Carving out Privacy Protections in Reasonable Suspicion Drug Testing in Casados

The case Casados v. Denver involves an action challenging the constitutionality of a drug and alcohol testing policy based on reasonable suspicion.[1] In October of 1988, the mayor issued Executive Order 94 (“the Order”) which established a drug and alcohol testing policy for employees of the City and County of Denver.[2] The Order allowed supervisors to require employees to submit to blood or urine tests if the supervisors had reasonable suspicion that the employees were using illegal drugs or alcohol or were under the influence of drugs or alcohol.[3] The purpose of the Order was to ensure “safe, healthful, and efficient working conditions for Denver employees.”[4] Also, employees who tested positive or refused to be evaluated were subject to disciplinary action or, in the alternative, employees could be ordered to undergo treatment.[5]

In response, employees of the City and County of Denver (“plaintiffs”) filed a class-action suit challenging the constitutionality of the Order and requesting declaratory and injunctive relief barring its enforcement.[6]  The district court dismissed the plaintiffs’ complaint for failure to state a claim for relief and an appeal followed.[7] On appeal, the plaintiffs argued that the Order was unconstitutionally vague and that the district court erred in dismissing their complaint because the Order violates their Fourth Amendment rights to be free of unreasonable searches and seizures.[8]

The Court of Appeals of Colorado, Division Four found that the term “reasonable suspicion” was sufficiently clear to provide reasonable notice to persons of ordinary intelligence of what is prohibited and, therefore, the Order was not unconstitutionally vague.[9] However, the appellate court expressed that the problem with the Order was that it included all employees, whether they worked in a safety- or security-sensitive position or not.[10] The court explained that maintaining a safe workplace did not outweigh the constitutionally-protected privacy interests of employees in non-safety-sensitive positions.[11] The court of appeals held that the plaintiffs did state a justiciable claim (a claim the court could hear) in that the Order’s provisions for drug testing all employees based on reasonable suspicion of alcohol or drug use or impairment was facially invalid under the Fourth Amendment.[12]

Denver appealed the appellate court decision to the Colorado Supreme Court.[13] The Colorado Supreme Court addressed whether the court of appeals erred in its analysis of the plaintiff’s Fourth Amendment challenge to the facial constitutionality of the Order’s provisions on reasonable suspicion testing.[14]  In its analysis, the court acknowledged that the Fourth Amendment protects individuals from unreasonable searches by the government, even when the government acts as the employer.[15] The courts must balance the intrusion on an individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.[16]

Relying on previous decisions, the supreme court explained which types of testing have been found to be permissible and clarified the different protections afforded to employees based on: (1)  whether reasonable suspicion was based on on-duty or off-duty use or impairment and (2) whether the employee holds a safety- or security-sensitive position.[17] First, it is constitutional to subject all employees to mandatory urine tests based on reasonable suspicion of prohibited on-duty drug or alcohol use.[18] Second, it is not constitutional to subject employees who do not hold safety- or security-sensitive jobs to mandatory urine tests based only on reasonable suspicion of off-duty drug or alcohol use or impairment.[19] Third, it is constitutional to subject employees who hold safety- or security-sensitive positions to urine tests based only on reasonable suspicion of off-duty illegal drug use or impairment.[20]

The supreme court looked at the plain language of the Order to determine whether the Order provided for mandatory testing of employees who do not hold safety- or security-sensitive positions based only on a reasonable suspicion of off-duty alcohol or drug use.[21] The supreme court noted that the provisions of the Order did not limit their application to employees with safety- or security-sensitive positions and that other provisions did not specify whether they were based on on-duty or off-duty behavior.[22] However, the court concluded that the Order did not allow for testing of employees in non-safety- or security-sensitive positions based on reasonable suspicion of off-duty use for two reasons.[23] First, the Order’s primary focus was on the detection of on-duty drug use or impairment.[24] Second, when addressing off-duty alcohol and drug use, the Order refers to employees who hold public health and safety-sensitive positions.[25] As a result, the supreme court held that the provisions in the Order regarding drug testing based on reasonable suspicion were not facially invalid under the Fourth Amendment and that the plaintiffs failed to state a claim.[26]

In Casados, the supreme court takes the opportunity to clarify where the law stands regarding drug testing based on reasonable suspicion and an employee’s Fourth Amendment rights. The court explains what is permissible and the reasons as to why. This case makes the distinction that employees in safety- or security-sensitive positions can be subject to testing based only on off-duty drug use, without the need for reasonable suspicion of on-duty drug use as well. However, Colorado employees in non-safety sensitive positions cannot be subject to testing on reasonable suspicion of off-duty drug use alone.