Can Tennessee require workers' comp pain-management recipients to agree to random drug testing as a condition of treatment?

Subject

Opinion No. 12-47, Drug Testing Workers' Compensation Recipients/Retroactive Laws, April 17, 2012

Plain-English summary

In 2012, the Tennessee General Assembly was considering SB3315/HB3372, a bill that would have required workers' compensation recipients on pain-management treatment to sign an agreement promising to submit to "at least annual random drug testing." Refusing to sign or violating the agreement would have ended the recipient's right to pain treatment, would have been treated as misconduct under Tenn. Code Ann. § 50-6-241(d), and could have affected entitlement to permanent total disability benefits under § 50-6-207(4). Senator Jack Johnson and Representative Mark White asked the AG whether that requirement, and a related question about applying the bill's remaining provisions to people injured before its enactment, would survive constitutional review.

The AG concluded that the random-drug-testing condition was constitutionally suspect. State-mandated urine testing is a Fourth Amendment search under Skinner v. Railway Labor Executives' Ass'n (1989) and Von Raab (1989). Without individualized suspicion or a "special governmental need," such suspicionless searches are presumptively unreasonable. The AG found no special-need justification specific to injured workers as a group, and pointed to the Ohio Supreme Court's similar ruling against blanket workers'-comp drug testing in State ex rel. Ohio AFL-CIO v. Ohio Bureau of Workers' Comp. (2002). The AG also relied on its own prior opinion 12-45, which had reached the same conclusion about drug testing welfare recipients, citing the doctrine of unconstitutional conditions from Perry v. Sindermann.

The retroactive-application question was different. The bill's remaining provisions changed the process for delivering pain management, not the benefits themselves. The AG treated those as remedial procedural changes, which under Tennessee case law generally do not impair vested rights and may be applied to existing claimants.

Currency note

This opinion was issued in 2012. 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.

Historical background and statutory framework

The bill and its consequences

SB3315 sought to "ensure the availability of quality medical care services for injured and disabled employees and to manage medical costs in workers' compensation matters by eradicating prescription drug abuse." Its core mechanism: a recipient receiving pain-management care had to sign a written agreement with the treating physician committing to at least annual random drug testing at a certified laboratory "for the purpose of identifying abuse or diversion of such substances." Refusal or violation ended the right to pain-management treatment, was deemed misconduct under § 50-6-241(d), and could reduce permanent total disability benefits under § 50-6-207(4).

Fourth Amendment framework

The Fourth Amendment protects against unreasonable searches and seizures, applies to the states through the Fourteenth Amendment (Mapp v. Ohio), and Tenn. Const. art. I, § 7 was treated as "identical in intent and purpose" by the Tennessee Supreme Court in Sneed v. State (1968). The U.S. Supreme Court held in Skinner that government-required urine collection and testing is a search. Such testing generally must rest on probable cause or individualized suspicion (Chandler v. Miller).

A narrow exception exists where a "special governmental need, beyond the normal need for law enforcement" makes the warrant and probable-cause requirements impractical. Examples include "safety sensitive" positions where a momentary lapse can have catastrophic consequences (Skinner). Courts apply this through a "context-specific inquiry, examining closely the competing private and public interests advanced by the parties" (Chandler at 314).

Why SB3315 failed the special-needs test

The AG identified two problems. First, injured workers receiving pain medication are not "as a group involved in inherently dangerous activity." Receipt of pain medication for a work injury does not by itself suggest a greater predilection toward abuse or diversion than is found among all patients on similar medication. Second, the same logic that led the Sixth Circuit in Marchwinski v. Howard to require individualized suspicion before drug-testing welfare recipients applies equally to workers' compensation recipients.

The AG quoted the Ohio Supreme Court's reasoning in State ex rel. Ohio AFL-CIO v. Ohio Bureau of Workers' Comp. (2002) at length. The Ohio court held that a similar Ohio statute "does not target a group of people with a documented drug and alcohol problem... [n]or does it target a segment of industry where safety issues are more profound." The workers'-comp system is built on compromise: workers give up tort remedies and employers give up some defenses. "Under such a system of compromise for mutual benefit, a worker would not expect to face the indignity of drug and alcohol testing without any suspicion of wrongdoing."

Unconstitutional conditions

The AG closed the constitutional discussion by reiterating that even consensual drug testing tied to benefits is not a workaround. "Exaction of consent to an otherwise unconstitutional search" as a condition of receiving government benefits "would violate the doctrine of unconstitutional conditions" (Perry v. Sindermann; quoted in Lebron v. Wilkins and in Op. Tenn. Att'y Gen. 12-45).

Retroactive application

The Tennessee and U.S. Constitutions prohibit laws that impair vested rights (U.S. Const. art. I, § 10, cl. 1; Tenn. Const. art. I, § 20). But remedial legislation, including changes to the process by which a cause of action is enforced or relief obtained, generally may apply retroactively (In re D.A.H.; Morford v. Yong Kyun Cho). Because the non-drug-testing portions of SB3315 changed the process for delivering pain management rather than the underlying benefits, the AG saw no impairment problem and concluded that those provisions could be applied to recipients injured before enactment.

Common questions

Did the legislature pass SB3315 as originally drafted?

The AG opinion does not say. It addressed the constitutional risk of the bill as written, not the bill's eventual fate. A reader interested in the current state of Tennessee workers' compensation drug-testing rules should consult the current version of Title 50, Chapter 6, of the Tennessee Code and any later AG opinions or court decisions.

Why couldn't the state argue that pain medication recipients are a "safety sensitive" group?

The AG's view was that injured workers on pain medication, considered as a class, are not engaged in inherently dangerous activity, and that the bare fact of receiving prescribed pain medication does not, by itself, signal heightened risk of abuse or diversion compared with the general patient population. Without that link, the "safety sensitive" exception from Skinner did not fit.

Could a private employer require drug testing as a condition of pain management?

The opinion noted in a footnote that the Fourth Amendment governs only government action and does not prohibit a private employer from imposing drug testing as a condition of employment (citing Op. Tenn. Att'y Gen. 89-66). SB3315 was a problem because the state was mandating the testing by law.

Did the AG say the bill could never be drug-tested by the state?

No. The AG said suspicionless, blanket testing of all pain-management recipients failed the special-needs test. Testing based on individualized suspicion of abuse or diversion, or testing of identifiable categories with a documented record of higher abuse risk, would be evaluated under different facts.

What did the AG mean by "remedial" provisions applying retroactively?

Tennessee courts distinguish between legislation that changes a vested right or remedy (which cannot apply retroactively) and legislation that changes the procedure or process for enforcing rights or obtaining relief (which generally can). The pain-management process changes in SB3315 fell on the procedural side, in the AG's view, so applying them to people already injured did not impair anything they were constitutionally entitled to keep.

How is this opinion related to AG opinion 12-45?

Opinion 12-45 reached a parallel conclusion about drug testing welfare recipients. It supplied the doctrinal foundation, particularly the unconstitutional-conditions analysis, that the AG carried forward into 12-47.

Citations

• U.S. Const. amend. IV
• U.S. Const. art. I, § 10, cl. 1
• Tenn. Const. art. I, § 7
• Tenn. Const. art. I, § 20
• Tenn. Code Ann. § 50-6-207(4)
• Tenn. Code Ann. § 50-6-241(d)
• Mapp v. Ohio, 367 U.S. 643 (1961)
• Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989)
• Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)
• Chandler v. Miller, 520 U.S. 305 (1997)
• New Jersey v. T.L.O., 469 U.S. 325 (1985)
• Perry v. Sindermann, 408 U.S. 593 (1972)
• Sneed v. State, 423 S.W.2d 857 (Tenn. 1968)
• State v. Richards, 286 S.W.3d 873 (Tenn. 2009)
• Marchwinski v. Howard, 60 Fed. Appx. 601 (6th Cir. 2003)
• Smith County Educ. Ass'n v. Smith County Bd. of Educ., 781 F. Supp. 2d 604 (M.D. Tenn. 2011)
• Lebron v. Wilkins, 2011 WL 5040993 (M.D. Fla. Oct. 24, 2011)
• State ex rel. Ohio AFL-CIO v. Ohio Bureau of Workers' Comp., 780 N.E.2d 981 (Ohio 2002)
• In re D.A.H., 142 S.W.3d 267 (Tenn. 2004)
• Morford v. Yong Kyun Cho, 732 S.W.2d 617 (Tenn. Ct. App. 1997)
• Op. Tenn. Att'y Gen. 12-45 (April 3, 2012)
• Op. Tenn. Att'y Gen. 12-41 (March 20, 2012)
• Op. Tenn. Att'y Gen. 89-66 (April 28, 1989)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-047.pdf

Original opinion text

Drug Testing Workers' Compensation Recipients/Retroactive Laws

QUESTIONS

1. Does the provision of Senate Bill 3315/House Bill 3372, 107th General Assembly, 2nd Sess. (2012), as amended by Senate Commerce, Labor and Agriculture Committee Amendment No. 1 (also designated as SA1024), (hereinafter "SB3315") requiring workers' compensation recipients receiving pain management treatment to agree in writing to submit to random drug testing violate federal or Tennessee law?

2. If SB3315 is further amended so that its provisions regarding pain management treatment apply to recipients injured prior to the enactment of SB3315, would this retrospective application violate Article 1, § 20 of the Tennessee Constitution or any other provision of the Tennessee or United States Constitution?

OPINIONS

1. A court would most likely find the drug testing provision of SB3315 constitutionally suspect under the Fourth Amendment of the United States Constitution and Article 1, Section 7 of the Tennessee Constitution.

2. Except as stated in response to Question 1, SB3315 may apply its changes in the process by which workers' compensation recipients receive pain management treatment retrospectively to recipients injured prior to the enactment of SB3315. These changes in the process for obtaining pain management treatment are remedial in nature; thus SB3315 would not violate the federal and Tennessee Constitutions' prohibitions against laws that impair vested rights.

ANALYSIS

SB3315 would impose additional requirements on workers' compensation recipients who receive pain management treatment in order "to ensure the availability of quality medical care services for injured and disabled employees and to manage medical costs in workers' compensation matters by eradicating prescription drug abuse." SB3315, § 2. Among other things, SB3315 details the process by which a recipient receives pain management treatment, does not permit a second opinion on the initial impairment, diagnosis or prescribed treatment relating to pain management, and allows a recipient one opportunity to seek utilization review if the recipient believes the prescribed pain management does not meet medically accepted standards. SB3315, § 3. SB3315 also would require the recipient, as a condition for receiving pain management, to sign an agreement with the treating physician stating the recipient will "submit to at least annual random drug testing at a certified laboratory for the purpose of identifying abuse or diversion of such substances." Id. If the recipient fails to sign the agreement or violates the agreement, then the recipient's right to receive pain management treatment would be terminated. Id. The recipient's actions also would be deemed to be misconduct for purposes of Tenn. Code Ann. § 50-6-241(d) and could impact the recipient's entitlement to permanent total disability benefits under Tenn. Code Ann. § 50-6-207(4).

1. Turning to the first question presented, the Fourth Amendment to the United States Constitution provides in pertinent part that "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures shall not be violated." U.S. Const. Amend. IV. This provision of the Fourth Amendment is made applicable to the states through the due process clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961). The Tennessee Constitution contains similar protections, stating "that the people shall be secure in their persons . . . from unreasonable searches and seizures." Tenn. Const. Art. I, § 7. The Tennessee Supreme Court has recognized that these provisions of the Tennessee Constitution are "identical in intent and purpose with the Fourth Amendment [of the United States Constitution]" and that federal cases applying the Fourth Amendment should be regarded as particularly persuasive. Sneed v. State, 221 Tenn. 6, 423 S.W.2d 857, 860 (1968). See also State v. Hubbard, No. W2010-02493-CCA-R3-CD, 2011 WL 5420819 at *4 (Tenn. Crim. App. November 9, 2011). The Tennessee Supreme Court may, however, interpret the Tennessee Constitution to afford greater rights than the United States Constitution, even when the provisions are identical. See State v. Richards 286 S.W.3d 873, 877-78 (Tenn. 2009). This Office has no reason to believe that Tennessee courts would differ from federal courts in their application of search and seizure requirements to the drug testing provision of SB3315.

It is well established that a drug test by the government is considered a search under the Fourth Amendment. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 617 (1989); Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989). As the United States Supreme Court observed in Skinner, the "collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable," and accordingly "these intrusions must be deemed searches under the Fourth Amendment." Skinner, 489 U.S. at 617.

The United States Supreme Court thus has recognized that the Fourth Amendment protects individuals from unreasonable drug testing conducted or sanctioned by the government, even when the government acts as an employer. Skinner, 489 U.S. at 614-16; Von Raab, 489 U.S. at 665. Accordingly, any such drug tests generally must be supported by a warrant based upon probable cause or an individualized suspicion of illegal activity. Chandler v. Miller, 520 U.S. 305, 313 (1997); Von Raab, 489 U.S. at 665; Smith County Educ. Ass'n v. Smith County Bd. of Educ., 781 F.Supp.2d 604, 614-15 (M.D. Tenn. 2011). However, the United States Supreme Court has recognized a limited exception if the drug testing serves a "special governmental need, beyond the normal need for law enforcement." Von Raab, 489 U.S. at 665. To determine whether a search meets a "special" governmental need it is "necessary to balance the individual's privacy expectations against the government's interest to determine if it is impractical to require a warrant or some level of individualized suspicion in the particular context." Id. (citing Skinner 489 U.S. at 616-18). For example, a special need may exist when a government employee holds a "safety sensitive" position, meaning that the employees' duties are so "fraught with . . . risks of injury to others that even a momentary lapse of attention can have disastrous consequences." Skinner, 489 U.S. at 628.

In applying this test, the United States Supreme Court has stressed that the "proffered special need for drug testing must be substantial—important enough to override the individual's acknowledged privacy interest, sufficiently vital to suppress the Fourth Amendment's normal requirement of individualized suspicion." Chandler v. Miller, 520 U.S. at 318. See also Von Raab, 489 U.S. at 680-81 (Scalia, J., dissenting). Thus when special needs are alleged in justification of a Fourth Amendment intrusion, "courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties." Id. at 314.

At least one Court has observed the difficulty in the application of this test to particular factual situations, stating:

Von Raab's balancing test is inherently, and doubtless intentionally, imprecise. The Court did not purport to list all of the factors that should be weighed or to identify which factors should be considered more weighty than others . . . Nonetheless, balance we must.

Willner v. Thornburgh, 928 F.2d 1185, 1187-88 (D.C. Cir. 1991).

Since the enunciation of this test by the United States Supreme Court, this Office has been asked on several occasions to apply the test to various specific factual situations. See Op. Tenn. Att'y Gen. 12-45 (April 3, 2012); Op. Tenn. Att'y Gen. 12-41 (March 20, 2012); Op. Tenn. Att'y Gen. 07-84 (June 1, 2007) (all addressing the limitations on drug testing as a condition of receiving public assistance). See also Op. Tenn. Att'y Gen. 08-106 (May 7, 2008); Op. Tenn. Att'y Gen. 07-96 (July 2, 2007); Op. Tenn. Att'y Gen. 94-030 (March 11, 1994); Op. Tenn. Att'y Gen. 90-70 (July 3, 1990); Op. Tenn. Att'y Gen. 89-66 (April 28, 1989).

This opinion request concerns the requirement of SB3315 that a workers' compensation recipient receiving pain management treatment must agree in writing to at least annual random drug testing at a certified laboratory for the purposes of identifying abuse or diversion of pain medication. The refusal of the recipient to sign the agreement or any violation of the agreement results, among other consequences, in the recipient losing the right to any further treatment. Accordingly, the drug testing would be required by law as a condition for receiving pain management treatment under the workers' compensation statutes and thus would implicate the Fourth Amendment given that it would be a search mandated by state government. See Skinner, 489 U.S. at 614-16. The question posed then is whether this drug testing requirement by the State of Tennessee is justified by "exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impractical." Lebron v. Wilkins, No. 6:11-cv-01473-Orl-35DAB, 2011 WL 5040993, at *9 (M.D. Fla. Oct. 24, 2011) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackman, J., concurring)).

In applying this test to SB3315, this Office believes it is unlikely a court would find sufficiently strong public safety or special needs concerns that would override the protections afforded Tennessee citizens under the United States and Tennessee Constitutions prohibiting suspicionless warrantless searches. The workers in question are not as a group involved in inherently dangerous activity, nor does the mere receipt of pain medication for a work-related injury automatically suggest a predilection to substance abuse or the diversion of pain medication to any greater extent than would be found among all patients receiving pain medication. Indeed, the same reasoning that led the United States Sixth Circuit Court of Appeals to find that drug testing of public welfare recipients required some quantum of individualized suspicion would appear equally applicable to the drug testing of recipients of workers' compensation benefits. See Marchwinski v. Howard, 60 Fed. Appx. 601 (6th Cir. 2003); see also Lebron, 2011 WL 5040993 at *7-10; Op. Tenn. Att'y Gen. 12-45, at 3-5.

Furthermore, in the context of workers' compensation benefits, a similar conclusion was reached by the Ohio Supreme Court in addressing Ohio's statutory requirement that private employers must conduct warrantless drug and alcohol testing of injured workers without any individualized suspicion of drug or alcohol use. While Ohio's drug testing requirement swept more broadly than the provisions of SB3315, the Ohio Supreme Court reasoning is still instructive:

In the cases where the court [United States Supreme Court] has allowed the suspicionless drug testing, the targeted individuals either have a demonstrated history of abuse, e.g., Skinner . . . hold a unique position, e.g., Von Raab, or have the potential for creating risks of catastrophe if under the influence of a mind-altering substance, e.g., Von Raab and Skinner. The overriding idea is that the situations and targeted groups are unique and discrete.

H.B. 122 [the Ohio statute] does not fit within the parameters of what the court has found to be the "closely guarded" category of constitutionally permissible suspicionless searches. H.B. 122 does not target a group of people with a documented drug and alcohol problem. It is not directed at a segment of the population with drug use known to be greater than that of the general population—its target group is the general population. It does not target a segment of industry where safety issues are more profound than in other industries. It does not target certain job categories where drug or alcohol use would cause a substantial danger to workers, co-workers, or the general public.

. . . .

Moreover, in Ohio, workers have an additional expectation of privacy when it comes to workers' compensation. The workers' compensation system is designed to avoid the adversarial character of the civil justice system, allowing workers to recover for injuries they suffer on the job without having to undertake the risk and expense of a civil trial. In return, employers are protected from large civil damage awards. . . .

Under such a system of compromise for mutual benefit, a worker would not expect to face the indignity of drug and alcohol testing without any suspicion of wrongdoing. Workers would not anticipate that their sobriety would be called into question merely for suffering an industrial accident.

State ex rel. Ohio AFL-CIO v. Ohio Bureau of Workers' Comp., 97 Ohio St.3d 504, 780 N.E.2d 981, 989-91 (2002).

Accordingly, this Office's opinion is that a court would most likely find the drug testing component of SB3315 to be constitutionally suspect.

Finally, this Office would note that a state cannot require a person to consent to an otherwise unconstitutional drug test as a condition for obtaining workers' compensation benefits. As observed in Op. Tenn. Att'y Gen. 12-45, a state's "exaction of consent to an otherwise unconstitutional search" to obtain government benefits "would violate the doctrine of unconstitutional conditions." Op. Tenn. Att'y Gen. 12-45, at 6 (quoting Lebron, 2011 WL 5040993 at *9 (citing Perry v. Sindermann, 408 U.S. 593, 597 (1972))).

2. The second question concerns the retrospective application of the remaining provisions of SB3315. These provisions do not impact the actual benefits awarded to recipients but rather change the process by which pain management treatment is delivered in order to ensure the appropriate utilization of pain medication. Thus such changes are remedial in nature, and retrospective application of this process to recipients injured prior to any enactment of SB3315 should not violate the provisions of the United States and Tennessee Constitutions prohibiting the impairment of vested rights (U.S. Const., Art. I, § 10, cl. 1; Tenn. Const. Art. I, § 20). See In re D.A.H., 142 S.W.3d 267, 273 (Tenn. 2004); Caudill v. Foley, 21 S.W.3d 203, 208 (Tenn. Ct. App. 1999); Morford v. Yong Kyun Cho, 732 S.W.2d 617, 620 (Tenn. Ct. App. 1997).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

Requested by:
The Honorable Jack Johnson
State Senator
11 Legislative Plaza
Nashville, Tennessee 37243

The Honorable Mark White
State Representative
110 War Memorial Building
Nashville, Tennessee 37243