Re: drug and alcohol testing of city employees
Dear City Attorney,
You asked me to provide a written opinion requested by the mayor, who has asked if all city employees may be tested for drugs and alcohol. As we discussed, our courts have ruled that only public employees in safety sensitive positions may be legally subjected to such tests.
The United States Supreme Court ruled that drug and alcohol tests of public employees constitute a warrantless search prohibited by the Fourth Amendment of the U.S. Constitution, but some such searches are reasonable based on “special needs, beyond the normal need for law enforcement.” Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 619, 109 S. Ct. 1402, 1414, 103 L. Ed. 2d 639 (1989). The Court explains this ruling in a later opinion:
Our precedents establish that the proffered special need for drug testing must be substantial—important enough to override the individual's acknowledged privacy interest, sufficiently vital to suppress the Fourth Amendment's normal requirement of individualized suspicion.
Chandler v. Miller, 520 U.S. 305, 313-14, 117 S. Ct. 1295, 1300-01, 137 L. Ed. 2d 513 (1997)
Searches under the Fourth Amendment usually require a warrant, but such requirement may be waived where there is a genuine potential threat to public safety:
We reiterate, too, that where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as “reasonable”—for example, searches now routine at airports and at entrances to courts and other official buildings. See Von Raab, 489 U.S., at 674–676, and n. 3, 109 S.Ct., at 1395–1396, and n. 3. But where, as in this case, public safety is not genuinely in jeopardy, the Fourth Amendment precludes the suspicionless search, no matter how conveniently arranged.
Chandler v. Miller, 520 U.S. 305, 323, 117 S. Ct. 1295, 1305, 137 L. Ed. 2d 513 (1997)
In addition to the right to not be subjected to warrantless searches contained in the Fourth Amendment to the U.S. Constitution, Tennessee citizens have specific rights under our state Constitution:
Similarly, Article I Section 7 of the Tennessee Constitution provides, in pertinent part, “that the people shall be secure in their persons ... from unreasonable searches and seizures [.]” Tenn. Const. art. I, § 7. The intent and purpose of the prohibition against unreasonable searches is the same in both the federal and state constitutions. State v. Simpson, 968 S.W.2d 776, 779 (Tenn.1998).
Smith Cnty. Educ. Ass'n v. Smith Cnty. Bd. of Educ., 781 F. Supp. 2d 604, 614 (M.D. Tenn. 2011)
Federal Courts in Tennessee have consistently applied the precedent set by the U.S. Supreme Court, ruling:
A compelled urine test from a governmental employee is a search for purposes of the “unreasonable searches and seizures” clause of the Fourth Amendment. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). Indeed, “drug or alcohol testing of a governmental employee implicates the Fourth Amendment even though the testing may not be related to enforcement of the criminal law.” Pennington v. Metro. Govt. of Nashville, 511 F.3d 647, 651 (6th Cir.2008). Because such testing intrudes on an individual's expectation of privacy, drug or alcohol testing of governmental employees generally must be based upon individualized suspicion to be considered reasonable under the Fourth Amendment. Chandler v. Miller, 520 U.S. 305, 313, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997).
Smith Cnty. Educ. Ass'n v. Smith Cnty. Bd. of Educ., 781 F. Supp. 2d 604, 614-15 (M.D. Tenn. 2011)
The exception to this rule that government employees cannot be tested without a warrant is explained further as follows:
A notable exception to the general rule and its application by the Sixth Circuit is central to this case. The Supreme Court has held that suspicionless drug testing can be constitutional when it “serves special government needs.” One such special need may exist when the employee holds a “safety sensitive” position, meaning that the employee's duties are “so fraught with ... risks of injury to others that even a momentary lapse of attention can have disastrous consequences.” Skinner, 489 U.S. at 628, 109 S.Ct. 1402. In such circumstances, courts must “balance the individual's privacy expectations against the government's interest to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.” Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665–66, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989).
Smith Cnty. Educ. Ass'n v. Smith Cnty. Bd. of Educ., 781 F. Supp. 2d 604, 614-15 (M.D. Tenn. 2011)
The Sixth Circuit Court of Appeals, which has jurisdiction over Tennessee, ruled that drug testing of public school teachers is constitutional, after applying this analysis:
With regard to the government's interest in testing, the Supreme Court has traditionally focused its analysis on two central factors: (1) whether the group of people targeted for testing exhibits a pronounced drug problem; and, if not, whether the group occupies a unique position such that the existence of a pronounced drug problem is unnecessary to justify suspicionless testing; and (2) the magnitude of the harm that could result from the use of illicit drugs on the job.
Knox Cnty. Educ. Ass'n v. Knox Cnty. Bd. of Educ., 158 F.3d 361, 373 (6th Cir. 1998)
Although there was no evidence of a drug or alcohol abuse problem among the teachers tested by the board of education in the case, the potential harm to children in the event of such abuse provided the grounds on which such testing could be conducted legally:
We can imagine few governmental interests more important to a community than that of insuring the safety and security of its children while they are entrusted to the care of teachers and administrators. Concomitant with this governmental interest is the community’s interest in reasonably insuring that those who are entrusted with the care of our children will not be inclined to influence children—either directly or by example—in the direction of illegal and dangerous activities which undermine values which parents attempt to instill in children in the home. Indeed, teachers occupy a singularly critical and unique role in our society in that for a great portion of a child’s life, they occupy a position of immense direct influence on a child, with the potential for both good and bad.
Knox Cnty. Educ. Ass’n v. Knox Cnty. Bd. Of Educ., 158 F.3d 361, 374-75 (6th Cir. 1998)
The Tennessee Attorney General summarizes and explains the application of these court rulings in our state as follows:
Based upon this Office's prior opinion of December 18, 1986, and the subsequent federal court decisions cited in this opinion, this Office is of the opinion that: (1) drug testing of public employees based upon reasonable suspicion is not an unreasonable search under the Fourth Amendment; (2) random drug testing, i.e. drug testing on a neutral selection basis, does constitute an unreasonable search unless the position of the employee involves public safety; (3) drug testing by government employers of applicants or government employees through routine medical examinations is likewise an unreasonable search unless the position involved is one of public safety.
Tenn. Op. Att'y Gen. No. 89-66 (Apr. 28, 1989)
The United States Supreme Court has recognized a limited exception if the drug testing serves a “special governmental need, beyond the normal need for law enforcement.” Von Raab, 489 U.S. at 665. To determine whether a search meets a “special” governmental need it is “necessary to balance the individual's privacy expectations against the government's interest to determine if it is impractical to require a warrant or some level of individualized suspicion in the particular context.” Id. (citing Skinner 489 U.S. at 616-18). For example, a special need may exist when a government employee holds a “safety sensitive” position, meaning that the employees' duties are so “fraught with ... risks of injury to others that even a momentary lapse of attention can have disastrous consequences.” Skinner, 489 U.S. at 628.
Since the enunciation of this test by the United States Supreme Court, this Office has been asked on several occasions to apply the test to various specific factual situations. See Op. Tenn. Att'y Gen. 12-45 (April 3, 2012); Op. Tenn. Att'y Gen. 12-41 (March 20, 2012); Op. Tenn. Att'y Gen. 07-84 (June 1, 2007) (all addressing the limitations on drug testing as a condition of receiving public assistance). See also Op. Tenn. Att'y Gen. 08-106 (May 7, 2008) (opining a bill authorizing random drug testing of students participating in voluntary extracurricular activities in the absence of individualized reasonable suspicion under certain defined circumstances was constitutionally defensible); Op. Tenn. Att'y Gen. 07-96 (July 2, 2007) (noting that Tennessee statute did not allow the random drug testing of students unless there was a reasonable indication that the student may have used or may be under the influence of drugs); Op. Tenn. Att'y Gen. 94-030 (March 11, 1994) (opining the Tennessee Public Service Commission could require motor carrier inspectors, railroad safety inspectors, and gas pipe line inspectors to submit to suspicionless random drug tests.); Op. Tenn. Att'y Gen. 90-70 (July 3, 1990) (stating that drug and alcohol testing of job applicants for government employment would violate the Fourth Amendment prohibition against unreasonable searches and seizures unless the job involved public safety); Op. Tenn. Att'y Gen. 89-66 (April 28, 1989) (opining that the blanket authorization for random drug testing of government employees would violate the search and seizure provisions of the Fourth Amendment, and that the blanket drug testing of job applicants for government employment and the routine drug testing through annual physical examinations of government employees would probably violate the Fourth Amendment).
Tenn. Op. Att'y Gen. No. 12-47 (Apr. 17, 2012)
In the last paragraph quoted above, you will see the various opinions of the Attorney General in which the Supreme Court’s rulings and analysis have been applied. Although these opinions do not have the weight and authority of reported court opinions, they provide excellent guidance to public employers on this issue.
In order to test government employees for drugs and alcohol, the government must show a special need exists which warrants such invasion of that employee’s privacy. Special needs to perform testing do exist when that employee holds a safety sensitive position, such as a police officer. It appears that no such special need or interest exists with regard to typical city employees, who are not involved in law enforcement or holding other positions that may pose risk to the public if the employee is under the influence of drugs or alcohol. Certainly, a school bus driver or teacher would qualify for testing, but not a city clerk or maintenance worker.
Based on rulings by the U.S. Supreme Court, the Sixth Circuit Court of Appeals and lower courts, it is clear that a drug and alcohol testing policy requiring the testing of all city employees is unconstitutional. Only those employees holding safety sensitive positions may be subjected to random testing, or be required to undergo testing as part of the application process.
I hope this information is helpful.
Melissa A. Ashburn
MTAS Legal Consultant