From Urine to Saliva Drug Testing: Tipping the Scales in Favor of Employee Privacy

The United States Supreme Court has held that, under the Due Process Clause, there exists a vital liberty interest in the “personal and private life of the individual.”[1] Further, the Fourth Amendment of the United States Constitution protects that privacy interest in its prohibition of unreasonable searches and seizures.[2] Whether a search is reasonable or not “depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.”[3] Thus, the permissibility of a particular government search or seizure practice “is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”[4] If it intends to intrude upon that interest without a warrant or probable cause, the government must set forth at least a legitimate governmental purpose and that purpose must not be arbitrary or capricious.[5] The Supreme Court in Skinner v. Railway. Labor Executives’ Association found that there was a governmental interest in certain drug testing regulations affecting safety-sensitive employees working in transportation-related fields and that this interest outweighed the Fourth Amendment privacy rights of employees covered by those regulations.[6] The Court further held that, at the time, the drug and alcohol tests “were not considered intrusive because there was a diminished expectation of privacy on the information relating to the physical condition of covered employees and to reasonable means of procuring the information because the industry was highly regulated for safety.”[7] Today, however, the federal government has at its disposal a method of procuring this information without nearly the same level of intrusiveness necessary in 1991.[8]

Positive result versus actual impairment has been a contentious national issue as marijuana becomes legalized in different forms in many states while remaining illegal at the federal level.[9] Oral fluid drug testing offers a shorter detection period which aligns much more closely to actual impairment rather than simply harboring the metabolites in the system.[10] Oral fluid removes much of this contest by providing results that more accurately reflect actual impairment rather than simply the presence of a metabolite days or even weeks after substance use.[11] Urine testing, the current default mode of drug testing in United States Department of Transportation testing programs, can detect the presence of substances in the system after about 4-6 hours and for up to 30 days after use;[12] however, oral fluid testing can detect prohibited substance use from about 5 hours after use to about only 48 hours.[13] In addition, urine tests often require “direct observation”, a highly invasive procedure which involves the person conducting the urine collection to directly observe the employee’s urine leaving the body.[14] Oral Fluid eliminates the invasive nature of the collection and removes most sources of potential tampering by allowing the person conducting the oral fluid specimen to directly observe the entire collection process from start to finish without the need for the employee to disrobe, wash their hands, or otherwise give up more of her privacy rights in the name of the governmental interest.[15]

The Substance Abuse and Mental Health Administration (SAMHSA), a division of the federal government’s Department of Health and Human Services (HHS) announced in October of 2019 that it was adopting Mandatory Guidelines for the collection of Oral Fluid Specimens (OFMG).[16] The Oral Fluid Mandatory Guidelines address public concerns about privacy, safety, detection windows, and employer interests and leaves the adoption of the oral fluid specimen as a drug testing mode up to the federal agency administering the program—meaning that the federal agency can choose to completely eliminate urine testing, keep urine testing for some testing reasons but not all, or to not adopt oral fluid at all.[17] This decision, originally published for public comment in 2015, now eliminates almost obstacle to the adoption of oral fluid as an alternative to urine in federal testing programs.[18]

Accordingly, the United States Department of Transportation’s continued use of invasive urine testing while a non-invasive and effective alternative exists, it violates the employee privacy interest protected by the Fourth Amendment and outlined in Skinner v. Railway Labor Executives Association[19] and supported in Lawrence v. Texas.[20]

BACKGROUND ON FEDERAL DRUG TESTING MODES

By the time Congress passed the Omnibus Transportation Employee Testing Act of 1991,[21] the notion of urine as a reliable testing modality had been accepted by the federal government and was adopted in the mandatory drug testing of certain federal employees through President Ronald Reagan’s Executive Order 12564.[22] Thus, urine was adopted as the primary method for testing safety-sensitive workers in the transportation sector.[23] An individual’s urine is capable of harboring a detectable quantity of drugs or its metabolic compounds for a period of up to 30 days.[24] The process for urine collection allows for several safeguards against inaccurate or unjust results instigated by the employee, the collector, the laboratory technician, the Medical Review Officer or the employer.[25] Such safeguards include the following of chain of custody procedures,[26] the collection of a “split” specimen,[27] the licensing and regulation of laboratories,[28] the regulation and qualification of Medical Review Officers,[29] the implementation of shy bladder procedures,[30] and the use of direct observation procedures.[31] The lengthy detection period of a urine sample assists employers in making informed decisions in the hiring process including whether an employee has used an illicit substance prior to their application for employment or whether the employee has used an illicit substance during employment.[32] Employers argue that this assists in ensuring a safe and productive workplace.[33]

Employee rights advocates argue instead that such a lengthy detection period does not provide actionable information about impairment and instead gives employers, and the Government when federal drug and alcohol testing is mandated, more power than necessary to accomplish those goals and that there are less invasive means of testing.[34]

In a society that continues to push the boundaries of what is considered “private,” urination is still generally considered to be a “private” process. This is likely a reason why Americans have separate bathrooms and stalls and criminalize the act of urinating in public.[35] In addition, voiding urine into a cup is generally an unnatural act for most individuals. It involves the exposure of the genitals during the extremely personal process of urination. Thus, when collecting a specimen under federal authority, it stands to reason that the donor[36] would expect greater privacy. When a single-stall restroom is used, the door must be completely closed, leaving the donor in the bathroom to void alone.[37] When a multi-stall restroom is utilized, the collector may remain in the bathroom only if the collector is the same gender or a medical professional and even then, must stand outside of the stall the donor uses with the stall door closed.[38]

This level of visual privacy required when collecting a urine sample provides for a greater opportunity for the donor to “cheat” the test as the donor will be alone and unsupervised.[39] Donors have developed several creative methods to avoid a positive drug test result including: coating fingers with an adulterant prior to testing, bringing another individual’s urine into the restroom with them and providing that specimen instead, purchasing synthetic urine and utilizing the synthetic urine as a substitute, purchasing an adulterant such as powdered bleach to adulterate the test, and diluting the sample with water from the sink, tank, or toilet bowl.[40]

To combat this cheating, federal regulations require that collectors, among other procedures, secure all water sources and place blue dye in the toilet bowl.[41] Individuals providing a urine sample must empty their pockets, remove outer clothing and hats or head coverings, wash their hands prior to voiding, and provide a sufficient sample within a valid temperature range.[42] Securing water sources often requires extra time in the collection process and extra investment by the collection facility through the use of blue dyes, tamper-evident tape, water shut-off valves, and sometimes even the purchase of specialty toilets; this adds an additional cost to the testing process.[43]

Requiring donors to empty their pockets provides an opportunity for theft of items or credit card fraud as many collectors require these items be placed outside of the presence of the donor while providing a sample.[44] To avoid opportunity for theft or the accusation of theft, facilities are now encouraged “to place valuable items such as keys, phone, cash, and credit cards in a padlocked lockbox or locker that is placed in the restroom with the donor. The donor is able to monitor who has access to the box while voiding and the collector has kept the key so they know the donor has no access to the items, either.”[45]

Requiring donors to remove outer clothing and head coverings may be seen as a violation of the free exercise clause,[46] though the most recent version of the Department of Transportation Urine Specimen Collection Guidelines provides that a collector may not force a donor to remove a religious head covering “unless the collector has an observable indicator that the employee is attempting to hide inside the head covering adulterants or other substances which may be used in an attempt to adulterate or substitute a specimen.”[47] Nothing in the Code of Federal Regulations, however, currently addresses this concern directly—leaving open the possibility that collectors, ignorant of this rule, may force a donor to remove a religious head covering even without cause to do so.[48] In fact, the exception to this exemption leaves room for abuse with the ambiguous term of “observable indicator.”[49] Since this term is not defined, the execution of this provision is dependent upon the subjective interpretation of the collector. The collector may determine, for example, that a slightly asymmetrical turban is an “observable indicator” or that the slight protrusion of a hair clip under a hijab is an “observable indicator” warranting its removal. This potential for abuse or arbitrary application warrants further scrutiny.

There is a concern that donors of urine specimens may utilize bleach or other adulterants in an invisible or nearly invisible coating on their hands and then dip their hands into the specimen when alone in the restroom in an attempt to adulterate the specimen.[50] This may result in an invalid  test result.[51] To avoid this opportunity, donors must now wash their hands prior to providing a urine specimen for drug testing.[52] This requirement does not address the possibility of coating other extremities prior to testing and is therefore under-inclusive. This mandate may also adversely impacts those donors with sensitive skin conditions or injuries in which the washing of hands with soap is recommended only infrequently or with specialty or medical products during or after washing.[53] An individual who suffers from a “shy bladder,” a condition in which the donor is unable to provide a sufficient specimen, may need to make over ten attempts over a three-hour period, washing her hands prior to each attempt.[54] The regulations make no exception for medical conditions of the skin.[55]

Every employee who submits to a drug test mandated by the United States Department of Transportation must provide a sample of at least 45 milliliters.[56] An individual who provides less than this amount without any indication of adulteration on her first attempt must undergo “shy bladder procedures.”[57] This procedure affords the donor up to three hours, an unlimited number of attempts, and up to forty ounces of fluid to consume in that three-hour time period.[58] An individual who is unable to provide a sufficient specimen after this three-hour period must undergo a medical evaluation to determine if there is a valid medical reason underlying her inability to provide a specimen.[59] Some individuals have treatable conditions which would allow for a re-test, some individuals are physically unable to provide a specimen in a cup without the aid of an additional device such as a catheter or toilet hat.[60] Still others have permanent conditions that prevent the provision of a sufficient urine sample in the time period allotted including physical and mental conditions.[61]

An individual who provides a urine sample which shows signs of tampering such as an unnatural color, temperature, smell, or floating objects in the specimen must undergo a “direct observation” collection or the individual will be deemed to have refused to test.[62] Direct observation procedures involve an individual of the same gender as the donor entering the restroom with the donor, the donor lifting her shirt up to her ribcage, pulling her pants down to her knees, and turning around in a full circle so that the observer can check for any possible containers, prosthetic devices or any object which may be used to interfere with the test.[63] The observer must then watch directly as the urine leaves the body and enters the cup.[64] This process may need to be repeated several times in the event of a shy bladder.[65] This procedure may be especially invasive for individuals whose birth gender does not match their gender identity.[66] The Department of Health and Human Services recognized this issue and addressed it in their Mandatory Guidelines for Federal Workplace Drug Testing Program, applicable to direct federal employees, indicating that gender determination for monitored and directly observed collections “can be challenging.”[67] As a result, the Department of Health and Human Services modified its procedures in a way that “minimizes discomfort to the donor” and now “. . . allow[s] the donor to be observed by a person whose gender matches the donor’s gender, which is determined by the donor’s gender identity . . . . The donor’s gender identity may be the same as or different from the donor’s sex assigned at birth.”[68] However, the Department of Transportation has not taken the same stance and has not issued any revisions to address concerns over gender identity.[69]

REGULATION OF OFF-DUTY CONDUCT

A positive drug result indicates only that the employee used a substance in the detection period but does not prove that the employee was actually impaired when the test was implemented, the primary justification for federally mandated drug tests.[70] This means that an employee who, for example, goes on vacation to a country where the use of marijuana is legal, returns to work after the psychoactive effects have subsided, and subsequently tests positive for Tetrahydrocannabinol (THC) will likely be subject to an employer’s adverse action for lawful off-duty activity.[71] Such adverse actions for legal conduct off-duty are prohibited under many state laws, some federal law, and discouraged by public policy.[72]  In fact, New York City and Nevada recently enacted legislation which prohibits employers from conducting pre-employment drug tests for marijuana on non-federally regulated or otherwise designated employees, citing concerns over its disparate impact on minority communities and the regulation of off-duty conduct.[73]

ALTERNATIVES

There are many alternatives to urine drug testing including blood, hair, nails, sweat, breath, sebum, and oral fluid. Each have their own benefits and drawbacks when applied in workplace testing.

Testing blood for the presence of drugs or their metabolites involves the collection of a blood specimen by needle. [74] When providing a blood sample for drug testing the donor does so under direct observation, and as a result, it is nearly impossible to “cheat” the test. [75] The process does not require the donor to remove items from pockets, wash their hands, or ever have the need to reveal their genitalia or undergo medical evaluation. [76] When testing under federal regulations, the collector of the blood sample must be a qualified medical professional or technician prior to conducting the collection, [77] which limits the number of individuals who may be available to conduct the test. [78] Blood, however, with its limited detection window is one of the only testing modalities capable of testing very close to drug impairment rather than simply drug or metabolite presence. [79] As a result of its physically invasive nature and limited collector availability, blood collection is only utilized under United States Department of Transportation protocols in rare circumstances through the Federal Railroad Administration regulations in the event of certain serious accidents. [80] Hair follicle testing involves the collection of a hair sample directly from the scalp,[81] is completed under direct observation, and is, therefore, extremely difficult to cheat. Hair follicle testing has the longest detection period of all testing modalities.[82] The standard hair follicle test will detect drug use for 90 days.[83] The detection window, however, can be extended further with longer hair.[84] Approximately every centimeter of head hair represents a 30-day period.[85] A hair test on an individual with a hair sample that is 30 inches long, for example, could conceivably detect drug use over five years after possible use. Hair testing has been approved by Congress in federal workplace testing programs and Congress has ordered the Department of Health and Human Services to develop procedures for its implementation since 2015;[86] however, despite a renewed Congressional mandate,[87] these standards have yet to be published by the Department of Health and Human Services. The division responsible, the Substance Abuse and Mental Health Services Administration (SAMHSA), remitted a report to Congress in June of 2019 indicating that, after a critical examination of the current “state-of-the-science and technology concerning hair drug testing and the utility of hair as a specimen for use in federal programs . . . SAMHSA identified a number of unresolved issues that currently limit the feasibility of hair testing for federally regulated programs.”[88] Among the issues cited were concerns over external contamination and effective decontamination procedures, the impact of hair color, cosmetic hair treatments, and specimen validity tests for hair.[89] Despite these concerns, the Department estimated that its proposed hair testing guidelines would be posted for public comment “in the third quarter of 2019.”[90]

The oral fluid collection process involves the provision of an oral fluid (saliva) sample which is then “split” or divided into two separate containers for testing.[91] The test is completed entirely under direct observation and is therefore extremely difficult to cheat.[92] Oral fluid has established solid foundation of research and reliability[93] and places the detection period between 12 hours and up to only about 72 hours after use.[94] This has led scholars to suggest that it is one of the only modalities which can reliably test close to actual impairment rather than simple presence of drugs or their metabolites.[95]

Opponents of the implementation of oral fluid as a federal testing modality argue that its limited detection period will allow frequent and chronic users to refrain from the use of drugs for a day or two prior to their pre-employment test and then resume immediately after—effectively negating the purpose of pre-employment testing.[96] Additional concerns have been raised for individuals whose medical conditions or side effects result in dry mouth.[97] There are, however, methods available to reduce the risk of an insufficient sample including giving the donor up to 4 ounces of water and providing the donor up to an hour to provide the sample thereafter.[98]

Proponents of oral fluid recognize its less invasive testing procedure, shorter detection period, and difficulty in cheating as a logical step for most if not all testing purposes under United States Department of Transportation regulations. [99] Congress, in recognizing its potential for effective use in federal drug testing programs, urged the United States Department of Health and Human Services (HHS) to adopt procedures for oral fluid collection and testing in 2015.[100] In October of 2019, HHS published its official guidelines for oral fluid testing.[101] These guidelines now serve as a basis for federal agencies subject to federal testing programs to implement oral fluid testing programs.[102]

PEMPLOYEE’S PRIVACY INTEREST

Personal privacy is protected by the Fourth Amendment to the Constitution which indicates that “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[103] In Skinner v. Railway Labor Executives’ Association, the Supreme Court heard a challenge to Federal Railroad Administration regulations requiring mandatory drug testing of safety-sensitive employees and recognized that mandatory federal drug and alcohol testing regulations constituted state action.[104] The Court further held that such regulations are, therefore, subject to Fourth Amendment protection against unreasonable searches or seizures.[105] The Court also held that the mandated provision of a urine sample interfered with privacy interests and implicated a “search” under the Fourth Amendment, holding that because the “chemical analysis of urine, like that of blood, can reveal a host of private medical facts about an employee . . . . Nor can it be disputed that the process of collecting the sample to be tested, which may in some cases involve visual or aural monitoring of the act of urination, itself implicates privacy interests.”[106] The Court then cited an opinion by the Court of Appeals for the Fifth Circuit:

There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom.[107]

The Court’s analysis in Skinner was based on urine drug testing which, at the time, was the only recognized, reliable method of determining impairment in positions the federal government deemed safety sensitive. The Skinner Court started its analysis by acknowledging that United States Department of Transportation Federal Railroad Administration regulations authorizing drug and alcohol testing implicated the Fourth Amendment.[108] Next, the Court recognized that “the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable.”[109] The Court went on to establish that “[w]hat is reasonable, of course, ‘depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.’[110] Therefore the constitutional permissibility of any particular search under the Fourth Amendment “‘is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.’”[111] The Court further opined the Fourth Amendment’s applicability in a criminal context and indicated that the procedures in the Warrant Clause of the Fourth Amendment often help the Court strike the balance of interests.[112] Typically, without a warrant backed by probable cause, a search is not reasonable.[113] However, the Court recognizes special circumstances sometimes belie the general warrant requirement and therefore allow certain searches in circumstances labeled “special needs.”[114] The Court held that “when ‘special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable. . . .” a warrant may not be necessary.[115] Further, “[w]hen faced with such special needs, [the Court] ha[s] not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable-cause requirements in the particular context.”[116]

In Skinner, the Court applied this balancing test by weighing the privacy interest of the employee against the interest of the government in protecting the general public and ultimately determined that drug testing was a search[117] and that this search was deemed reasonable under the Fourth Amendment analysis.[118]

In Skinner, the Court based its government interest analysis on the Department of Transportation Federal Railroad Administration prescribing drug tests “not to assist in the prosecution of employees, but rather ‘to prevent accidents and casualties . . . that result from impairment of employees by alcohol or drugs.’”[119] In this context, the Court recognized that protecting the employees and the traveling public was a cognizable interest requiring “’the exercise of supervision to assure that the restrictions are in fact observed.’”[120] With this interest established, the question before the Court is “whether the Government’s need to monitor compliance with these restrictions justifies the privacy intrusions at issue absent a warrant or individualized suspicion.”[121]

In view of the standardized nature of federal drug and alcohol testing administration, the limited discretion given to such administrators, the transient nature of alcohol and drugs in the human body, and the reliance on private railroads, the Court recognized that a warrant requirement should not apply as it would simply “frustrate the governmental purpose behind the search.”[122] When conducted without a warrant, a search “must be based, as a general matter, on probable cause to believe that the person to be searched has violated the law.”[123] When there is an absence of individualized suspicion, a search may still be reasonable “[i]n limited circumstances, where the privacy interests implicated by search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion.”[124] Though the Court in Skinner found that, under those circumstances the need for the provision of a urine sample outweighed the privacy interests implicated,[125] the Court recognized that the intrusive nature of urine was greater than that of blood or breath samples and that urine tests presented “[a] more difficult question. . . .”[126] Further, the Court acknowledged that, while “the regulations endeavor to reduce the intrusiveness of the collection process” in urine drug testing, “the procedures for collecting the necessary samples, which require employees to perform an excretory function traditionally shielded by great privacy, raise concerns not implicated by blood or breath tests.”[127]

The Court also determined that the procedure was justified because, though desired to protect the sample integrity, the regulations did not require direct observation procedures.[128] The regulations today require direct observation procedures[129] in quite a few instances: when a collector observed materials brought to the collection site or the employee’s conduct clearly indicates an attempt to tamper with a specimen[130]; when the collector observes that the temperature on the original specimen was out of range[131]; when the collector determines that the original specimen appeared to have been tampered with[132]; when the Medical Review Officer reports an invalid test result with no valid medical explanation;[133] when the original positive, adulterated, or substituted result had to be cancelled because a split test could not be performed;[134] when the laboratory reports to the Medical Review Officer that the specimen was negative-dilute with a creatinine concentration greater than or equal to 2 mg/dL but less than or equal to 5 mg/dL, and the Medical Review Officer reports the specimen to the employer as negative-dilute and that a second collection must take place under direct observation;[135] when the test is a return-to-duty test,[136] or when the test is a follow-up test[137] In addition, the Court indicated that the sample “is also collected in a medical environment, by personnel unrelated to the railroad employer. . . .”[138] The regulations today, however, allow representatives of the employer to conduct collections on employees.[139]

In recognizing that the foundation of the exception to the exception to the exception to the Fourth Amendment’s protection against searches,[140] is that the privacy interest “will be invaded no more than is necessary,” it is impossible to continue to justify the continuation of urine as a testing modality when a less invasive alternative such as oral fluid is both readily available and officially recognized as a viable alternative testing modality by the federal government.[141]

A few legislatures across the country, however, have begun pushing back against the expansion of workplace drug testing in favor of employee privacy rights; New York City and the State of Nevada have enacted legislation that prohibits pre-employment drug testing for Marijuana of all but certain safety-sensitive employees.[142] Many states are construing certain workplace drug tests as falling under so-called “lawful conduct” statutes which are prohibitions against adverse employment action for legal, off-duty conduct or product consumption of employees.[143]

CONCLUSION

The United States Department of Transportation drug and alcohol testing program is a necessary cog in the machine safeguarding the public from transportation-related accidents and injuries. This important governmental interest, however, punctures the individual’s Constitutionally protected privacy interest. The Supreme Court has recognized exception upon exception upon exception to the Constitution’s Fourth Amendment privacy rights, each designed to be more difficult to establish than the last. While the Court in Skinner held that the intrusion of a urine drug test on the protected privacy interests of regulated workers was justified at the time, the lack of acceptable, less-intrusive means of achieving the government’s interest was at the foundation of the majority’s holding. In light of the adoption and publication of considerably less-invasive oral fluid testing protocols, the calculus of the balancing test used in Skinner has changed and urine as a testing option can no longer be considered a justified intrusion upon the individual privacy interest of the federally-regulated employee.