AN ANALYSIS OF FIREFIGHTER DRUG TESTING UNDER THE FOURTH AMENDMENT

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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 laws1 , 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.2 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.6 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, 10 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."11 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,13 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.