Could Maryland require state employees and job applicants to take drug tests?

MD AG Opinion 71-58: Could Maryland drug-test state workers?

Plain-English summary

In 1986, Maryland's Secretary of Personnel asked whether the State could require urine drug tests for current employees and job applicants, including correctional officers, and then fire or refuse to hire people whose results showed drug use.

The Attorney General concluded that collecting and testing urine was a Fourth Amendment search or seizure. For most state employees, indiscriminate testing was too great an intrusion compared with the State's general interest in detecting off-duty drug use. The opinion said testing those employees required particularized probable cause.

The opinion applied a different balance to employees whose work directly affected public safety. Police and correctional officers had somewhat reduced privacy expectations, and impaired performance could cause immediate harm. Even so, the opinion rejected testing based only on the nature of the job. It said a public employer needed a reasonable, objective basis to suspect illicit drug use, a lower threshold than probable cause but still tied to the particular employee.

Applicants could be tested only when drug use was relevant to the duties of the position or likely to create danger to people or property. The opinion treated correctional-officer and similar public-safety positions as jobs for which testing all applicants was permissible.

Any permitted testing program also needed safeguards. The opinion called for confirmation of positive results, documented control of specimens, confidentiality, and notice plus an opportunity for a hearing before terminating a classified employee. It also concluded that the Rehabilitation Act of 1973 limited employment action based on drug abuse when the person could still perform the job and presented no direct safety threat.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion said for affected groups in 1986

Most state employees

The opinion said mandatory testing required particularized probable cause. A general desire to find drug users or deter off-duty misconduct did not justify testing employees whose job performance and safety responsibilities did not create a stronger governmental need.

Police, correctional officers, and other public-safety employees

The opinion allowed testing when specific, objective facts created reasonable suspicion that the particular employee used illicit drugs. It rejected random testing based solely on public-safety employment.

Applicants for state jobs

The opinion tied testing to the position. An applicant could be tested when drug abuse would likely prevent performance of the duties or create danger to people or property. Applicants for correctional-officer and similar public-safety positions could be tested as a group because the opinion found the job connection apparent.

Personnel officials and agency managers

The opinion said the Secretary of Personnel had statutory authority to establish a testing program only when drug abuse was linked to the requirements of particular job categories. A program also had to include reliable confirmation, specimen-integrity procedures, confidentiality, and applicable pretermination process.

Common questions

Did the opinion treat a urine drug test as a Fourth Amendment search?
Yes. It said the collection and analysis of a urine specimen implicated the Fourth Amendment, much like compelled blood or breath testing.

Could Maryland randomly test every state employee?
The opinion said no. For most employees, indiscriminate testing violated the Fourth Amendment and testing required particularized probable cause.

Was the rule different for correctional officers?
Yes, but the opinion still required individualized grounds. It concluded that correctional officers and other public-safety employees could be tested on reasonable suspicion based on specific, objective facts.

Could Maryland test all applicants for state jobs?
Not under the opinion's analysis. Testing had to relate to the duties or safety risks of the position. The opinion allowed across-the-board applicant testing for correctional-officer and similar public-safety jobs.

Could an employee be treated as consenting because refusal might cost the job?
No. The opinion rejected the idea that staying in a job after testing became a condition of employment amounted to voluntary Fourth Amendment consent.

What safeguards did the opinion require after a positive result?
It called for reliable confirmation of an initial result, procedures preventing specimen tampering or switching, protection against unauthorized disclosure, and notice plus a hearing opportunity before a classified employee's termination.

Background and legal framework

The opinion began with the Secretary of Personnel's authority under Article 64A, §§11 and 33. It concluded that the Secretary could prescribe causes for removal and adopt necessary Merit System rules, but only when the testing program rested on a finding connecting drug abuse to job performance.

The Fourth Amendment analysis balanced the employee's privacy interest against the government's need for the search. The opinion relied on Schmerber for compelled bodily samples, Bell for the general reasonableness balance, and New Jersey v. T.L.O. for the role of legitimate privacy expectations. It found that observed performance problems could ordinarily be handled directly, while urine testing disclosed private information about past conduct and bodily functions.

For public-safety work, the opinion relied on cases involving police, correctional, transportation, and other safety-sensitive employees. It adopted reasonable suspicion based on objective facts and rational inferences, while rejecting unparticularized rumors or testing based only on job title.

The opinion separately addressed consent, applicant privacy, equal protection, procedural due process, test accuracy, and the Rehabilitation Act of 1973. It concluded that economic pressure made employment-conditioned consent involuntary, that classified employees had a property interest requiring pretermination process, and that positive test results needed reliable confirmation before employment action.

Citations and references

Constitutional and statutory provisions:

• U.S. Const. Amend. IV, unreasonable searches and seizures
• U.S. Const. Amend. XIV, §1, equal protection and due process
• Article 64A, §§11 and 33, Secretary of Personnel rulemaking and removal authority discussed in the opinion
• 29 U.S.C. §706(7)(B), Rehabilitation Act definition applied to alcohol and drug abuse
• SG §10-617(b), confidentiality of medical data

Cases:

• Schmerber v. California, 384 U.S. 757, 767 (1966), compelled blood testing as a search or seizure
• Bell v. Wolfish, 441 U.S. 520, 559 (1979), balancing need against invasion of personal rights
• New Jersey v. T.L.O., 469 U.S. 325, 337 (1985), legitimate expectations of privacy
• Turner v. Fraternal Order of Police, 500 A.2d 1005, 1007-1008 (D.C. 1985), privacy and safety interests affecting police officers
• Schneckloth v. Bustamante, 412 U.S. 218 (1973), voluntary consent to a search
• New York City Transit Auth. v. Beazer, 440 U.S. 568 (1979), equal-protection review of an employment drug policy

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1986/Volume71_1986.pdf

Original opinion text

58 [71 Op. Att’y

Constitutional Law—Personnel—Drug Testing—Fourth
Amendment—Indiscriminate Drug Testing of State Em-
ployees is Unconstitutional—Testing of Most Employ-
ees Requires “Probable Cause”—Testing of Public Safe-
ty Employees Requires “Reasonable Suspicion.”

                                                            October 22, 1986

The Honorable John F. X. O’Brien
Secretary of Personnel

You have requested our opinion on the legality of several possi-
ble approaches to testing State employees, or applicants for State
jobs, in order to detect drug abuse.1 Specifically, you ask about the
following alternatives:

1. mandatory testing of current State employees—that is, com-
   pelling employees to submit a urine specimen for laboratory analy-
   sis—leading to termination from State service of employees who
   are found to be abusing drugs;2
2. mandatory testing of those who presently serve as correction-
   al officers, leading to termination from State service of officers
   who are found to be abusing drugs;
3. mandatory testing of all applicants for State jobs, leading to
   a refusal to hire applicants who are found to be abusing drugs; and
4. mandatory testing of applicants for positions as correctional
   officers, leading to a refusal to hire applicants who are found to
   be abusing drugs.
   You also inquired about:

■The term “drug abuse” refers to the unauthorized use of opiates, cocaine, marijua-
na, or any of the other controlled dangerous substances listed in Article 27, §279
of the Maryland Code. Your questions concern drug testing to further the State’s
interest as employer, as distinct from its interest as law enforcer. See Part II below.
State employees are of course subject to prosecution for violating criminal prohibi-
tions related to drug abuse; however, the constitutional and other considerations
directly affecting State law enforcement efforts are not the subject of this opinion.
2
Your inquiry, arising as it does merely from possible alternatives rather than a
concrete proposal, does not indicate whether such a program would mandate testing
for each employee or would instead require all employees to submit to testing, if
selected for it on a random basis. Either type of program is “mandatory,” in the
sense that we use the term, and our conclusion is the same in either case.

Gen. 58] 59

5. the legal limitations, if any, that must govern the actual con-
   duct of a testing program.
   For the reasons stated below, we conclude as follows:
6. Mandatory testing of most categories of State employees
   would violate the Fourth Amendment prohibition against “unrea-
   sonable searches and seizures.” The testing of such an employee
   is permissible only if based upon particularized probable cause, the
   traditional prerequisite to a search or seizure. In addition, termina-
   tion of an employee solely because the testing indicates current
   drug abuse would violate the federal Rehabilitation Act of 1973.
7. Mandatory testing of employees whose work is directly related
   to public safety is also unconstitutional unless certain Fourth
   Amendment safeguards are followed. Drug testing of these em-
   ployees for no reason other than the nature of their jobs is not per-
   missible. However, there is no constitutional or other legal bar to
   mandatory testing of these employees where circumstances give
   the employing agency a reasonable, objective basis to suspect illicit
   drug use. Therefore, under this somewhat more relaxed standard
   than probable cause, testing of correctional officers and other pub-
   lic safety employees, and termination of those who are found to
   be drug abusers, would be legally permissible.
8. Each applicant for a position may be tested only if, as to that
   particular position, drug abuse would likely make the applicant un-
   able to perform the duties of the job or would likely present a dan-
   ger to the public or to property. Likewise, the State may refuse
   to hire, for such a position, an applicant who is shown by testing
   to be a drug abuser.3
9. Testing of all applicants for positions as correctional officers,
   and like public safety jobs, and refusing to hire those who test posi-
   tive for drug abuse would be legally permissible.
10. Any testing program must include reasonable steps to confirm
    that a positive result is accurate and to assure that specimens are
    not tampered with or switched. Test results must be secured

3
You asked whether the test results for an applicant should be obtained prior to the
inclusion of the applicant on an eligible list as a certified candidate for employment.
If passing the drug test were properly established as an employment qualification,
the timing of the test is discretionary. Whether test results for an applicant should
be obtained prior to the inclusion of the applicant on a list of eligibles or prior to
the successful applicant’s starting work is a question of personnel administration.

60 [71 Op. Att’y

against unauthorized disclosure. In addition, the termination of a
classified employee for drug abuse must be preceded by notice and
an opportunity for a hearing.4

                                       I
                                Introduction

Your questions reflect a burgeoning interest in workplace test-
ing as a means of combatting drug abuse. The social costs of drug
abuse and the difficulty of blocking channels of drug supply have
led to proposals for workplace testing as a way of inhibiting the
demand for drugs. So, for example, the President has ordered a
widespread program of drug testing in federal agencies.5
The prospect of losing one’s job, or of not getting a job in the
first place, as a result of drug abuse might well be a formidable
deterrent. Yet law and sound policy alike insist that this goal be
pursued without sacrificing basic values.
The fundamental legal question is whether drug testing in the
workplace is compatible with the protection of personal privacy em-
bodied in the Fourth Amendment’s prohibition of “unreasonable
searches and seizures.”6 Given the public and political reaction to

4
If a mandatory drug test is permissible under the Fourth Amendment, an employ-
ee’s refusal to submit to the test may also be made grounds for discipline.
Employees “in sensitive positions” are subject to mandatory testing under criteria
set by each agency head; all other employees may be tested “[w]hen there is a rea-
sonable suspicion that any employee uses illegal drugs.” Exec. Order No. 12,564,
Sec. 3, 51 Fed. Reg. 32,889 (1986).
6
“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, but upon probable cause, supported by oath or affirmation, and particu-
larly describing the place to be searched, and the persons or things to be seized.”
U.S. Const. Amend. IV. The Fourth Amendment applies to the states through its
incorporation in the Due Process Clause of the Fourteenth Amendment. Mapp v.
Ohio, 367 U.S. 643, 655 (1961).
Four years ago, we examined the constitutional and statutory issues raised by
a proposal to bar known drug abusers from State service. 67 Opinions of the Attor-
ney General 322 (1982). However, the focus of that opinion was on what the State
may, and may not, do after it learns that an applicant is a drug abuser; that opinion
did not analyze the Fourth Amendment limits on the State’s acquiring the informa-
tion in the first place. Nor did it discuss the far more problematic issue of testing
employees, as distinct from applicants.

Gen. 58] 61

highly publicized drug abuse tragedies, drug testing programs are
being instituted widely. And, not surprisingly, they are often chal-
lenged in court by the affected employees. The case law is still de-
veloping and is unsettled. At this point, there are few definitive
legal answers, and we cannot predict with confidence what the
courts, especially the Supreme Court, will do.
This opinion, therefore, proceeds with caution. While we recog-
nize the importance of government’s attempts to curb drug abuse,
we are concerned that indiscriminate drug testing threatens tradi-
tional Fourth Amendment values. More perhaps than any other
provision of the Bill of Rights, the Fourth Amendment expresses
an essential quality of democracy—the defense of personal dignity
against violation by the state. We ought not experiment with these
rights. They are fragile. Once damaged they are not easily re-
paired. Once lost they are not easily recovered.
Adherence to tested Fourth Amendment principles is particu-
larly important when, as now, there is widespread clamor for a sim-
ple solution to a serious social problem. The saddest episodes in
American constitutional history have been those occasions, like the
internment of Americans of Japanese descent during World War
II, when we have bent our principles to the zealotry of the moment.
What is expedient is not necessarily fair, or constitutional. A war
on drugs is a good idea, but not if its first casualty is the Bill of
Rights.
Those who advocate indiscriminate drug testing of State employ-
ees and applicants for employment seek a drug-free workplace as
a harbinger of a drug-free society. These are laudable and desirable
ends. But we must pay careful attention to the means by which we
achieve those ends. The Constitution teaches us that how we pro-
ceed is as important as where we go. The old rubric “the end
doesn’t justify the means” is what the Bill of Rights, particularly
the Fourth Amendment, is all about.

                             II
       Statutory Authority of Secretary of Personnel

In our view, the Secretary of Personnel has statutory authority
to establish, by regulation, a drug testing program for applicants
and current employees alike, assuming that the Secretary finds a
link between drug abuse and the requirements of particular job cat-

62 [71 Op. Att’y

egories. We so concluded, as to applicants, in a prior opinion. 67
Opinions of the Attorney General 322, 324 (1982). We likewise
conclude that the Secretary’s broad authority to both “prescribe
what may constitute cause for removal” [Article 64A, §33] and “to
make such rules as he deems necessary or proper” in the carrying
out of the Merit System law [Article 64A, §11] empowers the Secre-
tary to adopt a drug screening program applicable to current em-
ployees.
However, the Secretary’s exercise of this authority must be
grounded in a finding about the link between drug abuse and job
performance. Article 64A, §§16 and 18(a). See 67 Opinions of the
Attorney General at 323-24. The Secretary does not have statuto-
ry authority to undertake a drug testing program in pursuit of
broader social goals, however desirable, like deterring drug abuse.
Moreover, the Secretary’s authority must of course be exercised
in conformity with constitutional requirements and federal statuto-
ry limitations. We address these vital constraints below.

                                      Ill
                 Fourth Amendment Requirements

A. Applicability of Fourth Amendment to Urinalysis
A preliminary question is whether the collection and testing of
a urine specimen is a “search” or “seizure,” within the meaning
of the Fourth Amendment.7 In our view, it is no less subject to the
Fourth Amendment than the taking of a blood or breath sample,
both of which have been held to be within the amendment’s
“searches and seizures” language. Schmerber v. California, 384
U.S. 757, 767 (1966) (blood); State v. Berber, 391 A.2d 107, 111 (R.I.
1978) (breath). To be sure, the cases are somewhat at odds over
whether the collection and subsequent testing of a urine specimen
is a “search,” a “seizure,” or both.8 But while the precise categori-

7
“A ‘search’ occurs when an expectation of privacy that society is prepared to con-
sider reasonable is infringed. A ‘seizure’ of property occurs when there is some
meaningful interference with an individual’s possessory interest in that property.”
United States v. Jacobsen, 466 U.S. 109, 113 (1984).
^Compare, e.g., McDonellv. Hunter, 612F.Supp. 1122,1127 (S.D. Iowa), affdli(>
F.2d 785 (8th Cir. 1985) (“[GJovernmental taking of a urine specimen is a seizure
within the meaning of the Fourth Amendment.”) with Capua v. City of Plainfield,
slip op. at 7-8, Civil Action No. 86-2992 (D.N.J. Sep. 18,1986) (“[U]rine testing consti-

Gen. 58] 63

zation might vary, perhaps depending upon the details of the test-
ing program, the cases uniformly hold that the Fourth Amendment
does apply to the kind of testing about which you inquire.9

B. Drug Testing of Employees
Although the taking of urine specimens for drug testing pur-
poses is a search or seizure under the Fourth Amendment, it is not
a per se violation of that amendment. Only “unreasonable search-
es and seizures” are prohibited. Carroll v. United States, 267 U.S.
132, 147 (1925). Hence, an inquiry into reasonableness is essential:
“The test of reasonableness under the Fourth Amend-
ment is not capable of precise definition or mechanical ap-
plication. In each case it requires a balancing of the need
for the particular search against the invasion of personal
rights that the search entails.” Bell v. Wolfish, 441 U.S.
520, 559 (1979).
See also Camara v. Municipal Court, 387 U.S. 523, 536-37 (1967).
The greater or more demeaning the intrusion, the more substantial
must be the reason for conducting the search. United States v. Af-
anador, 567 F.2d 1325, 1328 (5th Cir. 1978).
The right “to be free from unreasonable governmental intru-
sion” applies '‘wherever an individual may harbor a reasonable ‘ex-
pectation of privacy.’ ” Terry v. Ohio, 392 U.S. 1, 9 (1968). But the
“specific content and incidents of this right must be shaped by the

tutes a search and seizure.”). See also Pella v. Adams, 638 F.Supp. 94, 96 (D. Nev.
1986); Allen v. City of Marietta, 601 F.Supp. 482, 489 (N.D. Ga. 1985). Cf. People
v. Williams, 557 P.2d 399, 405 (Colo. 1976) (“It is settled that extraction or com-
pelled production of bodily fluids is a ‘search’ within the meaning of the Fourth
Amendment.”).
9
In United States v. Jacobsen, the Supreme Court held that a field test of a sub-
stance, limited to whether or not the substance was cocaine, was not a “search”
subject to the Fourth Amendment. “[GJovernmental conduct that can reveal wheth-
er a substance is cocaine, and no other arguably ‘private’ fact, compromises no legit-
imate privacy interest.” 466 U.S. at 123. But, in our view and that of the post-
Jacobsen decisions cited above, governmental taking of a urine specimen to find
out about a person’s past behavior, when the subsequent testing can reveal a range
of private facts, is much different from, and is not controlled by, this holding in
Jacobsen.
We note that the Supreme Court recently granted review in a case that raises
questions about the applicability of the Fourth Amendment to waste of a different
sort—trash placed in a communal trash bin. People v. Rooney, 175 Cal. App.3d 634
(1985), cert, granted 55 U.S.L.W. 3257 (U.S. Oct. 14, 1986).

64 [71 Op. Att’y

context in which it is asserted.” Id. Accordingly, we first examine
the extent to which the intrusion of drug testing, in the context of
State employment, compromises “reasonable” or “legitimate” ex-
pectations of privacy, because only “legitimate expectations of pri-
vacy and personal security” are reckoned on the individual’s side
of the Fourth Amendment balancing test. New Jersey v. T.L.O.,
469 U.S. 325, 337 (1985). An expectation of privacy is “legitimate,”
in Fourth Amendment terms, if the person has “an actual (subjec-
tive) expectation of privacy and... the expectation [is] one that soci-
ety is prepared to recognize as ‘reasonable.’ ” Katz v. United
States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). See, e.g.,
Hudson v. Palmer, 468 U.S. 517, 525 (1984) (approving Harlan
test).
In our view, State employees as a group have an actual, subjec-
tive expectation that their bodily functions will not be subject to
government intrusion. Nothing about State employment gives em-
ployees reason to suppose that their urination is subject to supervi-
sory inspection and probing. It states the obvious to say that State
employees, like everybody else, expect to dispose of their wastes
in private.
Nor is this expectation of privacy in any sense unreasonable—
rather, it is no more than what “ordinary citizens generally enjoy
as free persons in the community.” Security & Law Enforcement
Employees, District Council 82 v. Carey, 737 F.2d 187, 202 (2d
Cir. 1984). “The integrity of an individual’s person is a cherished
value of our society.” Schmerber v. California, 384 U.S. at 772.
Thus, for example, in Jones v. McKenzie, 628 F.Supp. 1500 (D.D.C.
1986), the public employer had ordered all employees in the unit
that provided school bus service to submit to a drug test. The plain-
tiff who brought the Fourth Amendment challenge to this en
masse testing was an attendant, not a driver or a mechanic. In hold-
ing that her Fourth Amendment rights had been violated, the court
observed that, whatever lessened expectations about privacy driv-
ers and mechanics might reasonably be thought to have, “it does
not follow that a school bus attendant like plaintiff should have ex-
pected to be exposed to such testing.” 628 F.Supp. at 1509 (empha-
sis omitted).
Nor does the mere fact of State employment negate this legiti-
mate expectation of privacy. A citizen who becomes a State employ-
ee does not—and may not be compelled to—give up his or her con-
stitutional rights as the price of gaining that employment.
Keyishian v. Board of Regents, 385 U.S. 589, 606 (1967). “[T]he
government may not condition government employment upon com-

Gen. 58] 65

pliance with unconstitutional conditions.” Shuman v. City of Phil-
adelphia, 470 F.Supp. 449, 457 (E.D. Pa. 1979).
It has been suggested that employees’ expectations of privacy
at work can be rendered “unreasonable” through the simple expe-
dient of the State’s telling employees that they will henceforth be
subject to searches. But such an argument surely proves too much:
“The government could not avoid the restrictions of the Fourth
Amendment by notifying the public that all telephone lines would
be tapped, or that all homes would be searched.” United States
v. Davis, 482 F.2d 893, 905 (9th Cir. 1973). In the words of one com-
mentator, the Fourth Amendment “guarantees some identifiable
measure of privacy to us all and does not lose its potency with the
ebb and flow of community opinion.” Yackle, The Burger Court
and the Fourth Amendment, 26 U. Kan. L. Rev. 335, 362 (1978).
However, some categories of State employees can reasonably be
expected to have somewhat diminished expectations of privacy,
given the nature of their work. “[N]ot all individuals enjoy the
same expectation of privacy and, therefore, not the same degree
of Fourth Amendment protection.” Turner v. Fraternal Order of
Police, 500 A.2d 1005, 1007-1008 (D.C. 1985). Someone who be-
comes a police officer must know what that job entails: the extraor-
dinary authority to use deadly force if necessary and the special
obligation of those who enforce the law to obey it themselves.
Hence, “police officers may in certain circumstances enjoy less con-
stitutional protection than the ordinary citizen.” Turner v. Frater-
nal Order of Police, 500 A.2d at 1008. For correctional officers,
as well, reasonable expectations of privacy are diminished by the
very nature of their working environment—primarily, the danger
to institutional security posed by trafficking in drugs and drug
abuse. See Security & Law Enforcement Employees v. Carey, 737
F. 2d at 202; McDonell v. Hunter, 612 F.Supp. 1122
Iowa), aff’d 746 F.2d 785 (8th Cir. 1985). See also Division 241
Amalgamated Transit Union v. Suscy, 538 F.2d 1264, 1267 (7th
Cir. 1976); Jones v. McKenzie, 628 F.Supp. at 1508.
These expectations of privacy, whether of employees generally
or of public safety employees, are infringed significantly by drug
testing. First, the direct supervision needed to assure that a speci-
men is really that of the person from whom it supposedly comes
is an embarrassing governmental intrusion into the privacy that
ordinarily attends the discharge of bodily wastes. Cf Mary Beth
G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983) (discuss-
ing humiliation entailed by strip search). Whether the testing pro-
cedures entail direct observation of the employee while urinating

66 [71 Op. Att’y

or a search of the employee before he or she provides the specimen,
“[i]t is a serious intrusion upon the sanctity of the person, which
may inflict great indignity and arouse strong resentment.” Terry
v. Ohio, 392 U.S. 1, 17 (1968). Cf United States v. Jacobsen, 466
U.S. 109 (1984) (de minimis infringement of privacy is constitu-
tionally reasonable).10
Second, and quite apart from governmental supervision of the
act of excretion, “[o]ne does not reasonably expect to discharge
urine under circumstances making it available to others to collect
and analyze in order to discover the personal physiological secrets
it holds, except as part of a medical examination.... One clearly has
a reasonable and legitimate expectation of privacy in such personal
information contained in his bodily fluids.” McDonell, 612 F.Supp.
at 1127.
In light of these very significant personal privacy interests (albe-
it reduced for public safety employees), we next examine the other
side of the balance—the governmental interests that could be said
to make the serious intrusion necessary. With respect to most State
employees, the governmental employer’s interest that could be as-
serted to justify the testing is genuine, but very diffuse: to promote
efficiency by detecting those whose drug abuse poses a risk of di-
minished job performance. However, wholesale testing of employ-
ees is at best a clumsy device for achieving the goal. Poor perfor-
mance resulting from current drug abuse is an observable fact and
can be dealt with through the customary personnel methods of
counseling or, if necessary, discipline. Learning, through urinaly-
sis, that an employee used illegal drugs at some time in the past,

10
Of course, a testing program that does not involve supervision of the act of urina-
tion is possible. But a program without that degree of intrusion lacks an important
safeguard from the government’s point of view. The absence of supervision means
that an employee who does abuse drugs is able to substitute someone else’s “clean”
urine. To safeguard against this possibility, the new federal testing program calls
for supervision of an employee’s urination if “the agency has reason to believe that
a particular employee may alter or substitute the specimen to be provided.” Exec.
Order No. 12,564, Sec. 4(d).
In terms of the balancing of private and governmental interests required under
the Fourth Amendment, a program that allows actual abusers to escape detection
obviously undercuts the governmental interest. For Fourth Amendment purposes,
a less intrusive but less effective program is as problematic as a more intrusive but
more effective one. “If a blanket search program has little or no effectiveness, it
is in substance merely a kind of harassment, a show of power, or a ‘fishing expedi-
tion,’ and therefore per se unreasonable under the fourth amendment.” Note, Drag-
net Drug Testing in Public Schools and the Fourth Amendment, 86 Col. L. Rev.
852, 870 (1986) (“Dragnet Drug Testmg”).

Gen. 58] 67

and presumably off-duty, is a poor surrogate for direct observation
of impaired condition during working hours.11
State employees are no different than anybody else. They have
private lives outside the workplace, and some of them no doubt en-
gage in activities that are foolish, self-destructive—and, some-
times, illegal. When these activities result in poor job performance,
the State can and should respond to that performance. But the
State, as employer, simply has no business trying to ferret out pri-
vate misconduct that does not affect job performance. An effort
to do so through en masse drug testing is constitutionally unac-
ceptable.
At the same time, public safety employees are also affected by
much more concrete and substantial governmental interests, for
the same reasons that their jobs entail a reduced expectation of pri-
vacy. As one court wrote of police officers:
“Without a doubt, drug abuse can have an adverse effect
upon a police officer’s ability to execute his duties. Given
the nature of the work and the fact that not only his life,
but the lives of the public rest upon his alertness, the ne-
cessity of rational action and a clear head unbefuddled by
narcotics becomes self-evident. Thus, the use of controlled
substances by police officers creates a situation fraught
with serious consequences to the public.” Turner v. Fra-
ternal Order of Police, 500 A.2d at 1008.
Given the endemic problem of drug abuse among inmates, the gov-
ernmental interest in assuring that its correctional officers are not
themselves a potential source of drugs is likewise imperative.
These interests are less likely to be adequately served by the em-
ployer’s simply observing the behavioral manifestations of drug
abuse and then acting on those observations. Poor performance by
a police or correctional officer might well have disastrous, irrepara-

nUrinalysis, it should be remembered, does not disclose whether an employee is
under the influence of drugs while at work. The test, if accurate, instead reveals
the chemical residue of drug use during the days or perhaps weeks preceding the
test, even if the person tested has discontinued the use of drugs. Dragnet Drug
Testing at 854 n. 10.
Therefore, testing is at best an indirect way of responding to poor job perfor-
mance caused by drug abuse. At the same time, we recognize that drug testing may
well have predictive value. An employer can reasonably expect that, as a group,
employees who have recently abused drugs will have more performance problems
than employees who have not abused drugs.

68 [71 Op. Att’y

ble consequences. The State has a significant interest in doing ev-
erything it constitutionally can to avert this risk in the first place.
In balancing the employees’ and the State’s respective interests,
we reach different conclusions about the two different categories
of employees in question—State employees generally, on the one
hand, and public safety employees, on the other.12
In our opinion, mandatory urine testing of State employees, with-
out regard to the nature of their jobs and without particularized
probable cause, would violate the Fourth Amendment. The govern-
mental interest as an employer in detecting a few drug abusers
among its employees, whose use of drugs might or might not affect
their job performance, is simply too weak to justify the indiscrimi-
nate invasion of all employees’ privacy:
“We do not permit a search of every house on a block
merely because there is reason to believe that one con-
tains evidence of criminal activity.... Nor can the success
of massive testing justify its use. We would not condone
the beatings of suspects and the admissibility of their con-
fessions merely because a larger number of convictions
resulted.” Capua v. City of Plainfield, slip op. at 2-3, Civil
Action No. 86-2992 (D.N.J. Sep. 18, 1986) (emphasis in
original).
The logic of wholesale drug testing—that the government’s in-
terest in detecting the few drug abusers in its work force is inher-
ently superior to the privacy interest of all employees and is, per-
force, “reasonable”—shrinks the shield of the Fourth Amendment
to insignificance. We reject this false logic, as have the courts. “The
invidious effect of such mass, round-up urinalysis is that it casually
sweeps up the innocent with the guilty and willingly sacrifices each
individual’s Fourth Amendment rights in the name of some larger
public interest.” Capua v. City of Plainfield, slip op. at 17. As an-
other court observed, if government’s desire to identify drug abus-
ers justified wholesale drug testing of employees, “[s]o might

12
Because the Fourth Amendment balancing test turns on the particular circum-
stances, we do not view our conclusions as necessarily applicable in other employ-
ment settings. And we do not address the constitutionality of drug testing outside
the employment context.
Nor can we, in the abstract, attempt to delineate all types of “public safety” jobs.
Again, the necessary line-drawing can be done only after consideration of the partic-
ular circumstances. For present purposes, “public safety employees” include law
enforcement and correctional officers.

Gen. 58] 69

searches of employees’ homes and taps on their telephones.” Mc-
Donell v. Hunter, 612 F.Supp. at 1130.13 In our view, drug testing
of State employees generally must be predicated on particularized
probable cause if it is to comply with the Fourth Amendment. Man-
datory testing based on any standard less than this well-
established constitutional norm is not permissible.14
With respect to public safety employees, however, it is our opin-
ion that a somewhat relaxed basis for drug testing meets the
Fourth Amendment’s “reasonableness” standard. As discussed
above, public safety employees have a reduced expectation of pri-
vacy, given the nature of the job; conversely, the government has

13
“No doubt most employers consider it undesirable for employees to
use drugs, and would like to be able to identify any who use drugs.
Taking and testing body fluid specimens, as well as conducting search-
es and seizures of other kinds, would help the employer discover drug
use and other useful informa-tion about employees. There is no doubt
about it—searches and seizures can yield a wealth of information use-
ful to the searcher. (That is why King George Ill’s men so frequently
searched the colonists.) That potential, however, does not make a gov-
ernmental employer’s search of an employee a constitutionally reason-
able one.” McDonell v. Hunter, 612 F.Supp. at 1130.
See also Jones v. McKenzie, 628 F.Supp. at 1509 (urine testing of school transporta-
tion employees not responsible for driving or maintenance violates Fourth Amend-
ment).
14
We are not at all suggesting that the State must ignore drug abuse by employees.
Observed deficiencies in performance may, of course, be dealt with appropriately.
See text accompanying note 11 above. Perhaps, for some jobs, employees might be
required to demonstrate the requisite job skills at the start of the work day. If, for
example, a State agency has a generalized concern that drug abuse by some of its
employees is impairing the motor skills essential to the job, it is entirely free to sim-
ply require a quick test of employees’ coordination or dexterity. The existence of
“alternative mechanisms” to achieve the governmental interest means that a more
intrusive route to the same ends is not reasonable under the Fourth Amendment.
See Delaware v. Prouse, 440 U.S. 648, 659 (1979).
What the Fourth Amendment prohibits, in our view, is “a form of surveillance,
albeit a technological one,” of employees’ off-duty activities without the probable
cause ordinarily required by the amendment:
“We would be appalled at the spectre of the police spying on employ-
ees during their free time and then reporting their activities to their
employers. ... [Drug testing] reports on a person’s off-duty activities
just as surely as [if] someone had been present and watch-ing. It is
George Orwell’s ‘Big Brother’ Society come to life.” Capua v. City
of Plainfield, slip op. at 2.
See also Shuman v. City of Philadelphia, 470 F.Supp. 449 (E.D. Pa. 1979).

70 [71 Op. Att’y

a heightened interest, given the potential consequences of drug-
induced mistakes or corruption.
But even where public safety employees are concerned, most
courts have required more than a bare showing of the govern-
ment’s obvious interest in detecting drug use among employees in
these kinds of jobs. As one court wrote of prison guards, “[Pjrison
employees do not lose all of their Fourth Amendment rights at the
prison gates.” McDonell v. Hunter, 612 F.Supp. at 1128 (emphasis
in original). We do not accept the notion that prison guards have
as little Fourth Amendment protection as prison inmates;15 or that
police officers, though they work in an organization characterized
by a military-like command structure, have as little protection as
soldiers in a barracks.16
We view the correct application of the balancing test to yield a
“reasonable suspicion” prerequisite to drug testing of public safe-
ty employees. That is, testing is permissible if there is a “reason-
able, objective basis to suspect that a urinalysis will produce evi-
dence of an illegal drug use.” Turner v. Fraternal Order of
Police, 500 A.2d at 1009. See also City of Palm Bay v. Bauman,
475 So.2d 1322, 1325-26 (Fla. App. 1985) (police officers and fire-
fighters may be tested for drugs only if “reasonable suspicion”
standard is met). Likewise, McDonell v. Hunter, while enjoining
a testing program that subjected every correctional officer to the
possibility of testing, approved testing “only on the basis of a rea-
sonable suspicion, based on specific objective facts and reasonable
inferences drawn from those facts in light of experience,” that a
given employee is abusing drugs. 612 F.Supp. at 1130. In Capua
v. City of Plainfield, an order that all fire fighters submit to a sur-
prise urinalysis test was held to violate the Fourth Amendment;
but, the court also held, testing of these employees under “the indi-
vidualized reasonable suspicion standard” would meet Fourth
Amendment standards. Slip op. at 20. Cf Security & Law Enf Em-
ployees v. Carey, 737 F.2d at 204 (“a reasonable suspicion standard
should govern strip searches of correction officers working in cor-

l5
Armstrong v. New York State Comm’r of Correction, 545 F.Supp. 728, 730
(N.D.N.Y. 1982) (“rejecting] the proposition ... that prison employees must suffer
a diminution in fourth amendment protections equal in extent to that of prison in-
mates”).
^Turner v. Fraternal Order of Police, 500 A.2d at 1008 (refusing to equate priva-
cy expectations of police and members of military). See also United States v. McIn-
tyre, 582 F.2d 1221, 1224 (9th Cir. 1978) (“A police officer is not, by virtue of his
profession, deprived of the protection of the Constitution.”). Cf. Committee for GI
Rights v. Callaway, 518 F.2d 466, 477 (D.C. Cir. 1975).

Gen. 58] 71

rectional facilities”).17 See also Division 2^1 Amalgamated Tran-
sit Union v. Suscy, 538 F.2d at 1267 and Jones v. McKenzie, 628
F.Supp. at 1508 (testing of transportation employees).18
It is impossible to fully define either “probable cause” or “rea-
sonable suspicion” in the abstract. As a comparative matter, “rea-
sonable suspicion” is less stringent than “probable cause,” al-
though even “reasonable suspicion” must be founded upon
objective facts and rational inferences derived from practical expe-
rience, rather than “[ijnchoate, unspecified suspicions,” and must
be directed toward the particular employees to be tested. Security
& Law Enf. Employees v. Carey, 737 F.2d at 205.19 The following
examples, drawn from Carey, illustrate the difference between the
two standards:

17
See also Armstrong v. New York State Comm’r of Correction, 545 F. Supp. at
731 (strip search of corrections officer must be justified by need “to maintain institu-
tional security” or “articulable facts as to why [officer] might have had contraband
concealed in his person”).
18
In addition, a “reasonable suspicion” basis underlies new drug and alcohol testing
rules recently announced by the Federal Railroad Administration. See Railway
Labor Executives’ Ass’n v. Dole, 121 L.R.R.M. (BNA) 2442 (9th Cir.), vacated 474
U.S. 1099 (1986).
One recent case, Allen v. City of Marietta, 601 F.Supp. 482 (N.D. Ga. 1985), ap-
parently reflects a more permissive standard than that approved by most other
courts. In Allen, the court rejected a Fourth Amendment challenge to urinalysis
testing of employees who worked around high voltage electric lines. These employ-
ees were required to submit to testing on pain of firing, after an under-cover agent
observed them smoking marijuana. Notwithstanding these compelling particular
circumstances, which presumably would have satisfied the normal “probable cause”
standard, the court articulated a broad test for permissible government searches
of this kind:
“The only facts before the court establish as a matter of law that the
tests were administered in a purely employment context [as distinct
from law enforcement] as part of the government’s legitimate inquiry
into the use of drugs by employees engaged in extremely hazardous
work. The [employer] has a right to make warrantless searches of its
employees for the purpose of determining whether they are using or
abusing drugs which would affect their ability to perform safely their
work with hazardous materials.” 601 F.Supp. at 491.
Cf. Shoemaker v. Handel, 795 F.2d 1136 (3rd Cir. 1986) (Fourth Amendment per-
mits urine testing of jockeys without particularized suspicion, given intense regula-
tion of horse racing).
19
The Superintendent of the Maryland State Police has established a drug testing
program under which “all police employees will be subject to drug testing” on a
random basis. General Order No. 01-86115, at 1 (July 1,1986). This program should
be reexamined in light of this opinion. See also note 26 below.

72 [71 Op. Att’y

1. Prior to the search, a prison superintendent received informa-
   tion from two sources, one of whom was known to be reliable, that
   a particular guard (Roe) was bringing contraband into the prison.
   In addition, another guard observed Roe discarding what appeared
   to be a marijuana cigarette. These facts amounted to probable
   cause to search Roe.
2. Prior to the search, contraband had been turning up inside the
   prison. “General rumors” attributed this contraband to two
   guards. The superintendent received the same information from
   an inmate who had previously been an informant. These facts
   amount to reasonable suspicion to search the two guards.
3. Prior to the search, an inmate who had no history of providing
   reliable information told the authorities that a guard was bringing
   drugs into the prison and selling them to inmates. There were no
   corroborating circumstances. These facts failed to satisfy the rea-
   sonable suspicion standard.
   If the “reasonable suspicion” standard is satisfied, mandatory
   testing of a public safety employee would comport with the Fourth
   Amendment.20

C. Consent
The elaborate Fourth Amendment balancing test discussed
above would be academic if the State could simply extract “con-

20
We have also considered whether mandatory testing of a public safety employee
under these circumstances would violate the employee’s constitutionally distinct
right of privacy, grounded in the “concept of personal liberty” under the Fourteenth
Amendment. Whalen v. Roe, 429 U.S. 589, 598 n. 23 (1977). This right of privacy
protects, among other things, “the individual interest in avoiding disclosure of per-
sonal matters.” 429 U.S. at 599.
However, much the same balancing process as is called for by the Fourth Amend-
ment applies in this context as well. See Whalen v. Roe, 429 U.S. at 599-602 (compila-
tion and limited intra-governmental disclosure of certain medical information not
an impermissible invasion of privacy); Plante v. Gonzalez, 575 F.2d 1119, 1134 (5th
Cir. 1978) (privacy interest not absolute and must be balanced against governmental
need for information). For the reasons discussed in text, we conclude that mandato-
ry urine testing of public safety employees, under a “reasonable suspicion” stan-
dard, would not violate the constitutional right to privacy.
In this regard, the results of drug testing, constituting medical data about an indi-
vidual, are protected against unauthorized disclosure. §10-617(b) of the State Gov-
ernment Article (“SG” Article). The court in Shoemaker v. Handel emphasized com-
parable confidentiality protection in rejecting the claim that drug testing of jockeys
violated the jockeys’ right to privacy. 795 F.2d at 1144.

Gen. 58] 73

sent” for drug testing from its employees. Voluntary consent to
a search, without more, satisfies the Fourth Amendment. Schnec-
kloth v. Bustamante, 412 U.S. 218 (1973). And, indeed, the Depart-
ment of Justice’s position is that a public employee who is told that
drug testing is a condition of employment and who does not quit
has consented to the testing.21 We totally reject this skewed notion
of consent, which drains the concept of all genuine meaning.
A valid consent to a search must “in fact [be] voluntarily given,
and not [be] the result of duress or coercion, express or implied.”
Schneckloth, at 248-49. It flies in the face of economic reality to
suppose that an employee “voluntarily” consents to a drug test
when the alternative is losing his or her job, or for that matter that
an applicant voluntarily consents when the alternative is denial of
the job. Agreement to a search, motivated by fear that refusal will
lead to loss of one’s livelihood, is not voluntary consent. Serpas v.
Schmidt, 621 F.Supp. 734, 743 (N.D. 111. 1985).
Nor can voluntary consent fairly be inferred from a person’s de-
cision to accept a job with knowledge that drug testing is a condi-
tion of that job. In both McDonell v. Hunter and Security & Law
Enf. Employees v. Carey, the prison employees were told, at the
outset of their employment, that they would be subject to certain
searches. In McDonell, the employees signed a consent form ex-
pressing their agreement, among other things, “to submit to a uri-
nalysis or blood test when requested by the [prison administra-
tor].” 612 F.Supp. at 1134. In Carey, they were given a rule book
including a policy that “ ‘any employee while on duty shall be sub-
ject to search.’ ” 737 F.2d at 193. Nevertheless, neither circum-
stance was viewed as giving rise to voluntary consent. McDonell,
612 F.Supp. at 1131; Carey, 737 F.2d at 202 n. 23. Both courts evi-
dently took account of the inherent coercion of such “consent.”
We acknowledge that the cases in this area are not always consis-
tent with one another or altogether clear as to their doctrinal un-
derpinnings. In United States v. Sihler, 562 F.2d 349 (5th Cir.
1977), a prison employee came to work daily past a large sign stat-
ing that “all persons entering upon these confines are subject to
routine searches of their person, property or packages.” The court

21
Memorandum of Points and Authorities of Amicus Curiae United States in Sup-
port of Defendants’ Motion to Dismiss at 24, Guiney v. Roache, Civil Action No.
86-1346-K (D. Mass, filed Sep. 18, 1986) (Police officers are allowed “the option to
terminate or avoid any employment relationship with the Department and ... avoid
the test. Thus, any officer who decides to take the test and remain employed neces-
sarily will be making that decision ‘voluntarily.’ ” ).

74 [71 Op. Att’y

held that Sihler, having “voluntarily accepted and continued an em-
ployment which subjected him to search on a routine basis,” had
consented to the search that led to his conviction for possessing
marijuana. 562 F.2d at 351.
Nevertheless, we think the better reasoned cases recognize that
the exercise of choice is not the same thing as voluntary consent.
That one has warning of a search and a choice of whether to submit
to it or not is surely one factor in assessing the overall reasonable-
ness of the search. Cf. Little v. State, 300 Md. 485, 506 (1984). But
if the choice to decline the search carries with it significant adverse
consequences, then the alternative—submitting to the search—
does not reflect voluntary consent. See, e.g., Blackburn v. Snow,
771 F.2d 556, 567 (1st Cir. 1985) (agreeing to unreasonableKsearch
in order to visit brother in jail not voluntary consent); Gaioni v.
Folmar, 460 F.Supp. 10, 14 (N.D. Ala. 1978) (entering arena past
sign notifying entrants of search not voluntarily consent); 63 Opin-
ions of the Attorney General 595, 601-02 (1978) (entering Port Ad-
ministration property past sign notifying entrants of search not
voluntary consent).22
The point has been well summarized by a leading scholar in the
field:
“ ‘Consent’ in any meaningful sense cannot be said to
exist merely because a person (a) knows that an official
intrusion into his privacy is contemplated if he does a cer-

22
We do not believe that cases involving breath-analysis testing under ‘ ‘implied con-
sent” laws are pertinent to the question of consent to workplace drug testing. In
Maryland, as in many other states, a person who drives “is deemed to have consent-
ed... to take a chemical test to determine the alcohol content of his blood if he should
be detained on suspicion of driving ... in violation of an alcohol restriction.” §16-
205.1(a) of the Transportation Article (“TR” Article). The driver is not actually com-
pelled to take the test. TR §16-205.1(b); §10-309(a) of the Courts Article. But if the
driver refuses a request to do so, the consequence is a suspension of the driver’s
license. TR §16-205.1(f)(4). Such laws are constitutional, not because the driver’s
“implied consent” is truly voluntary, but because the search itself is constitutionally
reasonable.
“[T]he State could legitimately compel the suspect, against his will,
to accede to the test. Given, then, that the offer of taking a blood-
alcohol test is clearly legitimate, the action becomes no less legitimate
when the State offers a second option of refusing the test, with the
attendant penalties for making that choice.” South Dakota v. Neville,
459 U.S. 553, 563 (1983) (emphasis in original).
In Ringe v. Romaro, 624 F.Supp. 417, 425 (W.D. La. 1984), the court rejected the
argument that consent to a search of bar patrons was derived from a statute provid-
ing that those who enter a bar “shall be deemed to have consented” to a search.

Gen. 58] 75

 tain thing, and then (b) proceeds to do that thing. Were
 it otherwise, the police could utilize the implied consent
 theory to subject everyone on the streets after 11 p.m. to
 a search merely by making public announcements in the
 press, radio and television that such searches would be un-
 dertaken.” 2 LaFave, Search and Seizure §8.2, at 677
 (1978).

The Fourth Amendment is a bulwark of personal liberty. The
State cannot insist that its citizens choose between the opportunity
to work for the State and their constitutional rights.23

D. Drug Testing of Applicants
The Fourth Amendment balancing test yields a somewhat differ-
ent result on the question of whether applicants for State employ-
ment may be subject to mandatory drug testing as part of the eval-
uation process itself.
Applicants presumably have, and are entitled to have, relatively
little overall expectation of privacy about the hiring process. The
very point of the application process is for the prospective employ-
er to learn facts pertinent to the applicant’s ability to perform the
job. An application may be rejected if “the applicant is physically,
mentally, or morally unfit for the performance of the duties of the
position to which he seeks employment.” COMAR 06.01.01.
17A(3).24

23It is no answer to suggest that those who seek government jobs should simply
look for work elsewhere:
“[I]f the government were to announce that hereafter all telephones
would be tapped, perhaps to counter an outbreak of political kidnap-
pings, it would not justify, even after public knowledge of the wiretap-
ping plan, the proposition that anyone using a telephone consented to
being tapped. It would not matter that other means of communication
exist—carrier pigeons, two cans and a length of string; it is often a
necessity of modern living to use a telephone. So also is it often a ne-
cessity to fly on a commercial airliner, and to force one to choose be-
tween that necessity and the exercise of a constitutional right is coer-
cion in the constitutional sense.” United States v. Albarado, 495 F.2d
799, 807, n. 14 (2d Cir. 1974) (rejecting the argument that airline pas-
sengers consent to magnetometer searches, while upholding the rea-
sonable-ness of such searches).
24COMAR 06.01.01.17A(4) provides that an application may be rejected if the appli-
cant “is addicted to the habitual or excessive use of drugs, narcotics, or intoxicating
beverages.” However, this provision must be administered consistently with the Re-

76 [71 Op. Att’y

At the same time, applicants have—and are entitled to have—an
expectation that their private affairs and bodily integrity will not
be probed for reasons extraneous to the needs of the job for which
they have applied. The Secretary’s interest in requiring a drug test
turns on the link between drug abuse and job requirements. See
Part II above (scope of Secretary’s authority). Cf Article 100,
§95A(a) (employer may not ask medical questions lacking “a direct,
material, and timely relationship to the applicant’s fitness or capac-
ity to properly perform the activities or responsibilities of the de-
sired position”). Moreover, even drug abusers have a legitimate ex-
pectation, grounded in the federal Rehabilitation Act of 1973, as
well as common sense, that their drug abuse will be irrelevant to
at least some State jobs. See Part VI below.
Because the governmental interest is in ascertaining an appli-
cant’s fitness for a given job, wholesale drug testing of all appli-
cants, without regard to job requirements, would violate the
Fourth Amendment. However, if drug testing is in furtherance of
a bona fide effort to learn whether an applicant is capable of per-
forming the duties of a particular job, we see no Fourth Amend-
ment barrier to the testing. McDonell v. Hunter, 612 F.Supp. at
1130 n.6 (“The Fourth Amendment ... does not preclude taking a
body fluid specimen as part of a pre-employment physical examina-
tion.”). In other words, if drug abuse would prevent the perfor-
mance of the duties of the job or would present a danger to the
public or to property—the standard under which the Rehabil- ita-
tion Act permits denial of a job to a drug abuser—an applicant may
be tested to ascertain that abuse.25
This approach permits routine testing of all applicants for public
safety jobs. Just as State employees who hold jobs directly related
to public safety are entitled to lesser expectations of privacy than
other employees, so applicants for public safety jobs should expect
a more probing evaluation than other applicants. And, of course,

habilitation Act’s requirement that drug abuse or alcoholism alone, without evident
impairment of the applicant’s ability to meet job requirements, is not a proper basis
for a refusal to hire. See Part VI below.
25If the physical requirements of a job are so demanding that employees are re-
quired to take either an entry physical examination or periodic physicals of which
urinalysis is a routine diagnostic component, there is no Fourth Amendment barrier
to testing the urine specimen for drugs. McDonell v. Hunter, 612 F.Supp. at 1130
n. 6. Physical examinations of this kind are patently not a mere pretext to conduct
otherwise improper drug testing. The standard is whether “a job requires unusual
physical effort, like performing arduous or hazardous tasks.” Department of Per-
sonnel Pre-Employment Physical Examination Procedures 2 (Feb. 24, 1984).

Gen. 58] 77

the State’s interest in avoiding the employment of drug abusers
in public safety jobs is correspondingly greater. Because of the ob-
vious link between avoidance of drug abuse and job requirements,
we conclude that—as to jobs directly related to public safety—the
Fourth Amendment balancing test permits the State to require
drug testing of all applicants.26 But, we reiterate, this conclusion
does not apply across-the-board to other categories of jobs. More-
over, an applicant’s agreement to submit to drug testing may not
be boot-strapped into his or her blanket consent for testing during
future employment.

                                    IV
                 Equal Protection Requirements

In general, legislation is presumed to be valid and will be sus-
tained against an equal protection challenge if the classification
drawn by the statute is “rationally related to a legitimate govern-
mental purpose.” Cleburne v. Cleburne Living Center, 473 U.S.
432, 446 (1985).27 In determining whether a classification is ratio-
nally related to a legitimate state purpose, the inquiry is as follows:
“(1) Does the challenged legislation have a legitimate purpose? and
(2) Was it reasonable for the lawmakers to believe that use of the
challenged classification would promote that purpose?” Western
& So. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 668
(1981).28

26
We therefore see no Fourth Amendment problem with those elements of the State
Police testing program that involve applicants or trainees. Cf. note 19 above.
27
The Equal Protection Clause prohibits any state from “denying] to any person
within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV,
§1. A drug testing program would be subject merely to “rational basis” review. A
challenged classification is subject to strict scrutiny only when a fundamental right
is impaired or a suspect class is disadvantaged. Massachusetts Bd. of Retirement
v. Murgia, 427 U.S. 307, 312 (1976). Public employment is not considered a funda-
mental right. Id. Moreover, drug abusers would not constitute a suspect class,
which is traditionally viewed as a classification made on the basis of race, religion,
alienage, or national origin. Racetrac Petroleum, Inc. v. Prince George’s County,
601 F.Supp. 892, 913 (D.Md. 1985). See also City of New Orleans v. Dukes, 427 U.S.
297, 303 (1976).
28
The same test applies to administrative regulations. See, e.g., New York City
Transit Auth. v. Beazer, 444 U.S. 568, 587-88 (1979). Under the Merit System law,
the Secretary’s rules “shall have the force and effect of law.” Article 64A, §11.

78 [71 Op. Att’y

In our view, the testing of employees generally, and the dis-
charge of those who are drug abusers, would not violate the Equal
Protection Clause.29 The “legitimate governmental purpose” is un-
questionable: to maintain a competent, reliable work force. Fur-
thermore, a legislative judgment that the barring of drug abusers,
as a class, from State employment would promote that purpose
cannot be said to be unreasonable.30
New York City Transit Auth. v. Beazer, 440 U.S. 568 (1979),
seems to be dispositive. In that case, the Supreme Court upheld the
constitutionality of a New York City Transit Authority (“Authori-
ty”) rule that barred current methadone users from all jobs in the
subway system. The district court had found the rule to be uncon-
stitutionally overbroad: “Because it is clear that substantial num-
bers of methadone users are capable of performing many of the
jobs at [the Authority], the [district] court held that the Constitu-
tion will not tolerate a blanket exclusion of all users from all jobs.”
440 U.S. at 578.
The Supreme Court reversed, however, noting that “the special
classification created by [the Authority’s] rule serves the general
objectives of safety and efficiency.” The Supreme Court flatly re-
jected the view that the Equal Protection Clause mandated an indi-
vidualized determination of the impact of drug use on job perfor-
mance:
“At its simplest, the District Court’s conclusion was
that [the Authority’s] rule is broader than necessary to
exclude those methadone users who are not actually quali-
fied to work for [the Authority]. We may assume not only
that this conclusion is correct but also that it is probably
unwise for a large employer like [the Authority] to rely
on a general rule instead of individualized consideration
of every job applicant. But these assumptions concern
matters of personnel policy that do not implicate the prin-
ciple safeguarded by the Equal Protection Clause .... [T]he
exclusionary line challenged by [the methadone users] ‘is
not one directed “against” any individual or category of
persons, but rather it represents a policy choice ... made

29
We previously reached the same conclusion about the refusal to hire drug abus-
ers. 67 Opinions of the Attorney General at 324-26.
3
°A decision by the Secretary to adopt any such regulation must be preceded by a
rulemaking process that will permit public comment and develop a record as to the
link between drug use and job performance. SG §10-112.

Gen. 58] 79

 by that branch of Government vested with the power to
 make such choices.’ ” Id. (quoting Marshall v. United
 States, 414 U.S. 417, 428 (1974)).

Thus, the Supreme Court concluded, “[n]o matter how unwise it
may be for [the Authority] to refuse employment to individual car
cleaners, track repairmen, or bus drivers simply because they are
receiving methadone treatment, the Constitution does not autho-
rize a federal court to interfere in that policy judgment.” 440 U.S.
at 594.31
Of course, the Equal Protection Clause also permits a more selec-
tive approach—namely, adoption of a testing program for those
employees whose work is most directly linked to public safety, like
correctional officers. A classification thus founded on public safety
concerns readily evinces its rational basis. See Shoemaker v. Han-
del, 608 F.Supp. 1151 (D.N.J. 1985), affd, 795 F.2d 1136 (3d Cir.
1986).32
Whatever the scope of the testing program, the Equal Protection
Clause requires that a drug user terminated from employment not
be totally precluded from obtaining employment with the State at
a later date, if the employee stops abusing drugs. Compare Schan-
uel v. Anderson, 708 F. 2d 316, 319-20 (7th Cir. 1983) (statute pro-
hibiting employment of felons as detectives until several years
after conviction have elapsed upheld against an equal protection

31
Although this passage speaks to the barring of job applicants, the Authority’s
rule applied to current employees as well and resulted in the firing of some. See
440 U.S. at 576 n. 11 and accompanying text. The Supreme Court did not distinguish
between current and prospective employees in its equal protection analysis.
We rec/0,iize that, in cases involving refusals to hire ex-felons, the Equal Protec-
tion Clause has been construed to require some direct correlation between the dis-
qualifying condition and the nature of the job. E.g., Kindem v. City of Alameda,
502 F. Supp. 1108 (N.D. Cal. 1980); Butts v. Nichols, 381 F.Supp. 573 (S.D. Iowa
1974). See 71 Opinions of the Attorney General 242 (1986). Cf. Cobb v. United
States Merchant Marine Academy, 592 F.Supp. 640, 643 (E.D.N.Y. 1984). In light
of Beazer, however, we cannot say that a comparable correlation between current
drug use and particular job requirements is mandated by the Equal Protection
Clause.
Our conclusion about equal protection applies as well to the substantive aspect
of due process, which is analyzed similarly. See Beazer, 440 U.S. at 592 n. 38. See
generally 67 Opinions of the Attorney General at 328-29.
32
As discussed in Part III B above, the Fourth Amendment imposes constraints on
drug testing even of public safety employees. But Fourth Amendment constraints
do not affect our conclusion that the Equal Protection Clause does not prohibit a
drug testing program for correctional officers.

80 [71 Op. Att’y

claim, because the statute did not create a permanent bar to em-
ployment) with Kindem v. City of Alameda, 502 F.Supp. 1108
(N.D.Cal. 1980) (enforcement of an ordinance that permanently
barred ex-felons from city employment enjoined on equal protec-
tion grounds). See also New York City Transit Auth. v. Beazer,
440 U.S. at 572 n.3 (“A policy excluding all former users would be
harder to justify than a policy applicable only to persons currently
receiving treatment.”).

                             V
                Due Process Requirements

A. Liberty Interest
Any testing of current State employees, and the discharge of
those whose results confirm the use of illicit drugs, may not “de-
prive any person of life, liberty, or property, without due process
of law.” U.S. Const. Amend. XIV, §1. In an employment setting,
a “liberty” interest has been recognized when the dismissal “im-
pose[s] on [the employee] a stigma or other disability that fore-
close[s] his freedom to take advantage of other employment oppor-
tunities.” Board of Regents v. Roth, 408 U.S. at 573. The Court of
Special Appeals recently summarized the elements of this kind of
“liberty” claim as follows:
“To invoke this liberty interest, the terminated employ-
ee must show that his former employer has published
false statements about him.... He must also show that
these untruths are preventing him from securing similar
employment.... Lastly, it must appear that the false infor-
mation was of such a stigmatizing nature that it virtually
‘foreclosed his freedom to take advantage of other em-
ployment opportunities.’ ” Leese v. Baltimore County, 64
Md. App. 442, 460-61 (1985) (citations omitted).
In determining whether a stigmatizing dismissal has occurred,
courts focus on whether the grounds for termination impute some
sort of “dishonesty, immorality, pressure to drop criminal charges,
intoxication and the like.” Smith v. Board ofEduc., 708 F.2d 258,
266 n. 6 (7th Cir. 1983). The termination of an employee on charges
of drug abuse might well fall into this category. Jones v. McKenzie,
628 F.Supp. at 1505. To be actionable, the charges must be unsup-
ported or false; however, allegedly inaccurate results or unreliable
tests would probably satisfy this element. See Part V C 2 below.

Gen. 58] 81

Moreover, although the State would certainly not “publish” its
drug abuse findings in the sense of making affirmative efforts to
make them known, even the prospect of disclosure to prospective
future employers presents a legal risk. Jones v. McKenzie, 626
F.Supp. at 1505 (“unless expunged, the rationale for ... termination
will remain in ... file for automatic publication to any prospective
employer”). See also Hester v. Milledgeville, 598 F.Supp. 1456,
1473 (M.D. Ga. 1984) affd in part and rev’d in part on other
grounds, 111 F.2d 1492 (11th Cir. 1986).
Accordingly, certain safeguards are necessary. First, discharge
for illegal drug use should not itself serve to foreclose future em-
ployment with the State, if the terminated employee stops using
drugs. Cf. Kindem v. City of Alameda, 502 F.Supp. at 1113 (“abso-
lute foreclosure” of opportunity for ex-felons to work for city im-
pairs liberty interest).33 Second, to avoid legal risk, drug abuse, find-
ings should not be disclosed to prospective employers.34
Comparable safeguards are necessary to protect the liberty in-
terest of job applicants turned down because of drug abuse. See
67 Opinions of the Attorney General at 327.

B. Property
As the United States Supreme Court recently reaffirmed,
“[pjroperty interests are not created by the Constitution, they are
created and their dimensions are defined by existing rules or under-
standings that stem from an independent source such as state
law.’ ” Cleveland Bd. of Edue. v. Loudermill, 470 U.S. 532, 538
(1985) (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)).
In 70 Opinions of the Attorney General 151 (1985), we exam-
ined whether the various categories of State employees “have a
property interest in their employment.” We concluded that all clas-
sified employees, including permanent part-time employees, “clear-
ly have a property right in their employment.” 70 Opinions of the

33
A voiding “absolute foreclosure” does not mean that a criminal record or other evi-
dence of past illegal drug use must be ignored. See generally 71 Opinions of the
Attorney General 242 (1986).
34
The employee’s personnel file, showing the reason for termination, is generally
protected from disclosure, except as otherwise authorized by law. SG §10-616(h).
A neutral reference (including the employee’s name, dates of employment, and posi-
tions held) poses little risk, for the mere fact of nonretention “would hardly estab-
lish the kind of foreclosure of opportunities amounting to a deprivation of ‘liberty.’ ”
Board of Regents v. Roth, 408 U.S. at 574 n. 13.

82 [71 Op. Att’y

Attorney General at 156. However, contractual, probationary, and
unclassified employees do not have sufficient property interests to
invoke due process protections (although they might have certain
protections flowing from contract or regulation). 70 Opinions of
the Attorney General at 157-59.
Moreover, applicants have no property interest in a possible job.
67 Opinions of the Attorney General at 327.

C. Procedural Due Process Requirements

 1. Notice and hearing

Because State employees within the classified service have a con-
stitutionally protected property interest in their employment, they
are entitled to certain procedural due process protections. As we
recently summarized: “[D]ue process requires that, before termi-
nation, the employee be given oral or written notice of the charges
against him, an explanation of the employer’s evidence, and an op-
portunity to present, in person or in writing, reasons why the pro-
posed action should not be taken.” 70 Opinions of the Attorney
General at 156 (emphasis in original). See Cleveland Bd. of Educ.
v. Loudermill, 470 U.S. at 546. We further concluded that the
State’s current procedures for terminating classified employees
satisfy these due process requirements. 70 Opinions of the Attor-
ney General at 157. These procedures would be applicable to the
proposed termination of a classified employee for illicit drug use.35

2. Test accuracy
   The elements of the basic due process balancing test are as fol-
   lows:
   “[identification of the specific dictates of due process
   generally requires consideration of three distinct factors:
   First, the private interest that will be affected by the offi-
   cial action; second, the risk of an erroneous deprivation
   of such interest through the procedures used, and the

35The termination of a probationary or unclassified employee, though not con-
strained by comparable due process requirements, must be undertaken in accor-
dance with the procedures required by regulation. See 70 Opinions of the Attorney
General at 158-59.

Gen. 58] 83

probable value, if any, of additional or substitute proce-
dural safeguards; and finally, the Government’s interest,
including the function involved and the fiscal and adminis-
trative burdens that the additional or substitute procedur-
al requirement would entail.” Mathews v. Eldridge, 424
U.S. 319, 335 (1976).

The notice and hearing procedures available to classified employ-
ees generally satisfy due process, under this test. See Part V C 1
above. But the flexible character of due process “calls for such pro-
cedural protections as the particular situation demands.” Mor-
rissey v. Brewer, 408 U.S. 471, 481 (1972). The “particular situa-
tion” here—loss of one’s job because of drug use—involves a very
significant private interest. Hence, the procedures surrounding
drug testing must guard against an erroneous deprivation of that
interest.
We cannot set out, in the abstract, what these procedures ought
to be. Rather, the particular testing procedures for an agency
should be embodied in detailed standards. For example, the chain
of custody for each specimen must be documented. In addition, the
pertinent regulations should clearly identify who has authority to
order testing.36
Moreover, the testing protocol must be sufficiently reliable so
that there is only an insignificant risk of a “false positive”—a find-
ing that the person has used illegal drugs when in fact he or she
has not done so. To be sure, “due process is not synonymous with
a requirement of scientific exactitude or error-free procedures.”
Peranzo v. Coughlin, 608 F.Supp. 1504, 1507 (S.D.N.Y. 1985) (re-
fusing to preliminarily enjoin use of a particular drug testing de-
vice as the sole basis for disciplinary action against prison in-
mates).37 See generally Walters v. National Ass’n of Radiation

36“A fundamental problem with the [Department of Corrections’] policy is that it
lacks any standards whatsoever for its implementation. Who can authorize or make
a search or a demand for a blood or urine sample? Without any standards, it appears
that any institutional officer may authorize or make a search or demand for blood
or urine at his or her own unfettered discretion, and that the procedures followed
will be another matter within the unfettered discretion of the officer implementing
the Department’s policy.” McDonell v. Hunter, 612 F.Supp. at 1128 n. 4.
37
At issue in Peranzo was the reliability of the EMIT test, a commonly used urine
testing apparatus. See Warning of Drug Test Inaccuracies, 122 Lab. Rel. Rep.
(BNA) 179, 180 (July 14, 1986) (EMIT test “picks up chemical compounds similar
to those contained in many illegal drugs and thus yields fairly frequent ‘false posi-
tive’ results,” according to one expert). See also note 38 below.

84 [71 Op. Att’y

Survivors, 473 U.S. 305, 320 (1985). But it is essential that positive
initial test results be confirmed reliably. Cf. Jones v. McKenzie,
628 F.Supp. at 1505-07 (termination of employee on the basis of a
single unconfirmed positive result was arbitrary and capricious).38

                                        VI
                   Federal Statutory Requirements

Section 504 of the Rehabilitation Act of 1973 generally prohibits

employment and other discrimination against an “otherwise quali-
fied handicapped individual” in “any program or activity receiving
Federal financial assistance.” 29 U.S.C. §7941. A handicapped indi-
vidual is defined under 29 U.S.C. §706(7)(B) as “any person who:
(i) has a physical or mental impairment which substantially limits
one or more of such person’s major life activities, (ii) has a record
of such an impairment, or (iii) is regarded as having such an impair-
ment.” A 1978 amendment added to this definition a specific refer-
ence to alcoholism and drug abuse:
“For purposes of [provisions relating to employment of
the handicapped], such term does not include any individu-
al who is an alcoholic or drug abuser whose current use
of alcohol or drugs prevents such individual from per-
forming the duties of the job in question or whose employ-
ment, by reason of such current alcohol or drug abuse,
would constitute a direct threat to property or the safety
of others.” 29 U.S.C. §706(7)(B).39

38
There is controversy over the precise methodology to be followed in confirming
an initial finding of drug use. See Wykoffv. Resig, 613 F.Supp. 1504,1508-12 (N.D.
Ind. 1985) (reviewing cases). Whatever the proper methodology, the need for care
in the conduct of laboratory testing is obvious:
“Questions respecting the reliability of laboratory screening of uri-
nalysis samples have been raised, resulting in an order by the Surgeon
General of the Navy that six thousand samples be retested .... When
it found that positive laboratory results were erroneous, [the] Navy
corrected personnel records and reversed disciplinary actions.” Wil-
liams v. Secretary of the Navy, 787 F.2d 552, 560 n. 12 (Fed. Cir. 1986).
39
A violation of this prohibition could result in termination of the federal assistance.
See 29 U.S.C. §794a; 42 U.S.C. §2000 d-1. The Act also permits private actions
against states for alleged discrimination in programs that receive federal aid. Con-
solidated Rail Corp. v. Darrone, 465 U.S. 624 (1984).

Gen. 58] 85

This language was intended as much to protect some drug abus-
ers as to exclude others from the Act: “[0]nly those active alcohol-
ics or drug abusers who cannot perform the essential functions of
a job in question or who present a danger to life and property are
not covered by the employment provisions of sections 503 and 504.”
H.R. Rep. No. 95-1780, 2d. Sess. 102 (1978), reprinted in 1978 U.S.
Code Cong. & Adm. News 7413. See Simpson v. Reynolds Metals
Co., 629 F.2d 1226, 1231 n. 7 (7th Cir. 1980).40
Our prior opinion concluded that an “across-the-board bar to the
employment of drug abusers” would conflict with Section 504 of
the Act. 67 Opinions of the Attorney General at 332. However,
we stated that the Secretary “would not be precluded from deter-
mining that an applicant’s drug abuse would prevent the applicant
from ‘perform[ing] the essential function of [the] job in question
or [would] present a danger to life and property,’ ” and, hence, that
the applicant would not be an “otherwise qualified handicapped”
individual within the meaning of Section 504. We also noted that
the Secretary could “make this determination either on a position-
by-position basis or on an individual applicant basis.” Id.
Although our prior opinion addressed the effect of the Rehabili-
tation Act on applicants, we believe that the same conclusions apply
to individuals currently employed in State government. In particu-
lar, employees whose current drug abuse presents a risk to public
safety are patently not “otherwise qualified handicapped individu-
als” within the meaning of the Act. See, e.g., McCleod v. City of
Detroit, 39 Fair Empl. Prac. Cas. (BNA) 225 (E.D.Mich. 1985).
Thus, discharge of drug abusers from service as correctional offi-
cers would not violate the Act.

                                    VII
                               Conclusion

In summary, it is our opinion that:

1. Mandatory testing of most categories of State employees
   would violate the Fourth Amendment prohibition against “unrea-

40
By contrast, the various statutes that specify the obligations of the State toward
its handicapped employees are not applicable at all in the case of an employee who
is an abuser of drugs. 68 Opinions of the Attorney General 322, 323 (1983); 67
Opinions of the Attorney General at 331 (1982); 63 Opinions of the Attorney Gen-
eral 408, 413 (1978).

86 [71 Op. Att’y

sonable searches and seizures.” The testing of such an employee
is permissible only if based upon particularized probable cause, the
traditional prerequisite to a search or seizure. In addition, termina-
tion of an employee solely because the testing indicates current
drug abuse would violate the federal Rehabilitation Act of 1973.

2. Mandatory testing of employees whose work is directly related
   to public safety is also unconstitutional unless certain Fourth
   Amendment safeguards are followed. Drug testing of these em-
   ployees for no reason other than the nature of their jobs is not per-
   missible. However, there is no constitutional or other legal bar to
   mandatory testing of these employees where circumstances give
   the employing agency a reasonable, objective basis to suspect illicit
   drug use. Therefore, under this somewhat more relaxed standard
   than probable cause, testing of correctional officers and other pub-
   lic safety employees, and termination of those who are found to
   be drug abusers, would be legally permissible.
3. Each applicant for a position may be tested only if, as to that
   particular position, drug abuse would likely make the applicant un-
   able to perform the duties of the job or would likely present a dan-
   ger to the public or to property. Likewise, the State may refuse
   to hire, for such a position, an applicant who is shown by testing
   to be a drug abuser.
4. Testing of all applicants for positions as correctional officers,
   and like public safety jobs, and refusing to hire those who test posi-
   tive for drug abuse would be legally permissible.
5. Any testing program must include reasonable steps to confirm
   that a positive result is accurate and to assure that specimens are
   not tampered with or switched. Test results must be secured
   against unauthorized disclosure. In addition, the termination of a
   classified employee for drug abuse must be preceded by notice and
   an opportunity for a hearing.

       Stephen H. Sachs
       Attorney General
       Jack Schwartz
       Chief Counsel
         Opinions and Advice
       Gail Smith
       Assistant Attorney General