Court Upholds Public Employee’s Discharge for Refusing to Submit to Drug Test

A federal appeals court upheld the City of Marion, Indiana’s termination of a “safety-sensitive” employee who refused to submit to a random drug test.  The Court concluded that the City’s random drug test did not violate the employee’s Fourth Amendment right against unreasonable searches. Krieg v. Seybold, 7th Cir., (March 21, 2007).

Robert Krieg was employed in the City of Marion’s Streets and Sanitation Department as a driver/laborer.  Krieg was a member of American Federation of State, County and Municipal Employees (“AFSCME”) Local No. 3063.  Krieg’s job required him to operate a one-ton dump truck, a dump truck with a plow, a front end loader, and a backhoe as part of his regular job duties. He also regularly patched holes in city streets, sealed cracks, plowed snow, loaded salt or sand into City vehicles, and directed traffic.  Krieg did not hold a commercial driver’s license (“CDL”), although most other employees in the Department did.

In June 2004, the City adopted a new employee handbook, which provided for random, unannounced drug testing for employees in “safety-sensitive positions.” The handbook stated that “a safety sensitive function is any duty related to the safe operation of City equipment during any period in which the City employee is actually performing, ready to perform, or immediately available to perform any safety sensitive functions.” The handbook also provided that any employee “who refuses to comply with a request for testing shall be removed from duty and their employment terminated.”

Prior to revision, the City’s handbook had required testing of employees in safety-sensitive positions who were required to operate a commercial motor vehicle and/or hold a commercial driver’s license.  The labor agreement between the City and the AFSCME local, authorized drug and alcohol testing, including random testing, “as per the current City policy."  The union filed a grievance and complained that the City did not negotiate with it in implementing the new handbook.

In October 2004, the Superintendent of the City’s Streets and Public Works Department announced that all Streets and Sanitation Department employees would be subjected to a drug test that day (with the exception of the Superintendent’s personal secretary).  Krieg, who had tested positive for drugs once before, refused.  He was told to leave and ultimately was terminated.  Krieg and his union filed a civil rights suit alleging his constitutional rights had been infringed.

Krieg argued that: (1) the City’s drug testing policy as applied to non-CDL employees violated his Fourth Amendment right to be free of unreasonable searches; and, (2) he was deprived of his job in violation of his due process rights.

For public employers, drug testing is a “search” within the meaning of the Fourth Amendment because it intrudes upon an individual’s expectation of privacy. The court stated that drug testing by public employers must be based upon individualized suspicion or wrongdoing to be considered reasonable. However, the U.S. Supreme Court has held that random drug testing may be constitutionally permissible when it “serves special governmental needs.” A “special need” exists when the government employee subjected to random drug testing holds a “safety sensitive” position.

In its decision, the court stated that courts “have widely permitted random drug testing of public employee who work with large, mobile equipment,” noting that random testing is permitted in the aviation industry, the rail, highway and water transportation industries, and that some courts have upheld random drug testing of heavy equipment operators, such as forklift operators, tractor operators, engineering operators and crane operators. Given the nature of the equipment Krieg operated as part of his regular job duties, the Court concluded that Krieg was a “safety sensitive” employee whose job duties were “fraught with such risks of injury to others that even a momentary lapse of attention [could] have disastrous consequences.”

Upon a finding that a “special need” exists, the U.S. Supreme Court has held that courts should “balance the individual’s privacy expectations against the government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.” To do so, the court considered the following factors:

(1) the nature of the privacy interest upon which the search intrudes;

(2) the character of the intrusion on the individuals’ privacy interest;

(3) the nature and immediacy of the governmental concern at issue; and

(4) the efficacy of the particular means used to address the problem.  After balancing all of these factors the Court concluded that the City demonstrated a governmental interest sufficient to justify random drug testing.