Privacy
PRIVACY IN DRUG TESTING
Due to the nature of a workplace, an employer may think it
necessary to test employees on a random basis and not wait for
individual suspicion to develop.  With public employees, or
when random testing has been required by the government, random
testing has been subjected to careful scrutiny by the courts. [1]
Since drug testing by the government is a search, and a search
usually requires individual suspicion, a random drug test is in
essence a random search.  Such a search needs a justification
which overrides an individual's expectation of privacy.  Private
employers who are not subject to a governmental drug testing have
greater latitude in conducting random testing.  However, under some
state laws, even such private employer random tests may be
considered violations of privacy and the courts require that they be
properly performed. [2]
The purposes of random testing are early detection and deterrence.
Employees who know they will be tested at random are expected to
be more likely to avoid behavior which will compromise their jobs.
Random drug testing is very effective in detecting drug abusers.
Nevertheless, this selection method engenders more employee
resistance or opposition than the other test methods.  Employers
need to exercise caution in implementing a random testing program
because it is more likely to receive legal scrutiny.  However,
when properly performed, random testing has been upheld by
the courts, including the U.S. Supreme Court. [3]
The main legal attack on random testing concerns alleged violations
of privacy because random testing is a search without first having
evidence that there is a need for the search.  Random testing may
need to be justified by some interest that overrides the employee's
privacy.  Under the Federal Department of Transportation regulations
that need is public safety.  In private employment, where employers
have a greater right to test, it is still best that the random
search be justified.  The courts take the proper administration of
tests into account in deciding if such a search is justified. [4] A
professional third party TPA can ensure that the tests are conducted
in a professional and consistent manner which upholds employee
dignity and privacy and avoids litigation.
A TPA can ensure that no agent or employee of the employer is
involved in the drug test.  The persons taking the test do not have
to be embarrassed in front of fellow employees.  The visual or
aural observation of an act as private as urination is objectionable
to most people, especially if performed in the presence of
co-workers. [5]
Highly personal medical information can be disclosed by urine
tests resulting in an invasion of a physician-patient
relationship.
Use of a TPA can reduce these risks because they are trained to
conduct specimen collection in a dignified and professional manner
and they are not fellow employees.  Whether an employer uses on-site
testing or sends specimens out to a laboratory, a TPA makes sure
that all goes well.
The TPA can provide a consistent professional approach.  The employer
does not have to worry that employee turnover will result in
having untrained employees administering the drug testing program.
The TPA can provide trained staff to conduct the test and provide
recordkeeping and other administrative details.
The professional objective administration of a drug testing program
will protect employee privacy and will provide the employee the
comfort of knowing that his co-workers and supervisors will be kept
at arms length.  This reduces the emotional impact of the testing
and lessens the chance of an invasion of privacy.
By having specimen collection conducted properly, an employer will
be viewed more favorably by a court if an employee or job applicant
raises any legal issues concerning privacy.
PRIVACY REFERENCES
1.  AFGE v. Thornburgh, 720 F Supp 154 (ND Cal 1989) enjoining random
testing under Federal Bureau of Prisons Drug Free Workplace Plan;
Guiney v. Roche, 873 F 2d 1557 (1st Cir 1989) cert denied, 110 S Ct
404 (1989) upholding random testing of police officers; Capua
v. City of Plainfield, 643 F Supp 1507 (DNJ 1986) improper random
testing of firefighters; F.O.P. v. Newark, 524 A2d 430 (N J Super
App Div 1987) cannot drug test police on a random basis; Brown v
City of Detroit, 715 F Supp 832 (ED Mich 1989) upholding random
testing of public officers; Harmon v. Thornburgh, 878 F 2d 484 (DC
Cir 1989) upholding random testing of certain Department of Justice
employees in sensitive positions; Spence v. Farrier, 807 F2d 750
(8th Cir 1986); see also Federal Highway Administration, Controlled
Substances Testing; Final Rule, 53 Fed Reg 47153-4 (November 21,
1988).
2.  Hennessey v. Coastal Eagle Point Oil Co., 6 IER Cases
113 (N.J. Super. 1989) (drug test in private employment without
reasonable suspicion violates public policy in New Jersey.  In
addition, random testing was conducted in unreasonable manner since
employees not informed of testing policy, had no opportunity for
rehabilitation and there were no scientific guidelines adopted.
Specimen donation unobserved.  rev'd 6 IER Cases 513
(N.J. App. 1991).
3.  Shoemaker v. Handel, 795 F 2d 1136 (3rd
Ciur 1986) cert denied 107 S Ct 577 (1986); NTEU v. Von Raab, 109 S
Ct 1384 (1989); Skinner v. RLEA, 109 S Ct 1402 (1989);
P.B.A. v. Twp. of Washington, 890 F 2d Legal liability memorandum -
page 5 133 (3rd Cir 1988), cert denied 109 S Ct 1637 (1989);
McDonnell v. Hunter, 809 F 2d 1302 (uth Cir 1987) random testing of
prison guards upheld; Rushton v. Neb. Pub. Power Dist, 844 F 2d 562
(8th Cir 1988) random testing of nuclear workers; Schaill
v. Tippecanoe County Sch Corp, 864 F 2d 1309 (7th Cir 1988) reh'g
denied (February 14, 1989) random testing of school athletes upheld
for safety reasons.
4.  Shoemaker v. Handel, 795 F 2d 1136
(3rd Cir 1986) cert denied 107 S Ct 577 (1986); NTEU v. Von Raab,
109 S Ct 1384 (1989); Skinner v. RLEA, 109 S Ct 1402 (1989);
Hennessey v. Coastal Eagle Point Oil Co., 6 IER Cases 113
(N.J. Super. 1989) rev'd 6 IER Cases 513 (N.J. App. 1991).
5.  NTEU v. Von Raab, 816 F2d 170, 175 (5th Cir 1987)
6.  NTEU v. Von Raab, 816 F2d 170, 175-176 (5th Cir 1987);
Anable v. Ford, 653 F Supp 22 (WD Ark 1985); AFGE v. Weinberger,
651 F Supp 726, 732 (SD Ga. 1986); Capua v. City of Plainfield,
643 F Supp 1507, 1514 (D NJ)
--- 
---------------