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52 exam has also been upheld against Fourth Amendment court found various defects in NYCT's drug testing pro- challenges, either for job applicants474 or for employees, cedure, including lack of timely notice to employees of where a sufficient nexus exists between the test and the positive results and lack of notice of the option for inde- employer's legitimate safety concerns.475 For example, a pendent testing, sufficient to constitute lack of proce- New Jersey court has held that the Fourth Amendment dural due process under the Fourteenth Amendment "does not require individualized reasonable suspicion and Article I, Section 6, of the New York State Consti- for drug testing of transportation workers as part of a tution, noting that the standard of due process scrutiny bona fide annual physical examination."476 A number of under the New York Constitution was no higher than federal district courts have also upheld drug screening under the Federal Constitution. as part of routine physicals or return-to-work physicals, Physical exams have also been held to be searches based on balancing the transit agencies' compelling under state constitutions. A lower New Jersey Court safety interests, diminished expectation of privacy of has held that although medical exams are a managerial safety-sensitive employees, and limited intrusiveness of prerogative, they still must meet the requirements un- the procedure.477 The government interest in testing job der the New Jersey Constitution that individuals be applicants has been held to be higher than that for test- free from unreasonable government searches.481 That ing incumbent employees, while the expectation of pri- court found the testing to be justified under the admin- vacy for job applicants, particularly as regards preem- istrative search exception. The California Supreme ployment physical exams, has been held to be lower Court has held that drug testing as part of a preem- than that for incumbent employees.478 ployment medical examination is permissible under the 482 California constitution. 2. State Constitutions Government-compelled drug and other testing has IV. OTHER ISSUES been held to be a search under the search and seizure requirements of various state constitutions.479 However, A. Tort/Workers Compensation Liability for state constitutions may offer greater protection against Injuries Suffered During Physical Ability Test unreasonable search and seizures than the Fourth Amendment,480 but not always. In Burka, supra, the One of the risks of conducting physical ability testing court also held that the New York state constitution did is that an applicant or employee may be injured during not provide greater constitutional protection than the the test. While the risk of injury is likely to be less than Fourth Amendment for purposes of assessing the drug during the more strenuous tests conducted for police testing in question, so that drug testing safety-sensitive and firefighters, the risk for transit operator and other employees is subject to the same special needs constitu- non-law-enforcement-position tests nonetheless exists. tional analysis under the state constitution as under A threshold question is whether a transit agency is the Fourth Amendment. The court also ruled on a due subject to tort liability at all, which will depend on state process challenge to the drug testing policy, that NYCT law.483 Assuming that the agency is subject to tort liabil- had taken adverse action without the requisite proce- ity, the enforceability of a release from liability for inju- dural due process. The court found that only permanent ries suffered during a physical ability test will also de- employees had enough of a property interest in job se- pend on state law. State statutes may prohibit contracts curity to have any sort of due process interest. The that purport to exempt a party from his or her own neg- ligence. The Connecticut Supreme Court, without refer- 474 Loder v. City of Glendale, 14 Cal. 4th 846, 927 P.2d 1200, ence to state statutes, has held that exculpatory agree- 59 Cal. Rptr. 2d 696 (Cal. 1997). ments in the employment context violate Connecticut 484 475 Amalgamated Tr. Union v. Cambria County Transit public policy. It is unclear whether this ruling would Auth., 691 F. Supp. 898, 902 (W.D. Pa. 1988); N.J. Transit PBA apply to job applicants as well. An Illinois court held Local 304 v. N.J. Transit Corp., 895 A.2d 472, 384 N.J. Super. that an exculpatory agreement signed by a fire depart- 512 (N.J. Super. 2006) (mandatory annual physical exam for ment trainee before taking the department's physical transit police, including request for medical history and blood agility test was unenforceable due to lack of considera- and urine testing, does not violate Fourth Amendment or Arti- tion.485 The court held that the fire department was re- cle 1, paragraph 7 of the New Jersey Constitution). 476 quired by law to administer the test, and the trainee Fed'n of Prof'l & Technical Eng'rs, Local 194A v. Burling- had a legal right to participate: given that the act of ton County Bridge Comm'n, 240 N.J. Super. 9, 11, 572 A.2d 204 (App. Div.). 481 477 Moxley v. Reg'l Transit Servs., 722 F. Supp. 977 N.J. Transit PBA Local 304 v. N.J. Transit Corp., 476, (W.D.N.Y. 1989); Holloman v. Greater Cleveland Reg'l Trans. 384 N.J. Super. 512, 895, A.2d 472 (App. Div. 2005). 482 Auth., 741 F. Supp. 677 (N.D. Ohio 1990). Loder, 927 P.2d 1200. 478 483 Loder, 927 P.2d 1200. See JOCELYN WAITE, TRANSIT BUS STOPS: OWNERSHIP, 479 See e.g., N.J. Transit PBA Local 304 v. N.J. Transit LIABILITY, AND ACCESS 46 (Transit Cooperative Research Corp., 151 N.J. 531, 543, 701 A.2d 1243, 1249 (1997). Program, Legal Research Digest 24, 2008). 484 480 E.g., id. at 55556, 1255. See WAITE, supra note 460, at Brown v. Soh, 280 Conn. 494, 909 A.2d 43 (2006). 485 3745 (discussing state constitutional issues related to search White v. Village of Homewood, 256 Ill. App. 3d 354, 628 and seizure). N.E.2d 616 (1st Dist. 1993).