibility of continuously protecting the nation’s interests, both in the domestic and international level.“t3

Stevens’ primary application of 'ILO.is through his development of a new standard, “reasonable under the circumstances,” which adapts the standard of reasonableness. “Probable cause determinations will no longer focus rigidly upon the veracity or reliability of the information or the informant’s basis of knowledge regarding the supplied information, but will be analyzed as a ‘fluid concept-turning on the assessment of probabilities in particular factual contexts.’ ” 14 The military is a significant case in point. While drug tests in other areas may get more attention-such as those conducted by the National Collegiate Athletic Association in recent months-the Department of Defense has been testing armed service members since 198 1. It is estimated that three million urine tests were given in 1984 for

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military personnel. i5 The Department of Defense’ experience provides the basis for the current proposed testing program as well as the common critique that the methodology is not accurate enough. Although a drug abuse testing program was established in 197 1, the Department of Defense did not begin conducting compulsory urinalaysis on a worldwide basis until 1981. In 1980, the Court of Military Appeals seemed to clear the way for such a program when the Chief Judge indicated that Article 3 1, which protects a service member from being compelled to produce evidence against himself, did not apply to the taking of blood samples because body fluids were not within the purview of the Fifth Amendment. That ruling was also visible in the Military Rules of Evidence adopted in September of that year.‘6 On December 28, 1981, the Deputy Secretary of Defense rescinded previous DOD instructions and memoranda on alcohol and drug abuse and set guidelines for the use of urine tests by the services. The “Carlucci Memorandum,” as it became known, eliminated the ban on using test results in disciplinary proceedings and set out the procedures for conducting urine testing.”

Wellington discusses the Court of Military Appeals’ findings with regard to the various issues associated with the urine tests. He finds that the tests have been found to comply with due process and not to violate either the Fourth or the Fifth Amendments. Significantly, of search and seizure, he observed: The Court went on to characterize.. out warrant or probable cause. The circumstances which would have case. Further, the accused had not required to provide a sample just as

a urinalysis “search” as reasonable even though withsample was not collected in an offensive manner or under tended to humiliate or degrade the accused in that been singled out in any way for the urinalysis. He was were all other personnel who reported to his command.‘*

Perhaps Wellington’s most important point, however, is the result of the program. Based on surveys conducted in 1980 and 1982, a significant drop in drug use occurred. In the same service class, drug abuse in the Navy declined from 48 to 20.9%. In the Army, the drop was from 41 to 34.3%. The Air Force saw a decline from 2 1 to 18.1%. Abuse in the Marine Corps dropped from 48 to 25.3%. Moreover, the overall DOD experience showed a decline from 38 to 25.6%. A different survey, covering the period from 1980 to 1985, indicated a DOD-wide drop from 27 to 8.9%.19 These results cannot be attributed to testing alone. The military program is one of testing, education, and discipline. Many of the same elements are included in the administration’s projected program, To be effective and legal, the drug abuse program will have to be very carefully tailored. It is clear that the program will be tested in the courts. The first of a series of cases in the Federal District Court in New Orleans resulted in one program being stopped. That key case was reversed on appeal in the Fifth Circuit. Ultimately, the questions will have to be answered by the Supreme Court, A range of issues must be resolved. In a written statement on the subject of the drug testing of Federal employees before the House Subcommittee on Human Resources, American Civil Liberties Union Attorney Alan Adler discussed several issues, but emphasised the Fourth Amendment. He stated:

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By a large majority, federal and state courts that have recently considered mandatory drug testing requirements imposed by government authority have held them to be unreasonable and therefore unconstitutional if they were not based on a standard of individualized

suspicion .20 In fact, the results of recent cases have been mixed. Alexander Stille has called the resulting case law a “Tower of Babel of conflicting decisions.” An important ruling in the area is that of a U. S. district judge in Iowa who found that even prison guards can only be tested if “specific objective facts and rational inferences” lead one to develop a “reasonable suspicion” of a “specific person.” Chief Judge Harold D. Vietor of Des Moines also ruled that an anonymous tip that a particular prison guard was dealing in drugs met that standard. McDonnell v. Hunter (SD. Iowa, 1985). . In a ruling that seems to contradict the Iowa prison-guard case, a New York trial judge recently permitted the testing of correctional officers. But civil liberties lawyers point out that the contradiction may not be as great as it appears, since the New York testing is part of a regularly scheduled medical examination. See& v. McMickens (N.Y.L.J., Aug. 7 at 7j.2’

Indeed, the courts have not been consistent. In her discussion of City of Palm Bay v. Bauman, Anne Dougherty reports that the local court enjoined the city from requiring urine samples at random and unspecified times. However, tests could be used during annual physicals and if there was probable cause. Moreover, the court agreed that “the city had the right to adopt a policy which prohibited police officers and fire fighters from using controlled substances at any time, on- or off-duty, while employed by the city.“*2 Dougherty also notes cases that approve “reasonable suspicion” tests as screening devices in retaining transit employees. In Division 241 Amalgamated Transit Union v. Suscy and Sanders v. Washington Metropolitan Transit Authorily, courts held that the testing was in the public interest because drug abuse poses a threat to public safety.23 The same threat is not present when the workers deliver or process the mail. Federal Times reports that the U.S. Postal Service recently settled a class action suit in Philadelphia. Applicants who were rejected solely because they tested positive for drug use will be compensated and given priority in hiring. The Postal Service also agreed to halt its urinalysis screening of employment applicants in that division effective December 5, 1986.24 In a letter written for inclusion in recent hearings, the Comptroller General concludes, “although there have been several instances where courts have sustained random urinalaysis testing for drugs, they have done so in situations involving military personnel, prisoners, and race horse jockeys”25 Other cases have involved some element of suspicion as well as a public interest element in order to meet the criterion of reasonableness. EXECUTIVE ORDER 12564 Issued in September 1986, at the height of a public relations blitz against drug abuse, E.O. 12564 represents the Reagan administration’s program to establish a drug-free Federal work place. While most of the public attention has focused on the testing program within the larger effort, the order also requires agency heads to develop plans that must include a statement of agency policy, Employee Assistance Programs, supervisory

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training programs, and procedures to put drug users in contact with rehabilitation services. Together with an ongoing public education program, this effort is based, in part, on the theory that the nation can best attack the drug trade by reducing the demand for illegal drugs. The statement of Assistant Attorney General Richard K. Willard, the administration’s spokesperson before a House Post Officer and Civil Service subcommittee on September ‘2.5,1986, provides a brief description of the legal authority for the testing program and notes that additiona Iegis~ation has been introduced to clarify that authority. First, he explained the basis for actions against an employee and then the general basis for the program. Let me now turn to two statutory issues raised by the President’s drug testing program: the so-called “nexus” requirement contained in the Civil Service Reform Act and the application of the Rehabilitation Act.

With respect to the first issue, we believe that a drug-free requirement for federal employees is reasonably related and furthers “the efficiency of the service” because illegal drug use-whether on or off duty-is inconsistent with the nature of public service, undermines public confidence in the government and entails unwarranted costs in terms of employee productivity. The statutory issue arising from an application of the Civil Service Reform Act, is closely related to the Fourth Amendment balancing test question. As a general proposition, federal personnel law provides that adverse action can be taken against a covered federal employee “only for such cause as will promote the efficiency of the service,” 5 U.S.C. 7513(a). The Civil Service Reform Act of 1978 further barred discrimination against any covered employee or appficant “on the basis of conduct which does not adversely affect the performance of the employee or appIicant or the performance of others,” 5 USC. 2302(b)(~O). Taken together, these two provisions are understood to require a “nexus” between employee misconduct for which severe sanctions may be imposed and the employee’s performance of his job. Within these constraints, the President has broad authority to define conditions of employment. Under 5 U.S.C. 3301, the President may prescribe regulations for the admission of employees that “will best promote the efficiency of the service,” as well as “ascertain the fitness of applicants” for employment. This authority is contained under 5 U.S.C. 730 I which explicitly recognizes the President’s authority to prescribe “regulations for the conduct of employees in the executive branch,” These provisions afford the President broad discretion to define conditions of employment that will best promote the efficiency of the service.2h

The order requires agencies to develop a plan for achieving a drug-free work place. The plans are to have five elements: A statement of policy; Employee Assistance Programs; 0 Supervisory training; 0 Provision for self-referrals; l Provision for identi~ing illegal drug users, including testing. l

l

The order’s provisions for drug testing are set forth in four parts. Section 3, part (a> is the source of the most debate.

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(a)The head of each Executive agency shall establish a program to test for the use of illegal drugs by employees in sensitive positions. The extent to which such employees are tested and the criteria for such testing shall be determined by the head of each agency, based on the nature of the agency’s mission and its employees’ duties, the efficient use of agency resources, and the danger to the public health and safety or national security that could result from the failure of an employee adequately to discharge his or her position.

Part (b) provides for voluntary testing; (c) for tests when there is reasonable suspicion, when there is an accident or unsafe practice, or as part of follow-up to counseling or rehabilitation; and (d) for testing of applicants. Section 4 describes the testing procedures. A minimum of 60 days advance notice is required. Employees must have an opportunity to submit documentation of legitimate drug use. Provisions must be made for retention of records, for retesting, and for confidentiality. Procedures must allow individual privacy. The Secretary of Health and Human Services is required to develop scientific and technical guidelines. Section 5 is a critical section. It provides for actions to be taken when illegal drug users are identified. The section requires referral to the Employee Assistance Program. Agencies are required to “initiate action to discipline an employee who is found to use illegal drugs,” unless the employee volunteers that he/she is a user of illegal drugs, obtains counseling or rehabilitation through the EAP, and quits using illegal drugs. For those who do not quit drug use, the test results may be used as the basis for an adverse action. However, preliminary test results cannot be used unless the employee confirms the test’s accuracy. The program requires that the results must be confirmed by a more reliable test of the sample before being used as the basis for an action: (h) Drug testing shall not be conducted pursuant to this Order for the purpose of gathering evidence for use in criminal proceedings. Agencies are not required to report to the Attorney General for investigation or prosecution any information, allegation, or evidence relating to violations of Title 21 of the United States Code received as a result of the operation of drug testing programs established pursuant to this Order.

In reviewing the order, there are several keys to successful and legal implementation. The first of these is the selection of the employees to be tested. Willard described the five categories of sensitive personnel as people whose jobs have been classified as special sensitive, critical sensitive, or noncritical sensitive under the Federal Personnel Manual, with access to classified information; law enforcement officers, presidential appointees, and then other people designated by the agency head whose duties deal with national security, public health and safety, or some more kinds of duties?’

The Office of Personnel Management in FPM Letter 792-16 defines the term “employee(s) in a sensitive position” by quoting the executive order. Then, the letter describes the options for selecting those to be tested from the “pool.” Some agencies may test all in the pool. Others may find it appropriate not to test all employees in the pool. Those selected-the “testing designated positions”-would be identified by references to duties relating to national security or having clear impact on public health and safety.28 The Department of Defense proposed rules for testing civilian employees on January 13, 1987. The definition for “sensitive position” simply restated the language of the

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executive order with “DOD Component Head” substituted for “agency head.“*” The agency head did not, in fact, exercise judgment in applying the terms beyond decisions made in describing positions for purposes unrelated to this program. The failure to define the test population more precisely and to justify that definition may ultimately be fatal for the program. Once an employee is identified as an illegal drug user, the agency has a number of options, defined in the FPM Letter. Those in sensitive positions must be removed. Those who enter the EAP may be transferred to nonsensitive positions if there are any available. If no nonsensitive position is available for transfer, the employee may be fired on the first “offense” unless the agency head determines that maintaining the employee in the position will not pose a danger to the public .30The potential for an employee’s losing his or her job increases the potential that courts will apply the Fourth Amendment strictly. The provision indicating that the tests will not be used for criminal investigations is not likely to preclude that. Loss of one’s job is a significant punishment. Moreover, the employee’s drug problem may be a “handicap.” Alcohol and drug dependence has been recognized as a “handicap” under various state and Federal employment and discrimination laws, requiring employers to “reasonably accommodate” employees having this handicap. This means, in essence, that employers who are governed by these laws may not discharge, refuse to hire, or otherwise discriminate against an employee because of alcohol or drug dependence if, after reasonable accommodation is made to his condition, the employee is qualified to perform his job.3’

In discussing the application of the Rehabilitation Act, Willard noted that it applied to “addicts” and not to recreational users .32 He assumed that the test will distinguish between the two categories or that such information will somehow become available. The distinction, should it be significant, probably will be a difficult legal question, not the simple observation Willard seems to suggest. The executive order provides considerable discretion for agency heads to design programs that will address real public safety concerns and significant threats to national security. The success or failure of the overall effort, of course, rests on its implementation. The first steps in that process involve defining the population(s) to be tested and determining the potential actions to be taken in those cases where illegal drug use is identified. RECORDS PRIVACY On February 19, 1987, the Department of Health and Human Services issued its Scknti$c and Technical GuiMines for Drug Testing Programs. The guidance covers each step to be followed in the testing process. There is considerable effort to be sensitive to individual concerns. It is, for example, suggested that a bluing agent be added to the water in urinals to lessen the need to have observers with the individuals to be tested. With that control, individual privacy can be better preserved-notwithstanding the efforts of some biased commentators to use the procedure to ridicule the overall program. The guidelines focuses on the chain of custody in handling samples and documents. In this respect, the military model is followed closely. 33 The various tests and standards are

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described in detail. Specific guidance for contracting the testing to private concerns is provided. Ultimately, the concern returns to the records and the statutes that protect individuals’ privacy.

PROTECTION

OF EMPLOYEE RECORDS

Any laboratory contract shall provide that the contractor’s records are subject to the Privacy Act, 5 U.S.C. 552a and the patient access and confidentiality provisions of Pub. L. 100-7 1. The Agency shall establish a Privacy Act System of Records (or modify an existing system) or use any applicable government wide system of records to cover both the Agency’s and the contractor’s records of employee urinalysis results. The contract and the Privacy Act System must have specific provisions that require that employee records are maintained and used with the highest regard for employee privacy.34

The records of urinalysis and their use raise troublesome issues. In a House hearing on March 18, 1986, Representative Gary Ackerman questioned Rodney Smith from the President’s Commission on Organized Crime about the information: “Would you put on his [the employee] permanent record that he refused to undergo drug testing and make that an indelible part of his career, wherever he would go for employment, for somebody to be able to look at that?“35 The topic was also raised in the September 25 House hearing with Mr. Willard: MR. ACKERMAN. And if a person leaves one agency and goes to another, would it, in your estimation, be appropriate for the new agency or new department within the Federal Government for them to know that this employee already had a drug test, failed one, or passed one? Or is nobody ever going to know about these things? Are we giving them just an exercise? MR. WILLARD. If someone fails a drug test and that is confirmed through the confirming test, then that information would be provided to the supervisors to use for disciplinary action as well as for referral for rehabilitation or counseling. And that information could appear in the employee’s record. MR. ACKERMAN. What if that person takes a drug test and fails the test, and then applies for work in a different agency? Does that record follow that employee? MR. WILLARD. I think it probably would., MR. ACKERMAN. So what you are saying, then, is this would become a permanent part of an employee’s employment record? MR. WILLARD. That could certainly be the case, if it is confirmed on the second test.36

The inclusion in the employee’s Official Personnel File will, in fact, be limited. If some action is taken, clearly there will be a record of that action and some information describing the reasons for the action. There might also be a “Fitness of Duty” form, but that would contain little medical information. These and other records, containing personal information, which are individually identified and retrieved must be in Privacy Act Systems of Records. ACLU attorney Alan Adler has observed: And even the Privacy Act, which protects the rights of individuals with respect to personal information being utilized by the Government, contains a “routine use” exception and a specific exception for disclosure of information between agencies relating to law enforcement activities that avoids the general rule requiring the subject individual’s consent to disclosure.37

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Section (b)(7) of the Privacy Act is not so great a threat as Mr. Adler might think. It requires “a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought.” Under the Privacy Act’s section (i)(l), it would be a crime for the custodian of such a record to call a law enforcement agency to suggest that they might have an interest in a particular record, in the absence of a “routine use”covering such a disclosure. Perhaps of equal import, such a disclosure as a violation of the Privacy Act would trigger the Act’s civil remedy (g)(4)(A) and (B) which provide an award of actual damages (not less than $1 ,OOO),court costs, and attorney’s fees. The published “Routine U&for a “Systemof Records” would determine to a substantial degree the disclosures of drug test information, especially the details of test results. Thus, decisions about where this very sensitive information is to be filed will determine the protections afforded to it. FPM Letter 792- 16 and FPM Letter 792- 17 indicate that the results should be filed in a very well-protected system.38 The protection provided to alcohol and drug abuse patient records by the Health and Human Service regulations (42 C.F.R. 2.1, et seq.) is substantial. For example, 42 C.F.R. 2.65 makes clear that information can be shared with law enforcement agencies only under a court order. Such protections remove the threat of information about an employee’s entering a treatment program following that employee throughout his or her career and becoming a barrier to advancement. Violation of 2 1 U.S.C. 117.5, the basis for the regulations, is a criminal act with a fine up to $500 for the first offense and up to $5,000 for additional infractions. Treatment records are also protected by the Privacy Act. However, there are few routine uses and these must be consistent with the requirements of the Drug Abuse Office and Treatment Act of 1972 as amended. The Privacy Act’s Conditions of Disc/osure (5 U.K. 552a (b)) are discretionary and, thus, give way to other statutes when those cover the records in a more restrictive way. Decisions about where to file other related records will determine the levels of protection those records enjoy. As a general rule, the more sensitive the kinds of information usually found in a particular file, the more protection it enjoys. Some records, for example the Official Personnel File (OPF), follow the employee throughout his or her career in the Federal government. That file will generally be available to immediate supervisors and others who evaluate the employee or make decisions about him or her. The Office of Personnel Management’s System of Records, in which the OPF is filed, has an extensive list of “routine uses.” Grievance tiles have far fewer “uses” as befits their more sensitive contents. The OPM System of Records in which the drug rehabilitation records for the agency would be filed has two “uses.” THE PROGRAM AND THE LAW Few will argue with the goal of creating a drug-free Federal work place. Those who do will likely join those who oppose some of the steps proposed to achieve that end. Where will the program and the law come into conflict? What should be done about those conflicts? On January 1, 1987, the American Society for Public Administration (ASPA) proposed a set of Drug Testing Guidelines, first observing that the ASPA is generally opposed

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to mandatory drug testing (as one supposes ASPA also opposes airport searches, breath tests on the highways, and searches at the entrances to the Capitol).3g E.O. 12564 does not follow those guidelines. If it did, there would be very little conflict with the law. There would also be very little testing and virtually no deterrence. The limitation found in the ASPA guidelines is the use of probable cause. Certainly that criterion can be justified in case law and would warm the hearts of civil libertarians. The criteria suggested by the executive order err on the opposite side. They are unreasonably broad. The case law, with regard to administrative searches, is moving toward reasonable cause. That can include situations in which behavior indicates problems, but is short of probable cause. More importantly, it has in several cases included well-defined populations where those doing the testing did not have discretion that might lead to discrimination. For the administration’s program to survive, it must define populations to be tested very carefully, with attention to the impacts of harm to the public safety that preclude delaying testing until after the fact. The FPM Letter does make clear the “selection process does not result in arbitrary, capricious, or discriminatory selections.. . . Agencies are absolutely prohibited from selecting positions for drug testing on the basis of a desire to test particular individual employees.“40 Random or total selection of a carefully defined employee population must be used, even if some employees will be displeased that their positions are not sensitive enough to require testing. Where feasible, drug testing should be incorporated into regularly required physical examinations. Many jobs require annual physical exams and most such examinations involve urinalysis. Additional testing of the sample would not cause the event to be significantly more intrusive and the additional cost would be minimal. Case law suggests that testing is more acceptable when it is part of a routine examination. Pilots, police, and some military personnel already are required to submit to regular tests. Such physical examinations and other rechecks might also be appropriate for some other positions and for security clearances. Because the human body retains evidence of drug use for a period of time, regular checks would still deter drug use and contribute to a drug-free environment. Additional testing based, as the order provides, on supervisor observations or on events such as suspicious accidents meet the reasonable suspicion standard of T.L.O. and, at this point, seem not to be in question. It is likely that the results of such tests would be admissible in the courts. However, on the assumption that rehabilitation is the more desired objective, most illegal drug users so identified should be allowed the option of the Employee Assistance Program. The emphasis for the anti-drug program is deterrence. Therefore, it would seem that rehabilitation of valued employees should be the priority and retribution the last resort. Drug and alcohol abuse should be treated as the handicaps they are. When employees are referred to the Employee Assistance Program, all the records related to their first positive test should be transferred to the program’s custody and the protection thus afforded. Agencies should place a high priority on confidentiality. The privacy concern for the employee is very real and, ultimately work force morale is tied to it. Directions outlined in the FPM Letter should provide adequate protection if followed. A random testing program must be carefully designed to deal with clear, urgent problems. It cannot be a “shotgun” approach. Like any tool, properly used, it may be

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effective and not harmful. Court doctrine on administrative searches seems to be evolving to a balancing of values to define the term “reasonable” in the Fourth Amendment. The test pool, as determined on the basis of addressing a problem; the procedures involved, especially the protections for individual privacy; the implications for those confirmed positive; and the protections afforded information will all weigh in the balance. NOTES AND REFERENCES 1. Phyllis T. Bookspan, “A Balanced Privacy,” Delaware Lawyer (Fall 1986), p. 40. 2. Burt Solomon, “Lobbying Focus: Drug Test Mania,” National Journal (April 12, 1986), p. 9 16. 3. Nathan Reed Garner, “The Fourth Amendment and Mandatory Drug Testing of Students: Phantom Protection?,” New York State Bar Journal (October 1986): p. 41. See also “The Concept of Zones of

4. 5. 6. 7. 8.

9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.

20 21. 22.

Privacy in Personal Information,” a handout used in the training course, “Successful Implementation of the Freedom of Information and Privacy Acts,” U.S. Office of Personnel Management, circa 1979. The handout suggests five zones ranging from facts that are apparent just by looking to information about an individual’s psyche. “Airport Searches: Fourth Amendment Anomalies,” New York University Law Review, 48 (November 1973): 1047. Ibid., pp. 10.50-1051. Jeannie Y. Teteris, “Airport Anti-Hijack Searches after Schneckloth: A Question of Consent or Coercion,” Ohio State Law Journul, 34 (1973): 883. See also “Airport Searches,” pp. 1050- 105 1. Teteris, “Airport Anti-Hijack Searches after Schneckloth” p. 887. R. George Wright, “Intoxication Roadblocks,” Indiana Law Review; 19 (1986): 33-34. See also Jim Mellowitz, “Roadblocks Approved by the Indiana Supreme Court,” National Law Journal (December 15, 1986), p. 52. In this article, Justice Alfred J. Pivamik is quoted: “Our society has a grave concern in apprehending and deterring drunken driving and.. traditional methods have not effectively combatted the problem. Consequently, public interest in detecting and deterring drunken driving is to be heavily weighed in favor of this particular roadblock procedure.” Scott Freed, “Seizure by Roadblock: Decision Law on the Constitutionality of Drunk Driving Roadblocks,” Akron Law Review, 19 (Winter 1986): 483. This article discusses the U.S. Supreme Court’s dictum in Delaware v. Prouse. Wright, “Intoxication Roadblocks,” p. 4 1. Ellen M. Alderman, “Dragnet Drug Testing in Public Schools and the Fourth Amendment,” Columbia Law Review, 86 (1986): 857. Ibid., p. 873. Captain Michael L. Stevens, “New Jersey v. T.I.0.: Towards a More Reasonable Standard for Military Search Authorizations,” The Air Force Law Revr&v (1985). pp. 341-342. Ibid., p. 346. Ibid., pp. 352-355. Harrison Donnelly, “Privacy in the Workplace,” Editorial Research Reports, 1 (March 2 1, 1986): 2 10. This source is published by the Congressional Quarterly, Washington, D.C. Major J.A. Wellington, “The War on Drugs in the Military Courtroom,” Federal Bar News and Journ 3 1 (September/October 1984): 334. Ibid., p. 334. Ibid., p. 337. Ibid., pp. 337-338; and Deborah Kasouf, “Drug Tests Spark Wide-Ranging Debate: Testing Pros and Cons,” Public Administration Times (November 11, 1986), p. 1. This article is part 3 of a series “Drugs in the Workplace.” House Committee on Post Office and Civil Service Subcommittee on Human Resources, “Drug Testing Federal Employees (Part II)” (Washington, DC.: GPO, 1987), p. 181. Alexander Stille, “Some Judges Say No to Drug Tests, ” National Law Journal (October 6, 1986), pp. 1,30. Anne Nason Dougherty, “Drug Testing: America’s New Work Ethic?,” Srefson I!LZW Review, 15 (Summer 1986): 884.

Drug Testing and Privacy law

23. 24. 25. 26.

27. 28. 29.

30. 31. 32. 33. 34.

35.

36. 37. 38.

71

Ibid., pp. 894,895n. J.P. Mackley, “Postal Scene: USPS to Stop Drug Testing of Applicants in Philadelphia,” Federal Times (February 23, 1987): 16. House Committee on Post Ofice and Civil Service Subcommittee on Human Resources, p. 158. Ibid., pp. 139-140. On pages 114, 129, and 137-138, Willard suggests the argument that government the employer is different from government per se. For a discussion of this concept, see Philip B. Lombardi, “Constitutional Law: Urinalysis and the Public Employer-Another Well-Delineated Exception to the Warrant Requirement.,? ” Oklahoma Law Reviav, 39 (Summer 1986): 257. After noting the case law in which the concept has been accepted, Lombardi opines: “Indeed, the true nature of the employer exception may be stated in doublethink: The government is not government when it says it is not” (p. 267). House Committ~ on Post Office and Civil Service Subcommi~ee on Human Resources, p. 115. U.S. Of&e of Personnel Management, FPM Letter 792-16 (November 28, 1986), 3a(2Xb). 52 Federaf Register 1341. See also Anne Laurent, “Army Drug Testing Plagued by Mishaps, Court Action,” Feded Times (March 16, 1987), pp. 3, 18; and “Aberdeen Resumes Some Tests,” Federaf Times (March 23,1987), p. 6. The Army at Aberdeen Proving Ground would appear to have acted in a very responsible manner to define the positions to be tested, “. people in aviation and aviation safety, law enforcement, drug and alcohol prevention and those requiting special access clearance in nuclear and chemical programs.” The serious problems with the program appear to lie in the failure of personnel to follow the rules. While the procedure is designed to be legal, it will be legal only if it is followed. When personnel “cut comers” for whatever reason in this program, they very quickly move in to the realm of the unconstitutional. FPM Letter 792-165, b. Victor Schacter and Thomas E. Geidt, “Cracking down on Drugs,” Across the Bourd(November 1985), p. 30. House Committee on Post Office and Civil Service Subcommittee on Human Resources, p. 142. Wellington, “The War on Drugs in the Military Cou~~rn,“ pp. 335-336. U.S. Department of Health and Human Services, Alcohol, Drug Abuse, and Mental Heahh Administration, “Scientific and Technical Guidelines for Drug Testing Programs” 52 Federal Register30643 (August 14, 1987). House Committee on Post Office and Civil Service Subcommittee on Human Resources, “Drug Testing Federal Employees” (Washington, D.C.: GPO, 1986), p. 18. This document is the hearing in which Representative Ackerman staged his publicity stunt of asking this witness to provide the committee with a urine sample before beginning. House Committee on Post Office and Civil Service Subcommittee on Human Resources, “Drug Testing Federal Employees (Part II),” p. 108. Ibid., p. 170. 4.f. Confidentiality of Test Results. Agency drug testing programs under E.O. 12564 shall contain procedures to protect the confidentiality of test results and related medical rehabilitation records. Records of the identity, diagnosis, prognosis, or ~eatment of any patient which are maintained in (1) connection with buoyance of a drug abuse prevention program conducted by a Federal agency must be kept ~on~dential and may be disclosed only under limited c~cumstances and for specitic purposes. Agencies may wish to refer to regulations issued by the Department of Health and Human Services (42 C.F.R. 2.1, et seq. ( 1986)) on maintaining the contidentiality of treatment records. Drug abuse treatment records may be disclosed without the consent of the patient only: (2) to medical personnel to the extent necessary to meet a genuine medical emergency; (a) to qualified personnel for conducting scientific research, management audits, financial (b) audits, or program evaluation, with all identifying information removed from the data; or if authorized by an appropriate court order granted after application showing good cause. (c) Any other disclosure may be made only with the written consent of the patient, and only under (3) the circumstances set out below. Such consensual disclosure may be made to the patient’s employer for verification of treatment or a general evaluation of treatment progress.

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(6)

(7)

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Agency drug testing programs should include confidentiality protections consistent with the above requirements. These protections should extend to drug testing rewards as well as to treatment rehabilitation records. Accordingly, drug abuse treatment of rehabilitation records may not be otherwise disclosed by agencies without the consent of the employee involved. A sample consent for release of patient information during and after treatment or rehabilitation and a sample release memorandum are included in attachments 2 and 3, respectively. Any disclosure without such consent is strictly prohibited. As part of the drug testing procedure, confirmed positive test results should only be released to the agency’s medical review official (as defined in the HHS guidelines), the administrator of the agency Employee Assistant [sic] Program (EAP), and to the management official empowered to recommend or take action. After examination by the medical review official, confirmed positive test results will be forwarded to the agency EAP program administrator and to the management official empowered to recommend or take action. Drug test results will be protected under the provisions of the Privacy Act, 5 USC. 552a, etseq., and may not be released in violation of that Act. Records of unconfirmed positive test results and negative test results will be destroyed by the laboratory. Concerned that OPM’s guidelines were not mandatory, the Congress included key requirements for handling records in Pub. L. 100-71.

“ASPA Suggests Drug Testing Guidelines,” FPM Letter 792-16, 3, a, (3).

Public Adminis~ution Times (January

I,

1987).p. 6