Reasonable Suspicion – 4th Amendment Protections

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." In most cases, the Constitution requires the government to obtain a warrant supported by probable cause to search a person. However, when government has a special need for a search, such as protecting public safety, courts have upheld the search(s) 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. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995).

The case of Peterson v. City of Mesa ((CV-03-0100-pr, 2004)) is based on the issue of reasonable suspicion when this firefighter was tested on a random basis for drugs under a suspicion-less basis and the case focused on the constitutionality of a city's random, suspicion-less drug testing of its firefighters.

The city’s substance abuse program was implemented after Peterson was hired and had the following parameters for testing of firefighters : (1) if the Department has reasonable suspicion to believe an individual firefighter has abused drugs or alcohol;  (2) after a firefighter is involved in an accident on the job;  (3) following a firefighter's return to duty or as a follow-up to “a determination that a covered member is in need of assistance”;  and (4) “on an unannounced and random basis spread reasonably throughout the calendar year.” The randomness of the testing was dependent on a computer program with a testing compliance of thirty (30) minutes after notification and can occur any time before, during or after work.

Petersen filed a complaint in superior court seeking relief, alleging that the random testing component of the program violated his rights under both Article II, Section 8 of the Arizona Constitution and the Fourth Amendment to the United States Constitution. After bouncing around the Arizona court system where the trial court enjoined (stopped) the department from continuing the random suspicion-less aspect of the program and the appeals court reversed based on the “reasonableness under the state and federal law”, this case found itself at the Supreme Court level. The Supreme Court held that the Program's random testing component is unreasonable and therefore violates the Fourth Amendment to the United States Constitution.

Balancing Petersen's privacy interests against the interests the City advances in favor of the program's random component, this court concluded that the City's generalized and unsubstantiated interest in deterring and detecting alcohol and drug use among the City's firefighters by conducting random drug tests is insufficient to overcome even the lessened privacy interests of the firefighters in this case. The situation the court considers cannot be described as one of the “limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, [and in which] a search may be reasonable despite the absence of such suspicion.”

The holding of the court is the program's random component falls outside the “closely guarded category of constitutionally permissible suspicion less searches and violates the Fourth Amendment to the United States Constitution. The Court commended the City's interest in deterring drug use among firefighters, the program also requires testing upon reasonable suspicion, after an accident on the job, and following a return to duty or as a follow-up to “a determination that a covered member is in need of assistance.”  There was no basis for concluding that these testing alternatives fail to deter and detect drug use among the City's firefighters.

The Drug Problem - Illegal drug use has become a national issue affecting public employees including firefighters. As such, fire departments are testing for illegal drugs in the quest for a drug free workplace. As we have seen in Peterson v. City of Mesa, even a well-intentioned program can be subject to a legal challenge if the organization unreasonably intrudes illegally into the constitutional protections of those employees.

According to a report from Quest Diagnostics, there is an increase in positive drug testing among public safety employees possibly due to the legalization of Marijuana in Colorado, Washington and California as well as an increased positive rate for amphetamines, including prescription medications such as Adderall. According to the National Drug-Free Workplace Alliance, 75 percent of the 17.5 million illicit drug users 18 and over are currently employed.

Alcohol in the fire service - Firefighters live and work within a culture in which alcohol is socially acceptable, and a shift to alcohol as self-medication is common. Along with alcohol, over the counter medication over use can affect the performance of a firefighter. Occasionally a firefighter comes to work under the influence. What are the department’s steps to test and possibly steer this firefighter to recovery programs?

Reasonable Suspicion Testing - It is important that fire departments have clear support for findings of a reasonable suspicion documented by the supervisor and witness(es) prior to testing. The department’s drug policy should contain forms that must be filled out prior to testing that clearly documents that support the reasonable suspicion by the supervisor and includes consent to test by the employee (see link to drug testing policy – below). Those forms must have sufficient room on them so the evaluating supervisor can articulate specific findings made while observing the behavior of the employee and any statements made by the employee. It would be reasonable of the supervisor could articulate multiple grounds for suspicion. It is also important that the supervisors who observe the signs of drug or alcohol use are trained to recognize such signs

Testing - What do we test for? Many fire departments test for the basic five panel— amphetamines, cocaine, marijuana, opiates and PCP which may not be sufficient number or types of drugs today and the department may want to increase the panel to include more exotic drugs and prescription drugs. Prescription drugs have a couple of pitfalls as they are prescribed by a medical professional and has the medication affected the individual to the point of affecting their job duties? Sometimes the use of prescription medications may reveal the firefighter has a disability, which raises ADA issues. The Equal Employment Opportunity Commission has gone after some employers for terminating employees who take prescription drugs without assessing their individual circumstances. Confidentiality is the key component of any testing and the results should be kept in a separate medical file for each of your firefighters and away from the firefighters personnel file.

Not all testing requires prior consent such as:

Pre-Employment testing - following a conditional offer of employment where offers of employment are contingent on an applicant passing a drug test. Pre-employment drug testing involves a lower expectation of privacy and therefore courts are somewhat liberal in upholding such tests. In Brown v. Winkle( 28715 F.Supp. 195; N.D.Ohio 1989) a federal district court in Ohio refused to enjoin a fire department’s pre-employment drug testing program.

Post-Accident Drug Testing - Fire departments may test firefighters for drug use after an accident. Skinner (Skinner v. Railway Labor Executives’ A**’n, 489 U.S. 602, 619 (1989)) held that post-accident procedures are intended to provide valuable information that can help to pinpoint the cause of an accident, and to deter drug use "by ensuring that employees . . . know that they will be tested upon the occurrence of a triggering event, in which the timing of which no employee can predict with certainty”. In this opinion, the Supreme Court held that post-accident drug testing was reasonable because the invasion of privacy was minimal and often involved employees who worked in sensitive positions.

Return-to-Duty Drug Testing - Return-to-duty drug testing usually occurs when an employee has either tested positive in the past or has admitted to drug use, has sought treatment and is ready to return to work. Many times the employee signs a Last Chance Agreement allowing the employer to administer and return-to-work drug test and random testing for a certain period of time, usually up to one year giving the employee a second chance. As such, there are very few cases which address return-to-duty testing.

Random Drug Testing - A public employer can only impose a random drug-testing program on its employees, absent individualized or reasonable suspicion, if the employee works in a safety sensitive position. Since firefighters are safety-sensitive employees, they may be subjected to random drug testing under a well-defined policy and those covered by a labor agreement must negotiate the effects of a random drug testing program on their members.

Marijuana - The legalization of marijuana does not indicate an abandonment of their drug-free workplace policy or stop drug testing. Drug testing policies must ensure that the policy clearly and unambiguously addresses illegal substances and legal substances, including marijuana and alcohol. With marijuana testing the problems is a positive test may not indicate an adverse influence on the firefighter’s performance. Employers may also want to reconsider how to conduct drug tests for marijuana by testing blood which are much more accurate indicator for active THC than a urine sample which identifies the past 28 days of the employee’s use. In Washington State, law enforcement has only provided guidance as to the level of THC in blood that constitutes being “under the influence.” There is no “under the influence” limit for the presence of marijuana in urine, hair, or sweat.

Training - A reasonable suspicion search should be "under circumstances exhibiting individualized suspicion of on-the-job impairment and with evidence of substantial reliability." In various court cases, the courts have articulated the following factors to provide a basis for reasonable suspicion testing: (1) observable phenomena, such as direct observation of an employee engaged in drug-related activity or exhibiting the physical symptoms of being under the influence of a drug; (2) a pattern of abnormal conduct or erratic behavior; (3) an arrest or conviction for a drug- related offense, or the identification of an employee as the focus of a criminal investigation into illegal drug possession, use or trafficking; (4) information provided either by reliable or credible sources or independently corroborated; (5) sudden change in work performance including unexplained or excessive absenteeism, tardiness or workplace negligence; or (6) evidence that the employee has tampered with a drug test.

Workplace drug testing is an essential tool in addressing and managing today’s growing drug abuse problem. There is much more to workplace drug testing than just testing for marijuana or alcohol. The use of other illicit drugs and the misuse of prescription drugs cause significant problems for employers and for employees. An effective drug-free workplace program includes drug testing for many widely used drugs and an effective drug testing program has noticeable reductions in work place injuries, deaths, and sick days. A study in Washington State showed that for three industry groups (construction, manufacturing and services), injury rates declined significantly following the implementation of drug testing.

It is our responsibility to promote a drug free and safe workplace. With education, well-crafted and enforced policies, training and outside resources this is an achievable goal.

Endnotes:
An Analysis of Firefighter Drug Testing under the Fourth Amendment. Author David Fish. International Journal of Drug Testing, Volume2 https://www.firefightersabcs.com/files/FirefightersDT&FourthAme...
http://drugfreebusiness.org/Media/documents/IBH_workplacetesting.pdf

National Drug-Free Workplace Alliance

Various Court cases as contained within the document

Health Services Research, 39(1), 91-110.

Policy Template
http://www.fireengineering.com/content/dam/fe/online-articles/docum...