PRESS RELEASE:  MAJOR CONSTITUTIONAL DECISION AFFECTING TRANSPORTATION INDUSTRY PRIVACY RIGHTS

On Friday, May 15th, the United States Court of Appeals for the District of Columbia decided a case that is styled BNSF Railway Company v. United States Department of Transportation, which determined important privacy rights for aviation, rail, motor carrier, mass transit, maritime and pipeline industries' workers.

The Department of Transportation requires that workers under its purvey, who have either previously refused to submit to a drug test or failed a prior drug test, must successfully complete a drug treatment program and pass a follow up urine analysis before returning to safety-sensitive work.  Then, the worker must undergo a series of six subsequent random urine tests over a twelve month period.

 At issue in this case is whether the Department of Transportation can utilize a direct observation technique in administering these drug tests, where the examiner will literally observe the urine exiting the examinee.  Due to a heightened concern for repeated drug use and in an environment where prolific means have been brought to market for drug test takers to falsify their samples, the court balanced the highly intrusive nature of these direct examinations against the benefit of maintaining a drug free transportation workplace.

One of the interesting factual determiners in this case was the advent of devices marketed to falsify the results of random drug tests.  The "wizzinator," a device the Court particularly highlighted, was designed to closely resemble the male genitalia and to dispense either an artificial urine sample or a previously collected clean urine sample.  The Department argued that such devices necessitate the direct observation of urine sample collection in the instance where the worker has previously failed a drug test or refused to submit to a random drug test because in such instances, the worker supposedly has a heightened incentive to falsify his or her drug test.

In its balancing act, the Court stated that "the Department acted neither arbitrarily nor capriciously in concluding that the growth of an industry devoted to circumventing drug tests, coupled with returning employees' higher rate of drug use and heightened motivation to cheat, presented an elevated risk of cheating on return-to-duty and follow-up tests that justified the mandatory use of direct observation."  Indeed, the Court sided with the Department in outweighing the worker's right to privacy by comparison to the Department's goal of creating a drug-free transportation workplace.

From a Constitutional Law perspective, this decision is a radical departure from the Fourth Amendment "search" law precedent because it sanctions a strip search of a U.S. Citizen in the United States at the time of giving a urine sample, even though there is no justification at that moment for the strip search.  

In addressing the Fourth Amendment issue, the Court stated "that the employees' prior misconduct is particularly salient, especially compared to their choice to work in a pervasively regulated industry.  It's one thing to ask individuals seeking to avoid intrusive testing to forgo a certain career entirely; it's a rather lesser thing to ask them to comply with regulations forbidding drug use.  True, direct observation is extremely invasive, but that intrusion is mitigated by the fact that employees can avoid it altogether by simply complying with the drug regulations.  On the other side of the balance, the Department has reasonably concluded that the proliferation of cheating devices makes direct observation necessary to render these drug tests needed to protect the traveling public from lethal hazards effective.  Weighing these factors, we strike the balance in favor of permitting direct observation testing in these circumstances."

The opinion, though, leaves the reader wondering if foregoing essential privacy, especially in the context of genitalia exposure, should be required of a worker choosing to "work in a pervasively regulated industry."

When juxtaposed to the need to have a drug free workplace in the area of public transportation, the final decision was foreseeable, but clearly it is highly intrusive and is now the law of the land.  The decision can be appealed to the United States Supreme Court, but it is unlikely to be reversed at that level.