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Legality of Drug Testing Depends On The Situation

If a Massachusetts company has a random drug testing policy, is that legal?
Federal law mandates random drug testing policies for certain businesses that employ commercial drivers. The U.S. Department of Transportation has specific substance abuse regulations.

However, unlike the mandated Federal law in specific situations, Massachusetts does not have a drug testing statute. As such, there is no Massachusetts statute that directly prohibits drug testing. There is however the Massachusetts Article 14 of the Massachusetts Declaration of Rights, which protects citizens from unreasonable searches and seizures. There is also the Massachusetts privacy statute that states “a person shall have a right against unreasonable, substantial or serious interference with his privacy.” Of course, the question becomes, what is unreasonable, substantial or serious interference with one’s privacy.

Random drug testing is mandated by Federal statute. At a minimum, any random drug testing policy challenge must pass the U.S. Constitution’s Fourth Amendment, Massachusetts’ Article 14, and Massachusetts Privacy Statute.

There are few activities in our society more personal or private than the passing of urine. Accordingly, the United States Supreme Court has held that the collection and testing of urine is a search under the Fourth Amendment. Similarly, Massachusetts has held random urinalysis testing also constitutes a search and seizure under Article 14.

If such testing is a search and seizure, when can random drug testing survive state and federal constitutional scrutiny?

A Superior Court in Suffolk County addressed this issue. Although not binding authority, it does provide persuasive insight. In that case, an employee, was a motor-person for the Massachusetts Bay Transportation Authority (MBTA). In essence, she drove the rapid transit trains. She was randomly selected to provide a urine sample for drug screening. At the time, the MBTA had no reason to believe that she had ever been under the influence of illegal drugs. She tested positive for cocaine. The MBTA had a progressive disciplinary scheme, and as such, she was terminated since this was her “final chance” step.

In court, the MBTA met its burden of demonstrating that the search of its employee was not unreasonable because the MBTA had a compelling interest in deterring drug use before it directly impaired the job performance of safety-sensitive employees such as motor-persons.

The court noted that the expectation of privacy of MBTA employees subject to random searches are diminished by reason of the employees’ participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees. Safety-sensitive employees have duties fraught with risk of injury to others that even a momentary lapse of attention can have disastrous consequences. Such employees can cause great human loss before any signs of impairment become noticeable to supervisors or others.

The employee’s position as a motor-person put her in a situation where she could have been very dangerous to the lives of the riding public, as well as other workers. The Fourth Amendment has been held to permit random drug testing of safety-sensitive employees in the transportation industry. As such the MBTA’s random drug policy passed the Fourth Amendment scrutiny. However, the fact that the MBTA’s policy passes muster under the Fourth Amendment does not automatically mean that it is permitted under our state constitution.

Under our state constitution, an intrusive testing process, such as urinalysis, can be justified under Article 14 only if there is a strong factual showing that a substantial public need exists for the imposition of such a process. The MBTA made that showing with respect to the train operator. The court noted that the MBTA acted not out of any abstract commitment to reducing drug usage in society, but to deter and detect a specific type of drug use among a specific category of personnel whose usage of such drugs had the potential of creating a significant risk to public safety.

So, thus far, the employee’s assertion that her rights were violated as to the U.S. Fourth Amendment and Massachusetts’ Article 14 have failed. What about the Massachusetts Privacy statute?

When dealing with the privacy statute, the courts focus is on the degree of intrusion. The courts also consider the employer’s legitimate business interest balanced against the employee’s alleged invasion of privacy. The privacy statute forbids the required disclosure of facts about an individual that are of a highly personal or intimate nature where there exists no legitimate countervailing interest.

As discussed above, the MBTA had a compelling interest in determining whether drivers of rapid transit trains were using illicit drugs and in deterring such use. Those interests outweigh the employee’s privacy interest. Furthermore, the testing procedures themselves to which the employee was subjected were not unreasonably intrusive to an objective person. There was no visual monitoring of her urination. There is also no evidence that the dissemination or publication of information concerning Bennett was overly broad or that the MBTA sought any information through its testing beyond the presence of the specified drug metabolites.

In conclusion, there is federal legislation that mandates some businesses conduct random drug testing. However, whether a business is mandated or not to conduct such testing, the legal process in determining whether random drug testing in specific situations is legal is the same. Any random drug testing policy must, at a minimum, pass the Fourth Amendment’s scrutiny, Massachusetts’ Article 14 and the Massachusetts Privacy Statute. The determination will depend upon the particular facts of the situation. The greater the business and societal interest in protecting the public from harm the more likely such a policy will be upheld. The more intrusive the procedure, the less likely the use of illicit drugs will affect the employee’s performance, the fact the job is not “safety-sensitive”, the more the policy will be found unconstitutional and thus invalid.

There is no fine line determination of when such a policy is valid and when one is not. As such, before establishing any such policy in this rapidly changing area of the law, an employer needs to consult legal counsel.