Can an organization require random drug tests conducted under direct observation in a non-federally regulated testing pool? It depends.
In Wilcher v. City of Wilmington the United States Court of Appeals for the Third Circuit was asked to determine whether the City of Wilmington’s (“the City”) method of testing firefighters for drug use violated the firefighters’ rights under the Fourth Amendment. In July of 1990, the City and the Wilmington Fire Fighters Association agreed that firefighters would be subjected to random drug testing through urinalysis to ensure firefighters were drug-free. The City had a procedure where it would select firefighters at random and notify them that they would be tested before beginning their shift. Once at the station, a battalion chief would take the firefighter to the center where the test was performed. The battalion chief would take the firefighter to a “dry room” and the individual would provide a urine specimen in private. No observer was present in the dry room with the firefighter, but there were certain measures in place to prevent cheating; for example, the toilet bowl in the room contained blue dye to prevent cheating by dilution.
In 1993, to lower the cost of random drug testing, the City solicited bids from testing facilities; however, in its solicitation the City did not request a procedure that included direct observation of urine collection. SODAT-Delaware, Inc. (“SODAT”) submitted a proposal under which firefighters would produce urine samples under visual observation of authorized personnel. The City of Wilmington accepted SODAT’s bid. In January 1994, SODAT began testing the firefighters. SODAT employees were directed to observe the urine collection process by looking in the firefighter’s general direction, but the monitors did not focus on the firefighter’s genitals. However, male firefighters claimed that the SODAT monitor looked over the firefighter’s shoulder and at their genitals while they urinated.
In March 1994, three Wilmington firefighters and the Wilmington Fire Fighters Association (collectively “Plaintiffs”) filed a class-action suit against the City of Wilmington. The Plaintiffs alleged that the City’s testing method violated their Fourth Amendment privacy rights. The District Court for the District of Delaware found that the City’s use of the direct observation method was reasonable under the Fourth Amendment as a matter of law and declined to enter an injunction prohibiting the City from using the method. In response, the Plaintiffs appealed.
The Court of Appeals for the Third Circuit explained that the government’s collection and testing of an employee’s urine constitutes a search under the Fourth Amendment. The court also explained that for testing to be constitutional the government must prove that its testing method is reasonable. The court then determined the reasonableness of the City’s testing method by balancing the test method’s degree of intrusion on the firefighter’s Fourth Amendment privacy interests against the City’s promotion of its own legitimate governmental interests.
Here, the appellate court determined that firefighters had a diminished expectation of privacy based on several factors. First, firefighting is a highly regulated industry. Second, the court noted the safety concerns associated with their type of employment. Undetected drug use by a firefighter is dangerous to other firefighters, to the community, and even themselves. Third, the firefighters had consented to testing in their collective bargaining agreement.
The appellate court then evaluated the character of the search and explained that “the degree of intrusion ‘depends upon the manner in which production of the urine sample is monitored.’” To explain the constitutionality of SODAT’s testing method, the appellate court compared this case to Vernonia School District 47J v. Acton. In Vernonia, the United States Supreme Court upheld the constitutionality of a random drug testing program that a school district used to reduce drug use among its student-athletes. The drug testing procedure involved the student entering an empty locker room accompanied by an adult monitor of the same sex. Boys would produce a sample at a urinal with their back to the monitor. The monitor would stand about 12 to 15 feet behind the boy and watch the student while he produced the sample. On the other hand, girls produced samples inside a bathroom stall, where they could not be seen.
The appellate court agreed with the district court that SODAT’s collection method was no more intrusive on the firefighters than was the school’s drug-testing program. When it comes to male firefighters, the appellate court expressed that men urinate at exposed urinals in public bathrooms, and, within this context, SODAT’s procedure is not a significant intrusion on the male firefighters’ privacy expectations. On the other hand, the appellate court stated that the presence of a monitor while a female urinates is not an aspect of daily life. However, SODAT took substantial measures to minimize the intrusion caused by their observation procedure. The court noted that the female monitors stood to the side of the female firefighters, looking in their direction, but that they did not look at the firefighters’ genitalia.
Finally, the appellate court evaluated whether the government’s interest was a compelling one. The City and SODAT argued that visual observation was necessary to prevent cheating. The Plaintiffs argued that other measures could be taken; for example, testing the urine’s temperature. During the trial, a forensic toxicologist explained that cheaters can still find ways to avoid detection; for example, they can keep the urine “close to their body so that it takes on the body’s temperature.” Also, the toxicologist maintained that direct observation was the best method to ensure the integrity of a urine sample. The appellate court concluded that SODAT’s direct observation method did not violate the Plaintiffs’ Fourth Amendment rights.
Wilcher v. City of Wilmington merely provides a guide for one end of the spectrum in non-federally mandated testing programs, subject to subsequent judicial interpretation and reinterpretation. When a government or state actor implements a drug testing policy, it must carefully consider whether the safety interests served are sufficiently compelling to justify the use of direct observation procedures in drug testing. The case at issue in this case involved firefighters, but what about supervised volunteer firefighter trainees? Office administrators? Forklift drivers? If direct observation is warranted, the organization must determine which procedures be implemented and in which circumstances. Will male and female employees be treated differently as they were by the City of Wilmington here? Does the Supreme Court’s subsequent holding in Bostock prevent such a distinct testing method? The Supreme Court’s balancing test for determining the constitutionality of privacy intrusions like drug testing programs requires a careful case-by-case analysis and frequent review of drug testing programs to ensure constitutionality.
 Wilcher v. City of Wilmington, 139 F.3d 366, 369 (3d Cir. 1998).  Id. at 371.  Id.  Id.  Denoting a restroom where all water sources are secured.  Id.  Wilcher, 139 F.3d at 371 (dilution is a method where the tested individual essentially “waters down” the specimen with water from an unsecured source such as the toilet bowl).  Id. (“direct observation” typically refers to a specific procedure outlined under federal regulations used only in extremely limited circumstances in which an observer of the same gender checks a urine specimen donor for hidden devices or external bladders then watches the urine leave the employee’s body, see 49 C.F.R. § 40.67 (2020)).  Id.  Id.  Id.  Wilcher, 139 F.3d at 371.  Id.  Id. at 370.  Id.  Id. at 370 (relying on the holding in Bolden, see Bolden v. SEPTA, 953 F.2d 807, 822-23 n.23 (3d Cir. 1991)); see also, “Saved by the Settlement: How a Union Settlement Trumped an Unconstitutional Return-to-Work Drug Testing Program”.  Wilcher, 139 F.3d at 370.  Id. at 373 (relying on the holdings in Skinner v. Railway Labor Executives’ Assn. and Treasury Employees v. Von Raab); see, Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 617, (1989); Treasury Employees v. Von Raab, 489 U.S. 656, 665 (1989); see also, “Lessons on Reasonable Suspicion from Burnley and Skinner”.  Id. at 374.  Id.  Id.  Wilcher, 139 F.3d at 374.  Id. at 374.  Id. at 375.  Id. at 374.  Id. (citing Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995)).  Wilcher, 139 F.3d at 376.  Id.  Id.  Id.  Id.  Wilcher, 139 F.3d at 376.  Id.  Id.  Id.  Id. at 377.  Wilcher, 139 F.3d at 377.  Id.  Id.  Id. (One method of “cheating” a drug test is to provide a substitute sample from outside the testing facility concealed under the clothes; however, unless an external source of heat is used the specimen will likely “cool” to below 90 degrees Fahrenheit, hence the temperature check).  Id.  Wilcher, 139 F.3d at 377.  Id. at 378.  An entity that is technically not a governmental entity but, as a result of its involvement with one or more government entities it is considered an arm of the state and thus subject to certain legal limitations. See generally, G. Sidney Buchanan, A Conceptual History of the State Action Doctrine: The Search for Governmental Responsibility, 34 Hous. L. Rev. 333 (1997).  Bostock v. Clayton Cty., 140 S. Ct. 1731, 1734 (2020) (holding that decisions based on gender, even if indirect, may violate Title VII of the Civil Rights Act).