A RISK MANAGEMENT ANALYSIS OF EMPLOYEE DRUG ABUSE AND TESTING FOR THE SMALL BUSINESS OWNER Robert J. Aalberts, Louisiana State University-Shreveport Harvey W. Rubin, Louisiana State University-Shreveport ABSTRACT The purpose of this article is to provide a risk management analysis of the prevailing thoughts on the subject of drug abuse and testing as they potentially affect the small business owner. The analysis will emphasize two critical steps in the risk management process: identification and measurement. INTRODUCTION Few issues in recent memory have stirred the American public as passionately as drug abuse. In the workplace, drug abuse is a particularly vexing problem which businesses are now fighting with increasing ferocity. Indeed, a recent Newsweek article estimated that educating and testing programs implemented to detect employee drug use have become a $250 million industry.(8) The reasons for such an expenditure are undeniably compelling. It has been estimated that drug and alcohol abuse costs U.S. industry $30 to $60 billion a year in absenteeism, lost productivity, accidents and health care. More specifically, the U.S. Chamber of Commerce states that a recreational drug user is a third less productive than other employees and in all probability is four times likelier to be involved with injuries on the job. The drug user is also three times more inclined to be tardy, twice as likely to request early leave, and two and half times more probable to be out eight days or more.(4) It is no wonder that employers are being vigorous in their attempts to root out drug users through drug testing and other means. In March of 1989, the U.S. Supreme Court issued two important and far-reaching decisions on drug testing in the workplace. The cases, Skinner v. Railway Labor Executives Association(9) and National Treasury Employees Union v. Von Raab(6) dealt with two drug testing schemes, one for railroad workers and the other for U.S. customs workers. The implications of these cases appear to give certain employers both large and small, even in the private sector, greater latitude in testing workers for drugs. Employees, on the other hand, including unionized workers who thought they were contractually protected, may have legitimate concern that their privacy rights are eroding away. IDENTIFICATION: THE SKINNER CASE - GOVERNMENT ACTION IN THE PRIVATE SECTOR Generally speaking, federal constitutional protections afforded workers in the public sector from illegal governmental conduct do not apply in the private sector. This means that a government worker at all levels, federal, state and local, is protected from unreasonable searches and seizures as defined in the Fourth Amendment. These protections include how drug testing can be conducted. Furthermore, a government worker would be protected under the Due Process and Equal Protection Clauses of the Fifth Amendment from illegal government conduct.(2) In Skinner, however, the issue of what constitutes governmental conduct necessary for Constitutional protections, has become clouded. In Skinner the Court ruled that the railroads .... "must be viewed as an instrument or agent of the government."(9, p.1411) The implications of this ruling are very important. That is since the Federal Railway Administration (FRA) regulations now pre-empt state laws under the Constitution's Supremacy Clause plus supersede any private agreements, federal law including the Fourth Amendment and other relevant Constitutional provisions, would necessarily apply to the railroad's drug testing scheme. This holding becomes critical since the railroads' drug testing scheme, discussed later in the opinion, was ruled to be constitutional under the Fourth Amendment. The Departments of Defense (DOD) and Transportation (DOT), among other federal agencies have, like the FRA, issued regulations(5) that are somewhat similar to those that were ruled on in both the Skinner and Von Raab cases.(7, p. 125) These regulations will affect the many contractors who do business with these governmental entities or are subject to their regulations. Those businesses, as agents of the government would, like the railroads, be controlled by the Fourth Amendment and interpretations of it as enunciated in both Skinner and Von Raab. IDENTIFICATION: LEGAL IMPEDIMENTS TO DRUG TESTING - THE VON RAAB CASE TAKES A NEW

DIRECTION Three of the most controversial and thus major legal and ethical impediments to drug testing have been: (1) should drug testing be permitted when there is no perceived or documented drug problem in the targeted workplace?; (2) are the testing methods reliable? and (3) does a positive drug test need to prove that there was on-the-job impairment?(10) As will be explained, the Von Raab case has answered all three of these questions. Can a Workplace Be Testing Without a Perceived or Documented Problem? As mentioned, one major problem with implementing drug testing programs has been the absence of specific evidence that there is a drug problem grave enough to warrant the justification of intruding into a workers' privacy. Indeed, in the U.S. Customs Service, only five out of 3,600 employees tested positive under this program. Such an insignificant number, in the opinion of the Treasury Employees Union, gives rise to a "suspicionless search" that is not a "sufficiently productive mechanism to justify [its] intrusion upon Fourth Amendment interests."(6, p. 1394-1395) The Supreme Court was not moved by the Union's argument. The Court instead ruled that even though only a few were innocent of drug use, that fact did not impugn the program. The Court's rationale was that since drug use is one of society's most serious problems there is little reason to think that any workplace is immune from it. And since detection of drug use is difficult it becomes necessary to use such a program so long as it advances a government policy. The Court further contended that such a program is similar to suspicionless housing code inspections(3) and stopping of motorists at checkpoints,(ll) both of which are legal. How Reliable Does the Testing Methodology Have To Be? The Supreme Court in Von Raab also discussed the issue of the reliability of drug tests. In effect the Court sanctioned the drug testing procedures promulgated by the Department of Health and Human Services (HHS)(13) and implemented by the U.S. Customs Service in its testing program. The Supreme Court found the procedure as used by the Customs Service, quite satisfactory because the "collection and analysis of the requisite samples do not carry the grave potential for arbitrary and oppressive interference with the privacy and personal security of individuals that the Fourth Amendment was designed to prevent."(6, p. 1394) The Supreme Court's strong ratification of the HHS drug testing procedure may have important implications to the small business owner. The reliability of drug testing had, in the past, been a target of complaints which were often warranted. Indeed, cases of mishandling, false positives and other procedural problems, cast serious doubts on the efficacy of urinalysis.(2, pp. 317-321) Such doubts had a chilling effect on many employers desiring to implement drug testing but fearful of lawsuits by disgruntled employees. Those employers who use these guidelines now may point to the apparent reliability of this approach if legally attacked, in particular, if the employer is in the public sector or is deemed to be an "agent of the government" in the private sector. Is Proof of On-the-Job Impairment a Prereguisite to a Valid Drug Testing Program? A third, ongoing issue of drug testing has been whether it is necessary to prove the connection or "nexus" between urinalysis and on-the-job impairment. Urinalysis cannot, for instance, prove that a person who tests positively for the THC metabolite found in marijuana, is presently intoxicated or had ingested it days or even weeks ago. Hence, the tests may punish and stigmatize a person for off-the-job usage that have may no effect on how the worker performs on-the-job. The Von Raab case, by implication, indicated that this dilemma is no longer an impediment to drug testing. The Court, although not grappling directly with the issue, stated that the Customs Service has a "compelling interest in preventing the risk of life of the citizenry posed by the potential use of deadly force by persons suffering from impaired perception and judgment." Similarly, the Court felt that having physically fit employees with "unimpeachable integrity and judgment" were compelling interests the Customs Service should ensure as well.(6, p. 1386) In the foregoing pronouncement, however, the Court made no mention of the "nexus" problem and as such did not

distinguish between on-the-job and off-the-job drug use. Indeed, the Court's statement that there are compelling interests in having a "physically fit" employee with "unimpeachable integrity and judgment" infers that drug abstinence is an ongoing duty imposed on certain workers and thus not protected from the intrusion of drug testing. In the Skinner case, moreover, the Court stated that drug use, regardless of when it may have occurred, is important information and therefore relevant. As an illustration, the Court stated that "[E]ven if urine test results disclosed nothing more specific than the recent use of controlled substances by a covered employee, this information would provide the basis for further investigative work designed to determine whether the employee used drugs at the relevant times."(9, p. 1421) MEASUREMENT: A STANDARD FOR DETERMINING THE REASONABLENESS OF DRUG TESTING COMPELLING GOVERNMENT INTERESTS VS. THE EMPLOYEE'S PRIVACY EXPECTATIONS Arguably the most important implication of the two cases was the emergence of a new standard for determining the reasonableness of drug testing. As mentioned, the Fourth Amendment's prohibition of unreasonable searches and seizures by the government or its agents of their employees in the public sector has often been the most critical legal hurdle to overcome in a drug testing program. The new standard, discussed below, may now legalize many types of drug testing programs which formerly would have been legally risky. In general, a search is reasonable and therefore legal if a warrant is issued upon proving the existence of probable cause. However, as explained in the Von Raab case, "neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance."(6, p. 1390) Consequently, the Court stated that "where a Fourth Amendment instrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context."(6, p. 1390) Thus, to apply this test on a case-by-case basis, it is necessary to articulate the special governmental needs or compelling interests and then weigh these needs against the employee's privacy expectations. If the governmental interests outweigh the privacy expectations then a search, even without a warrant or individualized suspicion, would be deemed reasonable and legal. MEASUREMENT: IMPLICATIONS OF SKINNER AND VON RAAB TO THE SMALL BUSINESS OWNER In light of the discussion of these cases and their implications, what might all this mean to the small business owner? One very important inquiry is what businesses like the railroads under the FRA, will be considered agents of the government. Private businesses, such as airlines, trucking and others that are more pervasively regulated businesses, fit into the category of agents of the government under the Skinner analysis, especially in light of regulations issued by the Department of Transportation. Moreover, whatever private sector businesses which are deemed to be agents, the relevant federal laws will preempt conflicting state laws as well as labor agreements and arbitrations. For those which are less reguated, it remains to be hammered out in the courts their status as agents with important implications either way. If a business is not an agent of the government, a worker would have to rely on traditional common law actions in tort, such as invasion of privacy(1) or defamation or possibly state statutory(12) or constitutional protections(2) to fight an employer's drug testing policy he/she feels is illegal. Secondly, if a business is considered to be an agent of the government, it no longer has to ponder what were once considered impediments to drug testing. Thus, proving that there is a drug problem as a prerequisite to a testing program, wrestling with the reliability of the testing procedure, and determining if the positive results have a direct impairment effect or "nexus" on the worksite, are no longer important issues. Thirdly, to legally justify any type of drug testing approach (i.e. tests which are random, mandatory, announced or after an accident etc.) it will be necessary to prove that there are compelling governmental interests and then to demonstrate why they outweigh the employee's privacy expectations. These interests include integrity, public safety and protecting sensitive information. Whether more interests will appear in the future, of course, remains to be seen. In any case, these interests must be weighed against an employee's expectations of privacy. Furthermore, those employees with jobs which incorporate any of these interests, will be deemed to have considerably diminished privacy expectations. However, the connection or "nexus"

between the employee's job and the interest(s) must be direct and therefore not so broad as to include other employees with only an indirect or incidental connection to the interest. The bottom line, assuming a private business is an agent of the government, is that business can potentially justify even a random, mandatory drug testing now. The business would first have to articulate characteristics in its workplace such as public safety to warrant such a procedure since it is unlikely that integrity or protection of top secret information in the context of the Von Raab case would be present in many private businesses. Again, businesses such as the airlines and trucking would fit neatly into this category. Pilots and truckers would also have diminished privacy expectations due to the direct implications their drug use could have on public safety. CONCLUSION The testing of employees for drug use is becoming pervasive in both the public and private sectors. Two recent Supreme Court decisions, Skinner and Von Raab may help clarify the parameters of drug testing, particularly in the public sector, but possibly in areas of the private sector as well. In either case, as more lower court decisions continue to illuminate employers on what they can and cannot do, employers can concentrate their efforts and resources on eliminating the well documented effects of drug use in the workplace and less on concerns on whether they are treading on the legal rights of their employees. Employees, on the other hand, must grapple with the realization that the legislative, executive and judicial branches at all levels of government are aggressively pursuing a public policy aimed at purging drugs from the workplace. The eventual outcome may be a sacrificing of privacy rights, especially for workers in certain industries. REFERENCES (1) Aalberts, Robert J., "Drug Testing Walking a Legal Tightrope," Business Magazine, Jan., Feb., March, 1988, pp. 52-56. (2) Bible, Jon, "Screening Workers for Drugs: The constituional Implications of Urine Testing in Public Employment," American Business Law Journal, Vol. 24, 1986, pp. 321-338. (3) Camara v. Municipal Court, 387 U.S. 523 (1967). (4) Castro, Janice, "Battling the Enemy Within," Time, March 17, 1986, pp. 53-56. (5) Drug Testing Regulations Published November 21, 1988, by the Department of Transportation, Special Supplement, Bureau of National Affairs, Inc., Nov. 23, 1988, pp. S-3 to S- 169. (6) National Treasury Employees Union v. Von Raab, 109 S. Ct. 1384 (1989). (7) Sand, Robert H., "Drugs in the Workplace: The Supreme Court, Congress, and the Federal Agencies Declare War," Employee Relations Law Journal, Summer 1989, pp. 125-130. (8) Schwartz, John, "Using Spies to Win a War," Nov. 6, 1989, pp. 57-62. (9) Skinner v. Railway Labor Executives Association, 109 S. Ct. 1402 (1989). (10) Stanley, Richard A., "Drug Testing in the Workplace Creates New Judicial Doctrine," National Law Journal, Oct. 16, 1989', pp. 15-17. (11) United States v. Martinez-Fuerte, 428 U.S. 543 (1967). (12) UTAH CODE ANN. 34-38-1 (1988). (13) 53 Federal Register 11985-11986 (1988).