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

PART I: INTRODUCTION

PART II: BACKGROUND ON FEDERAL DRUG TESTING MODES

PART III: REGULATION OF OFF-DUTY CONDUCT

PART IV: ALTERNATIVES

PART V: EMPLOYEE’S PRIVACY INTEREST

PART VI: CONCLUSION

PART I: INTRODUCTION

Cindy has worked for herself as an owner-operator trucker for twenty years and has contributed to the economy over the decades through her long hauls across the country. For the safety of the public she is required by federal law to undergo mandatory urine drug testing as part of a random testing program. One day, she is called for a random drug test, but her urine specimen smells “off” by the collector of the specimen. Cindy was assigned male at birth, but now presents as female. Her collector is then required by the regulations to ask her to lower her pants to her knees, her shirt up to her ribcage and then directly watch her urinate into a cup. This invasive procedure is just one example of an unnecessary intrusion upon privacy interests and would never have been required if oral fluid were the primary mode of testing under federal regulations.

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]

PART II: 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]

PART III: 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]

PART IV: 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]

PART V: EMPLOYEE’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]

PART VI: 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.

References:

[1] Lawrence v. Texas, 539 U.S. 558, 578 (2003). [2] See U.S. Const. amend. IV.; see also United States v. Sharpe, 470 U.S. 675, 682 (1985) (indicating that “[t]he Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures.”). [3] United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985); see generally New Jersey v. T.L.O., 469 U.S. 325, 337-342 (1985). [4] Delaware v. Prouse, 440 U.S. 648, at 654; see also United States v. Martinez-Fuerte, 428 U.S. 543 (1976). [5] Id. [6] Skinner v. Ry. Labor Exec.’s Ass’n, 489 U.S. 602, 617 (1989). [7] Id. [8] See Mandatory Guidelines for Federal Workplace Drug Testing Programs—Oral/Fluid, 84 Fed. Reg. 57,554 (Oct. 25, 2019)  [9] See generally, Thomas P. Gies & Glenn D. Grant, Legalization of Marijuana: What It Means for Employer Drug Testing, 41 Emp. Rel. L. J. 35 (2015); 21 U.S.C.S. § 812 (2020). [10] See Armand Casolin, Comparison of Urine and Oral Fluid for Workplace Drug Testing, 40 J. of Analytical Toxicology, 479, 480 (2016). [11] Id. [12] Karen E. Moeller et al., Urine Drug Screening: Practical Guide for Clinicians, 83 Mayo Clinic Proc. 66, 67 (Jan. 2008). [13] Alain G. Verstraete, Detection Times of Drugs of Abuse in Blood, Urine, and Oral Fluid, 26 Ther. Drug Monit. 200, 202 (Apr. 2004). [14] See 49 C.F.R. § 40.67 (2019); see also, Office of Drug and Alcohol Policy and Compliance, U.S. Dep’t of Transp., DOT Urine Specimen Collection Guidelines 22 (2018); Mandatory Guidelines for Federal Workplace Drug Testing Programs, 82 Fed. Reg. 7,920, 7,947 (Jan. 23, 2017). [15] See Mandatory Guidelines for Federal Workplace Drug Testing Programs—Oral/Fluid at 57,554. [16] Mandatory Guidelines for Federal Workplace Drug Testing Programs—Oral/Fluid at 57,554. [17] Id. [18] Id. [19] Skinner, 489 U.S. at 617. [20] Lawrence, 539 U.S. at 578. [21] Omnibus Transportation Employee Testing Act of 1991, Pub. L. No. 102-143, 105 Stat. 917. [22] Exec. Order No. 12,564, 51 Fed. Reg. 32,889 (Sept. 15, 1986). [23] See 49 C.F.R. § 40 (2000); see also, 49 CFR § 382 (2001) (Federal Motor Carrier Safety Administration (FMCSA) drug and alcohol testing regulations), 49 C.F.R. § 219 (1989) (Federal Railroad Administration (FRA) drug and alcohol testing regulations), 14 CFR § 120 (2009) (Federal Aviation Administration (FAA) drug and alcohol testing regulations), 49 CFR § 655 (2001) (Federal Transit Administration (FTA) drug and alcohol testing regulations), 49 CFR § 199 (1988) (Pipeline and Hazardous Materials Safety Administration (PHMSA) drug and alcohol testing regulations), 46 CFR § 16 (1988) (United States Coast Guard drug and alcohol testing regulations). [24] See Amitava Dasgupta, A Health Educator’s Guide to Understanding Drugs of Abuse Testing 59 (2010). [25] See generally, 49 C.F.R. § 40 (2020); Office of Drug and Alcohol Policy and Compliance, U.S. Dep’t of Transp., DOT Urine Specimen Collection Guidelines (2018); Office of Drug and Alcohol Policy and Compliance, U.S. Dep’t of Transp., What Employers Need to Know About DOT Drug and Alcohol Testing (2015). [26] See 49 C.F.R. § 40.3 (2020) (defining “chain of custody” as “[t]he procedure used to document the handling of the urine specimen from the time the employee gives the specimen to the collector until the specimen is destroyed. This procedure uses the Federal Drug Testing Custody and Control Form (CCF) as approved by the Office of Management and Budget”). [27] Id. (defining “split specimen collection” as “[a] collection in which the urine collected is divided into two separate specimen bottles, the primary specimen (Bottle A) and the split specimen (Bottle B)”). [28] 49 C.F.R. § 40.81(a)-(c) (2019). [29] 49 C.F.R. § 40.121 (2019). [30] 49 C.F.R. § 40.193 (2019). [31] 49 C.F.R. § 40.67 (2019). [32] See generally, Dasgupta, supra note 24, at 49, 50-51. [33] Id. [34] See Stacy Hickox, “It’s Time to Rein in Employer Drug Testing” 11 Harv. L. & Pol’y Rev. 419 (2017). [35] See, e.g., Utah Code Ann. § 76-9-702.3 (2019); N.H. Rev. Stat. Ann. § 645:1-a (2019). [36] 49 C.F.R. § 40.3 (2020) (indicating that “[f]or purposes of drug testing under this part, the term employee has the same meaning as the term “donor” as found on CCF and related guidance materials produced by the Department of Health and Human Services”). [37] 49 C.F.R. § 40.41(e) (2020). [38] 49 C.F.R. § 40.41(f) (2020). [39] See Office of Drug and Alcohol Policy and Compliance, U.S. Dep’t of Transp., DOT Urine Specimen Collection Guidelines 7 (2018). [40] See 49 C.F.R. § 40.43 (2020); see also Office of Drug and Alcohol Policy and Compliance, U.S. Dep’t of Transp., DOT Urine Specimen Collection Guidelines 7, 14 (2018). [41] 49 C.F.R. § 40.43 (2020). [42] Id. [43] See Office of Drug and Alcohol Policy and Compliance, U.S. Dep’t of Transp., DOT Urine Specimen Collection Guidelines 7, 14 (2018). [44] 49 C.F.R. § 40.61(f)(4) (2020). [45] Andrew Easler, A Guide to Federal Regulations on Drug & Alcohol Testing p.47, FN2 (2019). [46] See, e.g., E.E.O.C. v. 704 HTL Operating, LLC, 979 F. Supp. 2d 1220 (D. N.M. 2013) (plaintiff alleged wrongful termination for refusing to remove her hijab). [47] Office of Drug and Alcohol Policy and Compliance, U.S. Dep’t of Transp., DOT Urine Specimen Collection Guidelines 14 (2018). [48] 49 C.F.R. § 40.61(f) (2020). [49] See Office of Drug and Alcohol Policy and Compliance, U.S. Dep’t of Transp., DOT Urine Specimen Collection Guidelines 14 (2018). [50] Id. [51] Mandatory Guidelines for Federal Workplace Drug Testing Programs, 82 Fed. Reg. 7,920, 7,939 (Jan. 23, 2017). [52] 49 C.F.R. § 40.191(a)(8) (2020). [53] See generally, Emmanuel Chamorey et al., A Prospective Multicenter Study Evaluating Skin Tolerance to Standard Hand Hygiene Techniques, 39 Am. J. Infection Control 6 (2011). [54] 49 C.F.R. § 40.193 (2020). [55] Office of Drug and Alcohol Policy and Compliance, U.S. Dep’t of Transp., DOT Urine Specimen Collection Guidelines 14 (2018) (stating that, “[i]f the employee refuses to wash his or her hands – after being directed to do so – this is a refusal to test.”). [56] 49 C.F.R. § 40.63(d) (2020). [57] Office of Drug and Alcohol Policy and Compliance, U.S. Dep’t of Transp., DOT Urine Specimen Collection Guidelines 20-22 (2018); 49 C.F.R. § 40.65(a)(1) (2020); 49 C.F.R. § 40.193(b) (2020). [58] Office of Drug and Alcohol Policy and Compliance, U.S. Dep’t of Transp., DOT Urine Specimen Collection Guidelines 20-21 (2018); 49 C.F.R. § 40.193(b) (2020). [59] 49 C.F.R. § 40.193(c) (2020). [60] Andrew Easler, Are Toilet Hats Mandatory for DOT Urine Specimen Collections?, DrugTestingCourses.com (Aug. 26, 2019), https://drugtestingcourses.com/news/are-toilet-hats-mandatory-for-dot-urine-specimen-collections/  (a “toilet hat” is a device placed directly on the toilet seat and utilized to assist donors with limited mobility and range of motion in providing a urine sample). [61] 49 C.F.R. § 40.193(d) (2020). [62] Office of Drug and Alcohol Policy and Compliance, U.S. Dep’t of Transp., DOT Urine Specimen Collection Guidelines 22 (2018); 49 C.F.R. § 40.67 (2020). [63] Office of Drug and Alcohol Policy and Compliance, U.S. Dep’t of Transp., DOT Urine Specimen Collection Guidelines 22-24 (2018). [64] Id. at 23. [65] Id. at 20-22. [66] See Mandatory Guidelines for Federal Workplace Drug Testing Programs at 7,924 (revising direct observation procedures for federal workplace drug testing to allow donors to be observed by a person whose gender matches their gender identity to ensure that collections are “conducted in a professional manner that minimizes discomfort to the donor”). [67] Id. [68] Id. [69] See 49 C.F.R. § 40.67(g) (2020) (indicating “[a]s the collector, you must ensure that the observer is the same gender as the employee. You must never permit an opposite gender person to act as the observer. The observer can be a different person from the collector and need not be a qualified collector.”); Office of Drug and Alcohol Policy and Compliance, U.S. Dep’t of Transp., DOT Urine Specimen Collection Guidelines 22 (2018) (indicating that “the observer must be the same gender as the employee; there are no exceptions to this requirement” but failing to indicate whether this gender refers to gender assigned at birth or presenting gender) [70] See Hickox, supra note 34, at 426 (indicating that “[e]ven with reliable drug testing processes, positive test results do not indicate impairment at work, because a drug test only establishes some prior use.”). [71] See Gies, supra note 9, at 36-41. [72] See generally Janice L. Miller et al., Employer Restrictions on Employees’ Legal Off-Duty Conduct, 44 Lab. L. J. 208 (Apr. 1993) (indicating that several states including New Jersey and Colorado have passed broad legislation to protect employees who engage in legal off-the-job activity as well as the federal law, the Americans with Disabilities Act, each supported by the employee right to privacy). [73] Nevada Assembly Bill 132 (2019); New York City Int. No. 1445A (2019). [74] See, e.g., Federal Railroad Administration, Post-Accident Toxicological Testing Instructions for Surviving Employees 13-14 (2012); see also, 49 C.F.R. § 219 APPENDIX C (2020) (indicating that an employee covered by Federal Railroad Regulations for drug and alcohol testing subject to post accident testing must “[p]rovide a blood specimen, which a qualified medical professional or technician will draw using a single-use sterile syringe.”). [75] Id. [76] Id. [77] 49 C.F.R. § 219 APPENDIX C. [78] See 49 C.F.R. § 40.33 (2020) (qualification requirements for urine specimen collection under United States Department of Transportation regulations which do not require the collector to be a qualified medical professional or technician); 49 C.F.R. 40.213 (2020) (qualification requirements for breath alcohol technicians under United States Department of Transportation regulations which do not require the breath alcohol technician to be a qualified medical professional or technician). [79] See Verstraete, supra note 13, at 201 (indicating detection times of drugs of abuse in blood are generally limited to 48 hours and under). [80] See 49 C.F.R. § 219 SUBPART C (2020); see also 49 C.F.R. § 219 APPENDIX C; see generally Federal Railroad Administration, Post-Accident Toxicological Testing Instructions for Surviving Employees (2012). [81] See, e.g., Fla. Stat. § 112.0455(13)(b)3.f.(IV) (2020). [82] See Kate Dolan et al., “An Overview of the Use of Urine, Hair, Sweat and Saliva to Detect Drug Use” 23 Drug & Alcohol Rev. 213, 214, 215-16 (2004) (indicating that “[h]air analysis offers the largest window of detection (7 – 100 + days)”). [83] Id.; Donna M. Bush, The U.S. Mandatory Guidelines for Federal Workplace Drug Testing Programs: Current Status and Future Considerations, 174 Forensic Sci. Int’l 111, 111, 118 (2008) (discussing the outlook of federal workplace drug testing programs and hair specimen testing as a potential alternative); see, e.g., Quest Diagnostics Frequently Asked Questions: Hair Testing (2018). https://www.questdiagnostics.com/dms/Documents/Other/hair_testing_faq.pdf (last accessed Jun. 15, 2020). [84] See Dolan, supra note 81, at 215. [85] See Lolita M. Tsanaclis et al., Workplace Drug Testing, Different Matrices Different Objectives, 4 Drug Testing & Analysis 83, 84-85 (2012). [86] 49 U.S.C.S. § 31306 (2020) (effective 10/1/2015 . . . “Not later than 1 year after the date of enactment of this Act, the Secretary of Health and Human Services shall issue scientific and technical guidelines for hair testing as a method of detecting the use of a controlled substance for purposes of section 31306 of title 49, United States Code.”). [87] 49 U.S.C.S. § 31306 (2020) (indicating “. . .Oct. 24, 2018 . . . provides: . . . Not later than 60 days after the date of enactment of this Act, and annually thereafter until the date that the Secretary of Health and Human Services publishes in the Federal Register a final notice of scientific and technical guidelines for hair testing . . . the Secretary of Health and Human Services shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report on—(1) the status of the hair testing guidelines; (2) an explanation for why the hair testing guidelines have not been issued; and (3) an estimated date of completion of the hair testing guidelines”). [88] U.S. Dep’t of Health and Human Servs. Substance Abuse & Mental Health Servs. Admin., United States Department of Health and Human Services Report on the Status of Hair Testing Guidelines (2019). [89] Id. [90] Id. (no update as of June 15, 2020). [91] See Mandatory Guidelines for Federal Workplace Drug Testing Programs—Oral/Fluid at 57,585. [92] Id. [93] Id. at 57,554 (indicating that “[t]he scientific basis for the use of oral fluid as an alternative specimen for drug testing has now been broadly established and the advances in the use of oral fluid in detecting drugs have made it possible for this alternative specimen to be used in federal programs with the same level of confidence that has been applied to the use of urine”); see U.S. Dep’t of Health & Human Servs., Clinical Drug Testing in Primary Care, 20 (2012) (indicating that, during the past decade, the use of oral fluid for drug testing has been validated by a large body of scientific literature”). [94] See Dolan, supra note 81, at 214 (placing the detection period for most drugs of abuse between one and three days, except cannabis); Casolin, supra note 10, at 480 (placing the detection period for most drugs of abuse between 12 to 48 hours, “although cocaine has been detected for up to 9 days in chronic users.”); Hickox, supra note 34, at 424 (indicating that “[s]aliva can also be used to detect prior use of drugs in the previous twenty-four to forty-eight hours.”); Tsanaclis, supra note 84, at 84 (“. . . [S]aliva produce[s] a transient spectrum of drug use for a relatively short period reflecting use that occurred hours before sample collection (24-72 h) depending on the drug.”); U.S. Dep’t of Health & Human Servs. Note 107, at 20 (indicating “[i]n general, drug testing of oral fluids detects drug use during the previous 24–48 hours, regardless of the route of administration . . ., although the selection of cutoffs plays an important role in the length of the detection window.”) [95] See Dolan, supra note 81, at 216 (indicating “the correlation between saliva and free fraction drug concentrations in plasma is high for many drugs, allowing results to be related to psychoactive effect”); but see Hickox supra note 34, at 426 (concluding that “[e]ven with reliable drug testing processes, positive test results do not indicate impairment at work, because a drug test only establishes some prior use . . . .” and that “relying solely on a drug test to predict potential future impairment is overly inclusive and . . . . [a]ctual impairment can be identified much more accurately by direct observation of behavior as well as through the use of various impairment and skills tests.”). [96] Mandatory Guidelines for Federal Workplace Drug Testing Programs—Oral/Fluid, at 57,562 (“One commenter recommended that oral fluid be restricted based on the reason for the test due to the short window of detection compared to urine (and hair), the benefits of observed collection, and the ability to identify the parent or active drug that was used.”). [97] See U.S. Dep’t of Health & Human Servs., note 107, at 20. [98] See Mandatory Guidelines for Federal Workplace Drug Testing Programs—Oral/Fluid at 57,585. [99] See Dolan, supra note 81, at 216. [100] See 49 U.S.C.S. § 31306 (effective 10/1/2015 . . . “Not later than 1 year after the date of enactment of this Act, the Secretary of Health and Human Services shall issue scientific and technical guidelines for hair testing as a method of detecting the use of a controlled substance for purposes of section 31306 of title 49, United States Code.”). [101] Mandatory Guidelines for Federal Workplace Drug Testing Programs—Oral/Fluid. [102] Id. at 57,554. [103] U.S. Const. amend. IV. [104] Skinner, 489 U.S. at 617. [105] Id. (indicating “[i]t is not necessary to our analysis in this case, however, to characterize the taking of blood or urine samples as a seizure of those bodily fluids, for the privacy expectations protected by this characterization are adequately taken into account by our conclusion that such intrusions are searches”). [106] Id. [107] Skinner 489 U.S. at 617 (quoting Von Raab, 816 F. 2d at 175). [108] Skinner, 489 U.S. at 618-19. [109] Id. at 619; see also Sharpe, 470 U.S. at 682. [110] Id. (quoting Montoya de Hernandez, 473 U.S. at 537). [111] See Skinner, 489 U.S. at 619 (quoting Prouse, 440 U.S. at 654). [112] Id. [113] See, e.g., Payton v. New York, 445 U.S. 573, 586 (1980); see also, Mincey v. Arizona, 437 U.S. 385, 390 (1978). [114] See Skinner, 489 U.S. at 619. [115] Id. (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)). [116] Id. [117] Id. at 617. [118] Id. [119] Skinner, 489 U.S. at 620-21 (quoting 49 C.F.R. § 219.1(a) (1987)). [120] Id. at 621 (quoting Griffin, 483 U.S. at 875). [121] Id. at 622. [122] Id. at 623. [123] See T.L.O., 469 U.S. at 340. [124] Skinner, 489 U.S. at 624. [125] Id. [126] Id. at 626. [127] Id. [128] Id. [129] See discussion supra Section II.H. See also supra notes 14, 31, 59-66 and accompanying text. [130] 49 C.F.R. § 40.67(c)(2). [131] 49 C.F.R. § 40.67(c)(3). [132] 49 C.F.R. § 40.67(c)(4). [133] 49 C.F.R. § 40.67(a)(1). [134] 49 C.F.R. § 40.67(a)(2) (2020). [135] 49 C.F.R. § 40.67(a)(3) (2020). [136] 49 C.F.R. § 40.67(b) (2020). Return-to-Duty testing is conducted after an employee who tests positive has undergone evaluation and treatment by a designated Substance Abuse Professional (SAP) and has signed a return to work agreement but must pass a drug test before returning to work in a safety-sensitive position. See 49 C.F.R. § 40.305 (2020). [137] 49 C.F.R. § 40.67(b). Follow-up testing is conducted after passing a return-to-duty drug test and is used to monitor the sobriety of the employee for a period of typically up to two years. See 49 C.F.R. § 40.305; 49 C.F.R. § 40.307 (2020); 49 C.F.R. § 40.309 (2020). [138] Id. at 626-27. [139] See 49 C.F.R. § 40.31(c) (2020) (indicating that even a direct supervisor may conduct the collection if no other collector is available). [140] The first exception being with a warrant supported by probable cause, the requirement of which is then excepted in exigent circumstances when obtaining a warrant is impractical but still supported by probable cause, the requirement of which is then excepted again in the event that the government’s interest in the search is outweighed by the level of intrusion against the individual’s privacy interest, but no more than is necessary to achieve that interest. [141] Id. [142] See, Nevada Assembly Bill 132; New York City Int. No. 1445A. [143] See, e.g., N.Y. Lab. Law 201-d(b)-(c) (prohibiting employment discrimination based on an individual “legal use consumable products” or “legal recreation activities” outside work hours and off the employer’s premises); Ky. Rev. Stat. Ann.§ 3440.040 (prohibiting discrimination in employment because an individual is a “smoker or non-smoker”); 820 Ill. Comp. Stat. Ann. § 55/5-5 (prohibiting discrimination against persons who use lawful products outside the workplace); Tenn. Code Ann. §15.2-1504.



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