After the Supreme Court's 1989 drug-testing rulings, could Maryland test state employees for drugs without any individual suspicion?

Plain-English summary

Maryland's Secretary of Personnel asked the Attorney General, in May 1989, whether two U.S. Supreme Court decisions issued that March, Skinner v. Railway Labor Executives' Ass'n and National Treasury Employees Union v. Von Raab, changed a 1986 AG opinion that had said no state employee could be drug-tested without at least a reasonable, individualized suspicion of drug use. The Attorney General concluded that part of the 1986 opinion no longer held up: the Supreme Court's decisions allowed testing without individualized suspicion for employees in specifically sensitive positions, such as those who carry firearms, work directly to interdict narcotics, or whose impaired job performance could cause death or serious injury to others (like vehicle operators). But the opinion drew a firm line: nothing in the Supreme Court's decisions supported testing the general state workforce without individualized suspicion, and the Department of Personnel's existing procedural safeguards, like avoiding direct observation during sample collection, still had to stay in place.

Currency note

This opinion was issued in May 1989, about two months after the Supreme Court decided Skinner v. Railway Labor Executives' Ass'n and National Treasury Employees Union v. Von Raab, and it applied those decisions to the Fourth Amendment framework as it stood at that time, including the Maryland Department of Personnel's drug testing regulations then in effect under COMAR 06.01.09. Fourth Amendment doctrine on workplace drug testing, and the Department of Personnel's own regulations, have had decades to develop since 1989. This page is a historical record of how the Attorney General read two brand-new Supreme Court decisions and applied them to Maryland's program at the time. It describes what the opinion concluded then and is not a statement of current Maryland personnel law or current Fourth Amendment doctrine. Verify current law and current Department of Personnel regulations directly before relying on anything here.

Common questions

Did the Supreme Court's 1989 drug-testing decisions let Maryland test any state employee without suspicion? No. The opinion concluded that only employees in specifically sensitive positions, such as firearm carriers, employees directly involved in interdicting narcotics, or employees whose substance-impaired conduct could cause death or serious injury to others, could be tested without individualized suspicion; testing the general state workforce without suspicion remained unconstitutional.

Did the Supreme Court require Maryland to show an actual drug problem before testing employees without suspicion? Not for employees in sensitive positions. The opinion explained that the Supreme Court upheld the federal testing programs in both cases based on the government's compelling safety and law-enforcement interests in those specific job categories, not on proof of a demonstrated drug problem among those particular employees.

Was random drug testing treated differently from tested-after-an-incident (categorical) testing under this opinion? No. The opinion found no constitutionally significant difference between categorical testing (testing everyone in a job category after a triggering event) and random testing, concluding that the key question was simply whether individualized suspicion could be dispensed with at all for a given job category.

Did this 1989 opinion say Maryland's testing procedures also had to protect employee privacy, not just decide who could be tested? Yes. The opinion stressed that both Supreme Court decisions emphasized minimizing intrusion, for example by avoiding direct observation of urine collection, and recommended the state program continue to be administered in the least intrusive way the regulations allowed.

Background and statutory framework

The opinion analyzed two companion U.S. Supreme Court decisions issued in March 1989. Skinner v. Railway Labor Executives' Ass'n upheld federal regulations, 49 C.F.R. §219.201 and §219.301, requiring railroad train crews to be tested for drugs and alcohol after certain accidents or safety-rule violations, reversing a Ninth Circuit decision that had required individualized suspicion. National Treasury Employees Union v. Von Raab upheld the Customs Service's program of testing employees who sought transfer to jobs directly involved in drug interdiction or requiring firearms, though the Court did not resolve the constitutionality of testing employees merely because their jobs involved handling classified material. Both decisions applied a balancing test weighing the intrusion on the employee's privacy against the government's interest in testing without individualized suspicion, and both found that employees in these specific job categories had diminished privacy expectations that were outweighed by compelling safety or law-enforcement interests.

Applying these decisions to Maryland, the opinion revisited a 1986 Attorney General opinion, 71 Opinions of the Attorney General 58 (1986), which had concluded that no state employee could be drug-tested without at least a reasonable, objective basis to suspect illicit drug use, a conclusion the Department of Personnel's regulations under COMAR 06.01.09 had followed. The opinion concluded that this categorical rule no longer held for employees in positions identical or indistinguishably similar to those the Supreme Court had approved for suspicionless testing: employees required to carry a firearm, employees such as correctional officers directly involved in interdicting narcotics in state institutions, any employee involved in narcotics law enforcement, and any employee, such as a vehicle operator, whose substance-impaired conduct on the job could cause death or serious injury to others, a category the Department of Personnel's regulations defined as a "sensitive classification." The opinion found no constitutional difference between random and categorical (after-an-incident) testing of these employees. Outside those categories, the opinion found nothing in the Supreme Court's decisions supporting suspicionless testing of the general state workforce, and it recommended the state continue to minimize the intrusiveness of its collection procedures, such as by avoiding direct observation, consistent with the Department of Personnel's existing regulations.

Citations and references

Statutes and regulations:

• 49 C.F.R. §219.201 and §219.301, the federal railroad drug and alcohol testing regulations at issue in Skinner
• COMAR 06.01.09.018(6) and COMAR 06.01.09.04A, the Department of Personnel regulations the opinion cited as already requiring individualized suspicion under the 1986 opinion's stricture
• COMAR 06.01.09.016(5), defining the "sensitive classification" of employees whose substance-impaired job performance could cause death or serious injury to others
• COMAR 06.01.09.05, .07, .09, and .11, the Department of Personnel's procedural safeguards for administering drug tests
• COMAR 06.01.09.05A, the specific regulation requiring controlled urine specimen collection to preserve integrity

Cases:

• Skinner v. Railway Labor Executives' Ass'n, 109 S.Ct. 1402 (1989), the Supreme Court decision upholding federal railroad drug and alcohol testing regulations without individualized suspicion
• National Treasury Employees Union v. VonRaab, 109 S.Ct. 1384 (1989), the companion decision upholding suspicionless testing of Customs Service employees in drug-interdiction and firearm-carrying positions
• Delaware v. Prouse, 440 U.S. 648, 654 (1979), cited for the balancing test weighing intrusion on Fourth Amendment interests against governmental interests
• 839 F.2d 575 (1988), the Ninth Circuit decision requiring individualized suspicion that the Supreme Court reversed in Skinner
• Transport Workers' Union of Philadelphia, Local 234 v. Southeastern Pennsylvania Transportation Authority, 863 F.2d 1110 (3rd Cir. 1988), Policeman's Benevolent Association of New Jersey v. Washington Township, 850 F.2d 135 (3rd Cir. 1988), McDonell v. Hunter, 809 F.2d 1302 (8th Cir. 1987), and Caruso v. Ward, 72 N.Y.2d 432, 534 N.Y.S.2d 142 (1988), cited as cases eroding the individualized-suspicion rule before Skinner and Von Raab were decided

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/1989/Volume74_1989.pdf (this opinion appears at printed pages 102-111 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Constitutional Law - Personnel - Drug Testing - Fourth Amendment - Effect Of Recent Supreme Court Decisions

May 5, 1989

The Honorable Hilda E. Ford
Secretary of Personnel

You have requested our opinion concerning the effect of the two recent Supreme Court decisions on government-ordered drug testing, Skinner v. Railway Labor Executives' Ass'n, 109 S.Ct. 1402 (1989) and National Treasury Employees Union v. VonRaab, 109 S.Ct. 1384 (1989). Specifically, you ask whether these cases mean that the 1986 opinion of the Attorney General on drug testing of State employees, 71 Opinions of the Attorney General 58 (1986), is no longer valid.

For the reasons stated below, we conclude as follows:

One important conclusion in the 1986 opinion - that no State employee may be required to submit to drug testing without at least reasonable suspicion of that employee's drug abuse - is no longer valid. Applying the Supreme Court's cases, we advise that employees holding certain especially sensitive positions may be made subject to drug testing without individualized suspicion. The testing may be either categorical (that is, all employees holding a sensitive position are tested) or random (that is, all employees holding a sensitive position have an equal chance of being tested, but only a sample are chosen).

In other respects, the conclusions of the 1986 opinion remain valid.
The United States Constitution does not permit suspicionless testing of State employees generally. It also requires various procedural safeguards, like those contained in the Department of Personnel's current drug testing program.

I

Railway Labor Executives

This case involved the constitutionality of federal regulations addressing the problem of alcohol and drug abuse by railroad employees. The regulations require that the members of a train crew involved in certain kinds of accidents are to be tested for the presence of alcohol and drugs. 49 C.F.R. §219.201. Another part of the regulations authorizes railroads to require testing with reasonable suspicion or after specified events, primarily breaches of safety rules. 49 C.F.R. §219.301.

The labor unions representing the employees subject to the testing program asserted that these regulations violated the Fourth Amendment to the United States Constitution, which prohibits "unreasonable searches and seizures." The unions prevailed in the Court of Appeals for the Ninth Circuit, which held that the regulations were unconstitutional. The Ninth Circuit concluded (just as this office had in the 1986 opinion) that the Fourth Amendment required a showing of some "particularized suspicion" before an employee could be tested. 839 F.2d 575 (1988).

The Supreme Court reversed. It held that the regulations "are reasonable within the meaning of the Fourth Amendment." 109 S.Ct. at 1422.

As a threshold matter, the Court held that, "[b]ecause it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, ... these intrusions must be deemed searches under the Fourth Amendment." 109 S.Ct. at 1413. As the Court went on to point out, however:

To hold that the Fourth Amendment is applicable to the drug and alcohol testing prescribed by the [federal] regulations is only to begin the inquiry into the standards governing such intrusions. For the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable....
Thus, the permissibility of a particular practice "is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."

109 S.Ct. at 1413-14 (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979), other citations omitted).

The crux of the issue before the Court was whether an employee might constitutionally be compelled to submit to testing despite the absence of any suspicion that the particular employee had used drugs or alcohol.1 Although at least individualized suspicion is ordinarily necessary to comport with the Fourth Amendment, "[i]n limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion." 109 S.Ct. at 1417.

Looking at the privacy side of the balancing test, the Court concluded "that the [urine] testing procedures ... pose only limited threats to the justifiable expectations of privacy of covered employees." 109 S.Ct. at 1419.2 Two important factors enabled the Court to reach this conclusion. First, the procedures for collection of urine samples sought to minimize the invasion of an employee's privacy. There was no direct observation, and the sample was collected "in a medical environment, by personnel unrelated to the railroad employer, and is thus is not unlike similar procedures encountered often in the context of a regular physical examination." 109 S.Ct. at 1418.

"More importantly," the Court went on, "the expectations of privacy of covered employees are diminished by reason of their participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees." Id. Because the employees subject to the testing requirements "have long been a principal focus of regulatory

1
The Court dismissed as impracticable the contention that the testing could be done only upon issuance of a warrant supported by probable cause, the Fourth Amendment requirement for criminal law enforcement. 109 S.Ct. at 1416.
2
The Court found that the blood and breath testing also authorized by the regulations does not amount to a significant intrusion upon employee privacy. 109 S.Ct. at 1417-18.

concern," these employees were reasonably subject to "a diminished expectation of privacy." 109 S.Ct. at 1419.

On the other side of the balance, the Court found that "the government interest in testing without a showing of individualized suspicion is compelling." Id. The Court emphasized the risk to safety that drug or alcohol impairment by these employees would cause:

Employees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disasterous consequences. Much like persons who have routine access to dangerous nuclear power facilities, ... employees who are subject to testing under the [federal] regulations can cause great human loss before any signs of impairment become noticable to supervisors or others.

Id. (citations omitted). Moreover, the Court continued, the testing procedure was necessary to reinforce other sanctions against the use of drugs or alcohol while on duty: "By ensuring that employees in safety- sensitive positions know they will be tested upon the occurrence of a triggering event, the timing of which no employee can predict with certainty, the regulations significantly increase the deterrent effect of the administrative penalties associated with the prohibited conduct, ... concomitantly increasing the likelihood that employees will forgo using drugs or alcohol while subject to being called for duty." 109 S.Ct. at 1420 (citation omitted).3

3 The Court also pointed out the importance of testing to enable investigators to determine the cause of an accident. 109 S.Ct. at 1420-21. Justice Stevens concurred only in this part of the Court's analysis; he did not agree with the Court's conclusion that the testing program served to deter drug and alcohol abuse. 109 S.Ct. at 1422.
Justices Marshall and Brennan dissented: "The majority's concern with the railroad safety problems caused by drug and alcohol abuse is laudable; its cavalier disregard for the text of the Constitution is not. There is no drug exception to the Constitution, any more than there is a communism exception or an exception for other real or imagined sources of domestic unrest." 109 S.Ct. at 1426.

II

Treasury Employees

This companion case involved the drug testing program of the United States Customs Service. One important responsibility of the Customs Service is to interdict illegal drugs that traffickers seek to import into the United States.

The program required testing of a urine sample from any employee who sought to transfer to any of three types of jobs within the Customs Service: those directly involved in drug interdiction, those requiring that the employee carry firearms, and those requiring the employee to handle "classified" material. See 109 S.Ct. at 1388. Prior to being selected for any of these positions, the employee must produce a urine sample in the presence of (although not within sight of) a monitor hired by the Customs Service. "Customs employees who test positive for drugs and who can offer no satisfactory explanation are subject to dismissal from the service." 109 S.Ct. at 1389. However, the test results are not available for use in criminal prosecutions. Id.

Applying the same kind of balancing test that it set out in Railway Labor Executives, the Supreme Court sustained the Customs Services' testing program for employees engaged directly in drug interdiction and employees who are required to carry firearms. It did not decide the constitutionality of testing requirements for employees who have access to classified information. 109 S.Ct. at 1390.

On the privacy side of the balancing test, the Court wrote:

We think Customs employees who are directly involved in the interdiction of illegal drugs or who are required to carry firearms in the line of duty ... have a diminished expectation of privacy in respect to the intrusions occasioned by a urine test. Unlike most private citizens or government employees in general, employees involved in drug interdiction reasonably should expect effective inquiry into their fitness and probity. Much the same is true of employees who are required to carry firearms. Because successful performance of their duties depends uniquely on their judgment and dexterity, these employees cannot reasonably expect to keep from the [Customs] Service personal information that bears directly on their fitness.

109 S.Ct. at 1394.

These diminished expectations of privacy, the Court held, are outweighed by "the Government's compelling interests in safety and in the integrity of our borders." Id. The Court thought it obvious that the Customs Service was entitled to find out who among its interdiction officers used drugs, for "[a] drug user's indifference to the Service's basic mission or, even worse, his active complicity with the malefactors, can facilitate importation of sizable drug shipments or block apprehension of dangerous criminals." 109 S.Ct. at 1393. In addition, the Customs Service has a compelling interest in seeing to it that "the public should not bear the risk that employees who may suffer from impaired perception and judgment will be promoted to positions where they may need to employ deadly force." Id.

By contrast, the Court was "unable, on the present record, to assess the reasonableness of the Government's testing program insofar as it covers employees who are required 'to handle classified material.'" 109 S.Ct. at 1396. The Court's problem, it appears, is that the broad sweep of the category "classified material" might lead to the testing of employees who, the Court apparently believes, do not in truth have access to genuinely "sensitive information."

On the one hand, according to the Court, "employees who seek promotions to positions where they would handle sensitive information can be required to submit to a urine test under the Service's screening program, especially if the positions covered under this category require background investigations, medical examinations, or other intrusions that may be expected to diminish [the employees'] expectations of privacy in respect of a urinalysis test." 109 S.Ct. at 1397. On the other hand, the Court could not tell "whether the category defined by the Service's testing directive encompasses only those Customs employees likely to gain access to sensitive information." Id.4 The

4
The Court noted that employees subject to testing "include those holding such diverse positions as 'Accountant,' 'Accounting Technician,' 'Animal Caretaker,' 'Attorney (All),' 'Baggage Clerk,' 'Co-op Student (All),' 'Electric Equipment Repairer,' 'Mail Clerk/Assistant,' and 'Messenger,'" all of whom were covered presumably because they had access to classified information. 109 S.Ct. at 1397.

Court remanded so that the lower court could "examine the criteria used by the Service in determining what materials are classified and deciding whom to test under this rubric." Id.5

III

Implications For Maryland's Drug Testing Program

In some respects, the Supreme Court's decisions have changed the legal ground rules under which the State fashioned its drug testing program.6 In other respects, the constitutional restrictions identified in this office's 1986 opinion remain unchanged.

We begin with the changes. In the 1986 opinion, the Attorney General analyzed the then-current body of case law and concluded that no employee, not even one engaged in a job related to public safety, could be subjected to mandatory testing without "a reasonable, objective basis to suspect illicit drug use." 71 Opinions of the Attorney General at 59. The Department of Personnel's current drug testing program adheres to this stricture. See COMAR 06.01.09.018(6) and 06.01.09.04A.

5
Justice Scalia, who had joined in the Court's opinion in Railway Labor Executives, dissented in this case. In Justice Scalia's view, a government-ordered testing program without individualized suspicion can be justified only if there is demonstrated evidence of a problem of substance abuse. Because there was no such demonstrated problem regarding drug use by Customs Service employees - indeed, the Customs Service denied that it had a drug problem - Justice Scalia thought that the program was intended to serve merely symbolic purposes: "I think it obvious that this justification is unacceptable; that the impairment of individual liberties cannot be the means of making a point; that symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search." 109 S.Ct. at 1401. Justice Stevens concurred with Justice Scalia's dissent. Justice Marshall, with Justice Brennan concurring, dissented for the same reasons as in Railway Labor Executives. 109 S.Ct. at 1398.
6
Drug testing regulations were proposed on June 17, 1988. 15:13 Md. Reg.
1559. The program became effective on January 9, 1989. 15:27 Md. Reg. 3126 (Dec. 30, 1988).

This interpretation of the Fourth Amendment was the better view

of the law in 1986. However, later cases eroded it.7 Now the Supreme Court has determined that some categories of employees may be subject to drug testing without individualized suspicion.

In both of the Supreme Court's cases, the testing program in

question was categorical, rather than random. That is, all train crew employees were tested if there was an accident. All Customs Service employees seeking particular jobs were tested. However, we discern no constitutionally significant difference between categorical testing and random testing. The determinative point is that testing without individualized suspicion is constitutionally permissible, under some circumstances. That the methodology of a testing program is random rather than categorical makes no difference, in our view.8

 In the State's service, we can identify the following types of jobs

that are either identical to, or indistinguishably similar to, the positions for which the Supreme Court approved suspicionless testing:

        (1) employees required to carry a firearm;

        (2) employees, such as correctional officers, who
     are directly involved in efforts to interdict the flow of
     narcotics into State institutions;

       (3) any employee, whether or not the employee
     carries a firearm, who is involved with narcotics law
     enforcement;

        (4) any employee whose on-the-job behavior, if
     affected by substance abuse, could cause death or

 7
   See Transport Workers' Union of Philadelphia, Local 234 v. Southeastern

Pennsylvania Transportation Authority, 863 F.2d 1110 (3rd Cir. 1988); Policeman's Benevolent Association of New Jersey v. Washington Township, 850 F.2d 135 (3rd Cir. 1988); McDonell v. Hunter, 809 F.2d 1302 (8th Cir. 1987); Caruso v. Ward, 72 N.Y.2d 432, 534 N.Y.S.2d 142 (1988).
8
A program that allowed improper motives to enter the decision about the
employees subject to testing would be improper. Treasury Employees, 109 S.Ct. at 1394 n. 2.

        serious injury to other persons - for example, vehicle
        operators.9

The last category is defined in the Department of Personnel's drug testing program as a "sensitive classification." COMAR 06.01.09.016(5).

At the same time, there is nothing in the Supreme Court's decisions to suggest that employees outside of these job categories may be subject to drug testing without individualized suspicion. The Court was careful to note that its discussion of diminished privacy and compelling government interest turned on the special sensitivity of these positions, "[u]nlike most private citizens or government employees in general ...." Treasury Employees, 109 S.Ct. at 1394. Indeed, the Court's reluctance to approve drug testing of Customs Service employees who were subject to testing merely because they might have access to classified information suggests that no Court majority would now support a blanket program of suspicionless drug testing.10

Both of the Supreme Court's decisions also emphasized the government's obligation to design the program with as minimal an intrusion into the employee's privacy as possible. For instance, neither program involved direct observation of the act of urination. The current Maryland program likewise can be administered to avoid needless embarrassment of those tested.11

Finally, the 1986 opinion emphasized the importance of proper procedures in any drug testing program. The Department of Personnel's program adopts such careful procedures. See COMAR 06.01.09.05, .07, .09, and .11. Nothing in the Supreme Court's

9
We are referring here to employees who drive a vehicle during a substantial portion of their work day. We are not referring to State employees who might occasionally drive a State or personal vehicle on State business.
10
See note 4 above and accompanying text.
11
COMAR 06.01.09.05A provides as follows: "The appointing authority shall assure that all aspects of urine specimen collection are controlled to insure integrity of the specimen. This includes either observation as the specimen is provided or methods to preclude adulteration." The Customs Service program incorporates "methods to preclude adulteration" that make direct observation unnecessary. See Treasury Employees, 109 S.Ct. at 1388. We recommend that the State program be administered in this comparatively less intrusive way.

decisions counsels any relaxation in this regard. To the contrary, part of the Court's rationale in sustaining major parts of the Customs Service program was that the testing protocols were carefully conceived and the test results were likely to be highly accurate. Treasury Employees, 109 S.Ct. at 1394 n.2.

IV

Conclusion

In summary, it is our opinion that, under the interpretation of the Fourth Amendment in the recent Supreme Court cases, the Department of Personnel may modify its drug testing program to authorize testing of State employees in sensitive positions even without individualized suspicion. It may not, however, expand such a testing program to State employees generally. Moreover, the Department should retain the procedural protections in its current program.

J. Joseph Curran, Jr.
Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice