COMMENTS

THOMAS W. KELTY, Chief Counsel, Illinois Municipal League

DRUGS AND THE PUBLIC WORKPLACE

As our society in the United States has changed, so have the problems faced by those persons governing it. In each decade of our history, new problems have presented themselves and those problems have been addressed and generally resolved. From 1920 to 1933 the consumption of alcohol was prohibited in the United States because of society's belief that alcohol was eroding the moral fiber of the country. The 1970's and 1980's have brought a new problem that is similar in nature, but that has not been addressed with the vigor with which alcohol was dealt with earlier in this century. The problem is drug and alcohol abuse.

Volumes have been written and published about the problems of substance abuse in this country. Debates rage on about the potential harmful effects of illegal drugs. Sport figures, entertainment personalities, and public figures receive coverage by the media for their use and abuse of substances ranging from alcohol to heroin. But for all of the coverage of high profile persons and their problems of substance abuse, the problem has a practical side that is being faced by officials at all levels of government, including those officials of Illinois municipalities.

Officials of municipalities have the problem of controlling substance abuse within the ranks of municipal employees. Some municipalities have started counseling programs, drug education and taken other measures to minimize the impact of any abuse problems after they are discovered. The larger problem that looms for those same municipalities is how to prevent the potentially severe consequences of the problem by early detection. Voluntary disclosure of these problems by the affected employees is rare. The only tool available to municipal officials is drug testing. However, the concept of drug testing of any type evokes high emotion from all sectors of public employees.

When considering the possibility of a drug testing program, the municipal official is confronted with confusion. The law in the area of drug testing is not well settled. This lack of clear judicial definition of the permissible limits for testing is compounded by the unrest among the employees. In the midst of this issue, three areas should be addressed by municipal officials and their legal counsel in considering a drug testing program.

The predominant area of concern is the constitutional considerations of employee rights granted by the United States and Illinois Constitution. Two fundamental rights come into question whenever a testing program is proposed: due process and search and seizure. The Fourth Amendment of the United States Constitution and Section 6 of Article I of the Illinois Constitution both prohibit unreasonable searches and seizures. The United States Constitution provides that,

"The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue without probable cause, supported by an oath or affirmation, and particularly describing the place to be searched, and the persons and things to be seized."

Testing programs that have been challenged have focused on this principle. Additionally, due process arguments are raised in challenges to testing programs as a result of the right against unreasonable searches claiming that the affected employees are being deprived of a fundamental right without due process of law.

Generally, the fourth amendment has been interpreted to require courts to apply a balancing test in order to determine the reasonableness of a search. In the test, the privacy expectations of the individual are to be balanced against the government's legitimate interests. The first part of the test requires that the intrusion on the individual be viewed in the context of that person's legitimate expectation of privacy. Each person's privacy interest is affected by the situation in which it is asserted; therefore, what is considered reasonable varies in each situation. The difficulty in determining what

January 1987 / Illinois Municipal Review / Page 19

is reasonable under this test has been recognized by the United States Supreme Court. In the case of Bell v. Wolfish, the Court stated,

"The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case, it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted."

Random drug testing programs generally fail in one element of the four considerations set out by the Supreme Court in Bell; the justification for initiating the test. Courts have held that public employers must have a justification or suspicion for initiating the testing. Therefore, without indications that substance abuse is present, there is no justification or "probable cause" for the search. In the case of McDonell v. Hunter, an Iowa Department of Corrections policy which authorized blood testing, urinalysis and other searches whenever a supervisor wished was challenged. The District Court for the Southern District of Iowa held that once a guard is hired, employees could only be tested when supervisors could establish from objective facts that an employee was then under the influence of drugs or alcohol. Federal courts have generally centered on the lack of "probable cause" as being fatal to random drug testing programs. However, state courts around the country have upheld drug testing of certain categories of municipal employees such as police narcotics officers, electrical employees and transit drivers either based upon a regular schedule or when presented with probable cause.

The second area that local officials should consider in the design and implementation of a testing program are possible limitations that may be imposed by state common law. In a recent Local Government Law newsletter of the Illinois State Bar Association, R. Theodore Clark wrote,

Public employer drug testing programs may also be vulnerable to legal challenges based upon state common law theories. For example, an employer who does not provide adequate notice to employees before requiring them to undergo an alcohol or drug test, or who conducts an unreasonable search, could be liable to the employee for invasion of privacy or intentional infliction of emotional distress. Releasing the results of drug tests could lead to defamation actions against the employer if the information released is inaccurate, or if it is released to persons without a "need to know," absent the consent of the employee.

The potential limitations are less clearly defined than those under the fourth amendment. However, a careful consideration of the due process and reasonable cause issues under the Fourth Amendment can assist in eliminating potential actions against a municipality based upon state common law theories.

Finally, the impact of a testing program with respect to employees who are members of a labor union further complicate the initiation of a testing program. Employees' unions have been successful in actions in both state and federal courts in challenging the initiation of testing programs. At least one case, heard in the district court for the District of Columbia has blocked implementation of a drug testing policy because the rules "were implemented without prior consulation or negotiation with the exclusive bargaining agent for the employees." In addition to court actions to block implementation of a testing program, employee unions have used State Labor Relations Boards as a forum for instituting unfair labor practice actions in an attempt to block initiation of testing programs. While the participation of an employee organization in the development of a testing policy may avoid the eventual challenging of the policy, no guidelines can be developed to ensure that an action by the organization can be avoided.

The problem of substance abuse is a complex issue that defies simple solutions. Traditional responses to other employee discipline problems will seldom correct or alleviate the problem. Municipal officials considering the implementation of a testing policy must carefully consider all aspects of the issue in order to adequately protect the rights of the individual to public employment and the rights of the taxpaying public to services by the employees.

No case considering a drug testing policy of a public employer has yet been heard by the United States Supreme Court. As is the case with many other complicated problems, eventually the court will almost certainly have to provide governmental officials across the country with guidelines to follow in the form of a decision. Until that time, municipal officials must proceed carefully and with extreme caution in the development and implementation of a substance abuse testing program to protect both the employees and the taxpaying public. •

Page 20 / Illinois Municipal Review / January 1987