Drug Testing May Not Violate Fourth Amendment

By James Hatch

May. 4, 2007

The city of Marion, Indiana had a collective bargaining agreement with American Federation of State, County and Municipal Employees Local No. 3063 that permitted drug testing of workers. The city unilaterally adopted a new policy that required random drug testing for all employees performing duties related to the safe operation of city equipment, and instructed all sanitation department employees, except a secretary, to take a drug test. One employee, Robert Krieg, refused and was fired.

    Affirming the dismissal of Krieg’s legal challenge to that decision, the U.S. Court of Appeals for the 7th Circuit in Chicago held that the city had a special need for random drug testing. While drug testing is a search within the meaning of the Fourth Amendment, the Supreme Court held in Nat’l Treasury Employees Union v. Von Raab (489 U.S. 656, 1989) that random testing is constitutionally permissible if it serves special governmental needs. Von Raab said that courts must balance individual privacy expectations against governmental interests and determine whether it would be impractical to require a search warrant or individualized suspicion before allowing random testing of a government employee.

    Under this test, random drug testing of employees in the rail, highway and motor transportation industries and for heavy equipment operators has been approved by the courts.

    Because Krieg’s job responsibilities involved driving large equipment on city streets, the court concluded that any reasonable jury would consider that his job duties contained a risk of injury to others. The 7th Circuit also concluded that Krieg’s expectation of privacy was diminished because he had been subjected to drug testing in the past. Krieg v. Seybold, 7th Cir. No. 06-2322 (March 21, 2007).

    Impact: Drug testing of government employees must be based on special governmental needs and balanced against individual privacy rights to avoid a Fourth Amendment violation.


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