AFGE v. Martin: Setting the Bounds of Reasonable Suspicion Testing for Suspected Off-Duty Conduct

  • By: Andrew David Easler, Esq.
  • Published: Oct, 7 2021
  • Updated: Nov, 4 2023

In September of 1986, Executive Order 12564 was issued, which prohibited illegal drug use by federal employees both on and off duty.[1] The order directed all executive agencies to develop a plan for achieving a drug-free workplace.[2]

In response to Executive Order 12564, the United States Department of Labor (“DOL”)  developed a Drug-Free Workplace Plan (“Plan”).[3] The Plan distinguished between DOL employment positions determined to be public health and safety- or national security-sensitive, referred to as “testing designated positions” (“TDP”), and all other DOL employment positions.[4] Under the plan, a urinalysis drug test can be administered to a TDP employee based on a reasonable suspicion of on-duty or off-duty drug use.[5]

After the development of the Plan, the American Federation of Government Employees (“AFGE”), its labor unions, and two DOL employees filed suit in the district court seeking to enjoin the DOL from conducting drug tests based on reasonable suspicion of on-duty or off-duty drug use.[6]AFGE also sought a declaration that the provision violated the Fourth Amendment.[7] The district court held that the Fourth Amendment barred drug testing of DOL employees in public health and safety-sensitive or security-sensitive positions based on reasonable suspicion of off-duty drug use.[8]

On appeal, the Court of Appeals for the Ninth Circuit evaluated the issue of whether the DOL may conduct drug tests of TDP employees based on a reasonable suspicion of off-duty drug use without offending the Fourth Amendment.[9] The DOL argued that, because the duties of TDP employees implicated significant public health and safety or national security concerns, there is a substantial governmental interest in detecting and deterring any illegal drug use by these employees.[10]

The court of appeals noted that the urinalysis drug tests invade reasonable expectations of privacy rendering them searches within the meaning of the Fourth Amendment.[11] However, the court of appeals disagreed with the district court’s reasoning that regardless of the nature of the positions involved, all reasonable suspicion drug testing must be based on suspicion of on-duty and not off-duty drug use or impairment.[12]

The court explained that whether the government may validly require employees to submit to drug testing is determined by a balancing of interests test.[13] The test involves a balancing of the extent of intrusion on the employees’ Fourth Amendment privacy interest against the search’s promotion of a legitimate governmental interest.[14] In completing this balancing test, the court found that where the government has a legitimate public health and safety or national security interest in confirming whether an employee is using illegal drugs on- or off-duty, the existence of reasonable suspicion weighs in favor of finding that a resulting search is reasonable.[15]

The court of appeals held that it is constitutional for an employer to conduct drug testing based on reasonable suspicion of off-duty illegal drug use when the employee occupies a health and safety-sensitive or security-sensitive position.[16]  It upheld the constitutionality of DOL’s Plan based on a few key findings. First, the reasonable suspicion provision in the case was implemented to deter drug use among employees holding specified public health and safety- or national security-sensitive positions.[17] Conversely, employees who do not hold safety- or security sensitive positions can only be tested based on reasonable suspicion of on-duty use or impairment.[18] Therefore, the drug testing of TDP employees promotes special governmental needs beyond the normal need of law enforcement [19]

Second, the Plan provides for reasonable suspicion testing for off-duty drug use when it is based on actual observation of indicators of a safety-sensitive TDP employee’s off-duty illegal drug use or impairment.[20] Examples of observable conduct may include direct observation of drug use or possession and/or physical symptoms of being under the influence of a drug.[21]

Third, reasonable suspicion drug testing of TDP employees is not random or unannounced and objective evidence to justify the test must consist of credible eyewitness testimony.[22] Finally, the Plan gives minimal discretion to the officials charged with implementing the testing determination procedure.[23] Supervisors are trained to recognize observable phenomena giving rise to reasonable suspicion and must document all facts before recommending a drug test.[24]

The court in this case held that a federal employer may conduct drug testing based on reasonable suspicion of off-duty drug use when the nature of the employees’ position or task implicates health and safety or security concerns, but not if the employee is non-safety-sensitive.

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