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50 Some state and local governments have their own hence broader protection against government searches, family and medical leave laws. (See Appendix A, State the standards for determining the constitutionality of Family and Medical Leave Statutes.) Where such laws the testing may differ under federal and state law. exist, employers must comply with any state or local requirement that provides greater rights than the Fed- 1. Fourth Amendment eral FMLA.456 For example, state laws may apply to Drug/alcohol testing has been held to be a search employers with less employees than under federal subject to the Fourth Amendment, but has been allowed law,457 expand the definition of covered family mem- under exceptions to the requirements for a warrant and bers,458 or broaden the categories of reasons for taking individualized suspicion. The Supreme Court found leave.459 that drug tests required under the FRA's general au- thority to prescribe regulations governing railroad E. Search and Seizure460 safety were searches subject to the Fourth Amendment Government-mandated drug and alcohol tests461 are but were permissible under a special needs analysis, clearly searches under federal and state constitutions: holding that the government's interest in regulating the government-mandated testing programs may be subject conduct of railroad employees to ensure safety consti- to challenge on the grounds that they constitute unrea- tuted a special need beyond normal law enforcement. In sonable--and thus unlawful--searches. The constitu- so doing the Court stressed the safety-sensitive tasks of tionality of drug testing requires a fact-based analysis the employees subject to the testing. The Court re- of the governmental interests and individual privacy viewed the compelling government interest, balanced interests in question, so that the types of job categories the government interest against the privacy interests at covered by the testing, the reasons for testing, whether stake, and found that the government interest justified testing is conducted pre- or post-employment, and test- the limited intrusion on those privacy interests, even ing procedures used will all affect the outcome of the absent a warrant or individualized suspicion.464 In a 462 analysis. Since state constitutions may provide case argued and decided the same day as Skinner, the broader protection than the Federal Constitution,463 and Court found that drug testing implemented by the Cus- toms Service also constituted a search subject to the 456 State of Wisconsin Department of Workforce Develop- Fourth Amendment but was also justified under the ment, Equal Rights Division, Civil Rights Bureau, Comparison special needs analysis.465 of Federal and Wisconsin Family and Medical Leave Laws, While the Supreme Court has not addressed the spe- www.dwd.state.wi.us/dwd/publications/erd/pdf/erd-9680-p.pdf. cific issue of drug and alcohol testing of transit employ- 457 E.g., Oregon: 25 or more persons. OR. REV. STAT. ees, numerous lower courts have done so. For example, 659A.153 Covered employers, www.leg.state.or.us/ors/659a. not long after Skinner was decided, a New York district html. court applied the special needs analysis to NYCT's drug 458 E.g., Rhode Island: family member means parent, spouse, testing.466 A class of plaintiffs including both applicants child, mother-in-law, father-in-law, or the employee himself or and employees challenged the testing on grounds both herself, and with respect to employees of the state as defined in subsection (3)(ii), shall include domestic partners as defined in 464 Skinner v. Rwy. Labor Executives' Ass'n, 489 U.S. 602, 36-12-1(3). R.I. GEN. LAWS 28-48-1(5), 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989). The regulations in www.rilin.state.ri.us/Statutes/TITLE28/28-48/28-48-1.HTM. 459 question mandated drug and alcohol testing following a major E.g., Connecticut: Leave may be taken to serve as an or- train accident, and allowed railroads to require such testing gan or bone marrow donor. CONN. CEN. STAT. 31- after reportable accidents or incidents where a supervisor had 51ll(a)(2)(C), reasonable suspicion that an employee's acts or omissions con- http://search.cga.state.ct.us/dlsurs/sur/htm/chap557.htm#Secs3 tributed to the occurrence or severity of the accident or inci- 1-51cc%20to%2031-51gg.htm. dent. Permissive testing was also authorized in the event of 460 See HIRSCH, supra note 49, at 56; JOCELYN WAITE, THE certain rule violations such as excessive speeding. The Court CASE FOR SEARCHES ON PUBLIC TRANSPORTATION 27, 60 (Tran- found that both the mandatory and permissive testing were sit Cooperative Research Program, Legal Research Digest 22 subject to the Fourth Amendment. Prior to Skinner, a federal 2005) (discussing Skinner v. Ry. Labor Executives' Ass'n, 489 district court, noting that the Supreme Court had never deter- U.S. 602 (1989) (upholding warrantless, suspicionless drug mined the proper Fourth Amendment analysis for drug and testing of railroad employees involved in train accidents)). alcohol testing of public employees, had found random drug 461 Silver, supra note 318, at ch. 13, Alcohol, Drugs, Aids, & testing of transit employees to violate the Fourth Amendment. Other Testing. Amalgamated Transit Union v. Sunline Transit Agency, 663 F. 462 E.g., Loder v. City of Glendale, 715, 14 Cal. 4th 846, 877, Supp. 1560, 1566 (1987). 465 927 P.2d 1200, 1219, 59 Cal. Rptr. 2d 696 (Cal. 1997) (uphold- Nat'l Treasury Employees Union v. Von Raab, 489 U.S. ing suspicionless drug testing for all job applicants as part of 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989). The drug testing reasonably administered lawful preemployment medical ex- was required for any employee meeting one or more of three amination required of all job applicants, but only for safety- criteria: direct involvement in drug interdiction or enforcement related incumbent employees). of related laws, requirement that the incumbent carry fire- 463 See e.g., Leonel v. Am. Airlines, Inc., 400 F.3d 702, 711 arms, and/or requirement for the incumbent to handle "classi- (9th Cir. 2005); Ellison v. State, 383 P.2d 716, 718 (Alaska fied" material. 466 1963) (Alaska's search and seizure clause is stronger than fed- Burka v. N.Y. City Transit Auth., 739 F. Supp. 814 eral protection). (S.D.N.Y. 1990).

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51 of unreasonable search and seizure and due process. (4) they return to work after an extended absence or The court considered the privacy interests normally suspension; and (5) they resume work after an incident protected by the warrant requirements and analyzed while on duty."468 the mitigation of intrusion on those interests that is The Ninth Circuit upheld drug and alcohol testing of afforded by notice and lack of discretion on the part of transit employees, albeit in an unpublished opinion.469 administering officials, as well as the government's in- The plaintiffs were a bus dispatcher and a transit op- terest in preventing drug users from engaging in safety- erations supervisor/instructor. The district court had sensitive tasks in public transportation. The court also engaged in the balancing test for special needs drug discussed which positions were safety-sensitive, which testing, considering "(1) the nature of the privacy inter- would justify their being subject to drug testing.467 The est involved; (2) the character of the intrusion; and (3) court ultimately held that NYCT's interest in drug test- the `nature and immediacy' of the government's need ing non-safety-sensitive employees outweighed the pri- for testing and the efficacy of the testing for meeting vacy interests requiring a warrant, so that the failure to it."470 The decision turned on the third factor, whether obtain a warrant before drug testing even non-safety- the safety aspects of the plaintiffs' jobs justified the in- sensitive employees did not violate the Fourth Amend- trusion on their Fourth Amendment rights. The district ment. However, due to the higher expectation of privacy court held that because the plaintiffs only infrequently for non-safety-sensitive employees and the reduced gov- performed safety-sensitive duties, their jobs had a ernment interest in testing such employees, the court minimal impact on safety and the intrusion on their found that to satisfy the Fourth Amendment reason- privacy was not justified under the Fourth Amendment. ableness requirement, the agency must have reasonable The court of appeals held this result was inconsistent suspicion of drug use to test non-safety-sensitive em- with Ninth Circuit precedent, finding that frequency 471 ployees. The court found that testing upon return to was not relevant. work after an extended absence, an application for The D.C. Circuit has found that even direct observa- promotion or to become an NYCT employee, or a peri- tion testing under the USDOT regulation is constitu- odic physical did not meet the reasonable suspicion tional, because of the diminished expectation of privacy standard. Testing after an incident was found to meet of the employees to whom direct observation applies: the standard. For safety-sensitive employees, a "bare employees who fail or refuse a drug test and are return- reasonableness" standard was found to be sufficient. ing from a drug treatment program to safety-sensitive Finally, the court examined the drug testing procedures positions.472 used to determine the reasonableness of post-incident Physical exams also constitute searches,473 so physi- testing, finding that because of the government's inter- cal exams required by governmental entities must be est in testing safety-sensitive employees, the balancing free from components that constitute unreasonable analysis for such testing led to a finding that the searches. Drug testing as part of a required physical Fourth Amendment was not violated. However, the 468 government's interest in testing non-safety-sensitive- Laverpool v. N.Y. City Transit Auth., 835 F. Supp. 1440, employees did not outweigh the procedural flaws in the 1456 (E.D.N.Y. 1993). 469 post-incident testing, so that such testing did violate Gonzalez v. Metro. Transp. Auth., 73 Fed. Appx. 986 (9th the Fourth Amendment. Cir. 2003). As an unpublished opinion issued before 2007 but Another New York district court subsequently found after 2002, this opinion may be cited in the First, Third, Fifth, that the NYCT could test employees without prior no- Sixth, Tenth, Eleventh, and D.C. Circuits. Citation is discour- aged, but permitted if there is no published opinion on point in tice following return to work after a positive drug test, the Fourth and Eighth Circuits and prohibited in the Second, as well as testing safety-sensitive employees or appli- Seventh, and Ninth Circuits. cants when "(1) they apply for employment; (2) they 470 Id. at 988. have their routine physical examination; (3) they are 471 Id. at 989, citing Int'l Bd. of Elec. Workers, Local 1245 v. seeking promotion to another safety-sensitive position; United States Nuclear Reg. Comm'n, 966 F.2d 521, 526 (9th Cir. 1992) (upholding random testing of clerical workers in 467 The court found the following positions to be safety sensi- protected areas of nuclear plant where their union could not tive: establish that workers "did not engage in any safety-sensitive train operators, bus operators, train conductors, conductor- work" and at least some workers entered vital areas and may flagmen, and tower operators; the Station and Revenue De- have safety-related responsibilities); AFGE Local 1533 v. Che- partment's booth clerks, station cleaners and collection agents; ney, 944 F.2d 503, 506 (9th Cir. 1991) (upholding random test- the Car Equipment Department's road car inspectors; the Track ing of engineers who were required to hold top secret access Division's track walkers, track equipment maintainers, chauf- clearances, even though they might not ever actually handle feur specialists, and crane operators; the Structure and Line classified information). Equipment Divisions' heating plant workers; the Electrical 472 BNSF Rwy. Co. v. U.S. Dep't. of Transp., 566 F.3d 200, Power Department's workers directly involved with mainte- nance of the power; the Signals Division's employees; the Com- 386 U.S. App. D.C. 17 (D.C. Cir. 2009). 473 munications Divisions' telephone maintainers, electronic main- Schmerber v. State of Cal., 384 U.S. 757, 76670, 86 S. tainers and helpers; and the Surface Department's quality Ct. 1826, 1836, 16 L. Ed. 2d 908, 91719 (1966); State v. Hand, control dispatchers and employees who drive buses in public. 101 N.J. Super. 43, 60, 242 A.2d 888 (Law Div. 1968) (holding Burka v. N.Y. City Transit Auth., 739 F. Supp. 814, 826 that physical examination by a doctor constitutes search (S.D.N.Y. 1990). within meaning of Fourth Amendment).