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On Nov. 16, 2006, the U.S. Department of Health and Human Services (DHHS) withdrew its proposed revisions to mandatory guidelines for federal workplace drug testing (69 Fed. Reg. 19673-01 (April 13, 2004)), which would have allowed the testing of alternative specimens such as hair, oral fluids and sweat. The agency cited concerns that the proposed procedures were unreliable. The withdrawal of these proposed federal regulations has been viewed as a victory for anti-drug testing advocacy groups and labor unions, which have opposed workplace drug testing programs for more than 20 years. Meanwhile, the debate continues over the value of workplace drug testing and appropriate testing procedures. Drug testing became a fact of life for many employees after 1986, when President Reagan issued an executive order requiring federal agencies to implement workplace drug testing. In 1989, the U.S. Department of Transportation (DOT) became one of the first federal agencies to mandate random drug testing of certain employees in safety-sensitive positions, such as airline pilots, interstate truck drivers and railroad conductors. Many other public employers, such as police departments, fire departments and school districts, followed the lead of the DOT and implemented comprehensive programs, including random testing, for employees in safety-sensitive positions. The U.S. Omnibus Transportation Employee Testing Act of 1991 modified the DOT regulations to include random testing for alcohol after a highly publicized derailment of a New York City subway train. By 1992, the DOT drug testing regulations and the programs established for public employees had withstood a number of legal challenges. Typically in these challenges, employees and labor unions have contended that drug testing of public employees violates the U.S. Constitution’s prohibition against unreasonable searches and seizures. However, in these early challenges, such as Skinner v. Railway Labor Executives, 409 U.S. 602 (1989), courts upheld random drug testing programs for employees in safety-sensitive positions because the government could demonstrate a compelling state interest in safety that outweighed the employee’s right to privacy. Not all courts that have balanced the employee’s right to privacy against government interests have come down on the side of the government. In Petersen v. City of Mesa, 83 P.3d 35 (Ariz. 2004), a firefighter alleged that random testing violated his rights under both the Arizona and federal constitutions. The trial court held that random drug testing violated the Arizona Constitution. The Arizona Court of Appeals reversed. However, the Arizona Supreme Court held that the program’s random-testing component was unreasonable, and therefore violated the Fourth Amendment to the U.S. Constitution. The city of Mesa conceded that the record was devoid of any indication that officials had ever encountered any drug problem involving its firefighters. The city failed to define any real and substantial risk that random, suspicionless testing was designed to address. Balancing the firefighters’ privacy interests against the interests the city advanced in favor of its program’s random component, the Arizona Supreme Court ruled that the city’s generalized and unsubstantiated interest in deterring and detecting alcohol and drug use among its firefighters by conducting random drug tests was insufficient to overcome even the lessened privacy interests of the firefighters. Mixed case law The U.S. Supreme Court upheld the random drug testing of junior high and high school student athletes in Vernonia School District v. Acton, 515 U.S. 656 (1995). The court concluded that the school district had a legitimate concern that drugs increased the risk of sports-related injuries. In Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002), the court extended the holding of Vernonia School District to allow random testing of all middle and high school students who participate in extracurricular activities, concluding that securing order in the school environment sometimes requires that students be subjected to greater controls than those appropriate for adults. Many employers with a unionized work force are faced with implementing an arbitrator’s award, under a collective bargaining agreement, returning an employee to work who has tested positive for illegal drugs even in a safety-sensitive position. In Eastern Associated Coal Corp. v. United Mine Workers, 531 U.S. 57 (2000), the U.S. Supreme Court concluded that an arbitrator does not abuse his or her discretion by returning an employee to work who has tested positive, even when the employee has tested positive twice. The issue before the court was whether an arbitrator violated public policy by returning a truck driver covered by DOT regulations to work under these circumstances. The court held that the Omnibus Transportation Employee Testing Act declared that rehabilitation is a critical component of testing, and does not require the termination of an employee who tests positive for drugs. Therefore, the court concluded, the arbitrator’s decision to return the employee to work was consistent with applicable DOT regulations. The number of employers, both public and private, that conducted drug testing, including random drug testing, skyrocketed during the late 1980s and 1990s. According to the American Management Association (AMA), in 1986 only 21.5% of companies tested employees. By 1996, 81% did. The number of Fortune 200 companies that require pre-employment or random testing grew from six in 1983 to 196 in 1996, the AMA found. American Management Association, Workplace Testing and Monitoring (1998), available at www.amanet.org/research/archive_1998_1995.htm. For employees of private companies, a number of courts have concluded that, absent a collective bargaining agreement or state or local law to the contrary, companies are free to implement drug programs. In an “at-will” employment relationship, an employer has the right to change the terms and conditions of employment, and the employee’s only recourse is to quit rather than undergo drug testing. Testing on the decline However, many private employers are questioning the value of workplace drug testing in eradicating drug use among employees. In reality, the number of positive drug tests has declined to the lowest level since the late 1980s. According to the AMA, drug testing is at its lowest level in a decade. In its 2000 survey of employers in various industries, the AMA found that although 78% of companies engaged in manufacturing conduct drug tests of applicants for employment, only 42% test their current employees. These figures are even lower in other industries. Fewer than 20% of financial or business services organizations drug test their current employees. American Management Association, Workplace Testing and Monitoring (2000), available at www.amanet.org/research/archive_2002_1999.htm. Although on the decline, drug testing remains a major business. American employers spend an estimated $1 billion a year to test 20 million employees. See Edward M. Shepard and Thomas J. Clifton, “Drug Testing and Labor Productivity: Estimates Applying a Production Function Model,” Le Moyne College Institute of Industrial Relations, Research Paper No. 18, at 1 (1998). Employers are seeking alternatives to the relatively high cost of drug tests based on analysis of urine specimens, and are beginning to look to less expensive alternatives, such as testing of samples of employees’ hair, sweat and oral fluids. However, employers must proceed with caution in adopting the alternative-specimen approach for their drug testing programs. Currently, federal regulations allow government employers to use only urinalysis as an indicator of drug use. Urinalysis detects the presence of inactive drug metabolites (compounds produced from chemical changes of a psychoactive substance in the body), not the drug itself, and a positive test result-even when confirmed-does not indicate impairment. Although DHHS proposed the regulations, cited above, that would allow companies covered by the DOT regulations to use alternative specimens, the future of this proposal is uncertain at best. A number of concerns have been raised. Critics contend, for example, that hair-follicle testing may yield varying results depending on the person’s race and/or hair color. Also, hair testing cannot detect current use of illegal drugs and may detect drug use that occurred many months before the test. For this reason, hair testing has been most popular in connection with testing of applicants for employment. Employers, especially those conducting business in a number of states, must be cognizant of the fact that many states have enacted legislation regulating workplace drug testing of employees in the private sector. Some state regulations do not provide for the use of alternative specimens in drug testing. Several states, including Georgia, Maryland, Minnesota and Ohio, require employers to use DHHS procedural guidelines, in effect prohibiting the use of alternative specimens. The legality of properly conducted testing of urine specimens has been thoroughly vetted through the courts, including the U.S. Supreme Court, for federal employees. The legality of testing alternative specimens has not been as widely litigated, and may be subject to attack on technical grounds. The validity of testing hair specimens was contested in a challenge to a Boston Police Department program that tests officers’ hair samples annually for evidence of drug use. Since the annual drug testing began in 1999, 75 officers have failed the tests, and 26 of them flunked a second test. Seven African-American officers who were fired because of positive drug tests filed suit, alleging that the test results were unreliable. They contend that they never used cocaine and that the positive tests resulted either from environmental contamination to which they were particularly susceptible, given their exposure to cocaine as part of their jobs, or because the tests are biased against people of color. They cited evidence that drug compounds show up more readily in dark hair than in light hair. In contrast to the results of the Boston tests, only 0.4% of the 150,000 employees subjected to DOT-mandated drug testing were positive for illegal drugs in 2004. Jones v. City of Boston, No. 05-3123-B (Suffolk County, Mass., Super. Ct., filed July 26, 2005). Lobbying Groups such as the Drug and Alcohol Testing Industry Association (DATIA) argue that alternative-specimen tests are indeed reliable, and in many cases are more accurate than urinalysis. DATIA criticized DHHS’ decision to withdraw the proposal regulations, arguing that the federal drug testing guidelines, unchanged since 1988, need updating. Even though groups such as the National Organization for the Reform of Marijuana Laws have hailed the withdrawal of the proposed alternative-specimen regulations as a victory, DATIA vows to continue to work on alternative matrices as a top agenda item for its activities in Washington. See www.datia.org/advocacy/index.htm#hhs and www.ornorml.org/ forums/index.php?showtopic=1214. Since no federal drug testing regulations apply to all employers, it seems likely that advocacy groups will step up lobbying efforts with respect to alternative-specimen testing at the state level. Before a company implements a substance-abuse policy that includes the use of alternative-specimen testing, the company should make sure that its planned testing procedure is legal in all of the states where the company conducts business and intends to subject employees to the testing. Barbara L. Johnson is a partner in the employment law department in Paul, Hastings, Janofsky & Walker’s Washington office. She represents employers in jury trials and class actions.

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