Cutting Through Reasonable Suspicion Overreaches Like Yeutter: Delineating Employee Privacy and Employer Safety Interests in Drug Testing

What protections are afforded to employees subject to federally mandated drug testing programs? In 1986 an Executive Order barred drug use by federal employees who were on or off-duty and tasked executive agencies with developing a drug-free workplace plan.[1] In August 1988, the United States Department of Agriculture (USDA) responded to this order by implementing their own plan.[2] Responsible for representing over 800 Federal Nutrition Service (FNS) employees, the National Treasury Employees Union (NTEU) challenged several aspects of the USDA’s new plan, and “sought injunctions against random testing, reasonable suspicion testing, applicant testing, and post-accident testing.”[3] NTEU made a constitutional challenge on the basis that the drug testing was violative of the Fourth Amendment, but the court refused to enjoin reasonable suspicion testing, post-accident testing, or random testing of the FNS employees because the court found that the government’s interest in driver safety was a strong enough interest to override the employees’ legitimate privacy concerns.[4] NTEU also challenged the part of the plan that required visual observation of all employees ordered to undergo reasonable suspicion urinalysis.[5]

In National Treasury Employees Union v. Yeutter, the NTEU appealed the portions of the order from the district court which allowed the USDA to randomly drug test FNS motor vehicle operators and the portion which called reasonable suspicion testing of all FNS workers.[6] The Court began analyzing its previous decisions in Skinner v. Railway Labor Executives and National Treasury Employees Union v. Von Raab, in which it was determined that if “urinalysis serves special government needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s safety interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in a particular context.”[7] In balancing the interest in Yeutter, the court found that the government has an “interest in testing FNS drivers who are responsible for the safety of their passengers, however many in number.”[8]

In Yeutter, reasonable suspicion was based, “among other things,” on:

  1. Observable phenomena, such as direct observation of drug use or possession and/or the physical symptom(s) of being under the influence of a drug.
  2. A pattern of abnormal conduct or erratic behavior.
  3. Arrest or conviction for a drug-related offense, or the identification of an employee as the focus of a criminal investigation into illegal drug possession, use, or trafficking.
  4. Information provided either by reliable and credible sources or independently corroborated.
  5. Newly discovered evidence that the employee has tampered with a previous drug test.[9]

The court reflected on a previous Supreme Court decision in O’Connor v. Ortega, wherein the Court stated that warrantless searches of ordinary government employees can only be justified when a nexus to work responsibilities is shown.[10] In O’Connor, the Court wrote, “in the case of searches conducted by a public employer, we must balance the invasion of the employees’ legitimate expectations of privacy against the government’s need for supervision, control, and the efficient operation of the workplace.”[11]

The court in Yeutter noted that “other than the motor vehicle operators previously discussed, we know of no FNS employees whose jobs bring them within these safety, security, and drug interdiction exceptions.”[12] In fact, the court went on to state that “federal employment alone is not a sufficient predicate for mandatory urinalysis,” and that “the government may search its employees only when a clear, direct nexus exists between the nature of the employee’s duty and the nature of the feared violation.”[13]

The court in Yeutter determined that the part of the USDA Program which authorized “mandatory drug testing of FNS workers who do not hold safety- or security-sensitive jobs, absent reasonable suspicion of on-duty drug use or drug-impaired work performance,” was unconstitutional.[14] The same court was not able to conclude that the employee’s privacy concerns outweighed the government’s interest in testing employees reasonably suspected of being drug-impaired, while on duty.[15]

In Yeutter, the government’s own expert suggested that drug intoxication may produce “few overt signs,” and the court determined that reasonable suspicion of drug use, based on “abnormal conduct” alone, was not enough to justify testing of an employee.[16] Moreover, the court stated that it could not determine a sufficient government interest in violating an employees’ Fourth Amendment right to privacy by enforcing visual observation of an employee during a urinalysis.[17] The Department of Health and Human Services concluded that visual observation during a urinalysis is unnecessary to ensure accuracy unless there is “reason to believe that a particular individual may alter or substitute the specimen to be provided.”[18]

The Yeutter court held that the USDA was allowed to proceed with random urinalysis drug testing of FNS motor vehicle operators; however, the court remanded the case with instruction to modify the injunction “so as to prohibit reasonable suspicion urinalysis drug testing that is not supported by reasonable, articulable, and individualized suspicion of on-duty drug use or impairment.”[19] The court also instructed the lower court to enjoin the appellees from requiring visual observation of urination of employees who are ordered to undergo reasonable suspicion testing.[20]

Like so many other cases before it, this case solidifies the fact that federal employees who hold safety-sensitive positions are subject to mandatory drug testing in the interest of public safety. Furthermore, this case provides a great reference as to what constitutes a basis for establishing reasonable suspicion. Most importantly, Yeutter teaches that unless there is reason to believe that an employee will somehow compromise a urinalysis sample, employers and their service agents shouldn’t insist on a visual urine specimen collection, as doing so may infringe on employee’s Fourth Amendment privacy rights.

[1] Nat’l Treasury Emps. Union v. Yeutter, 918 F.2d 968, 970 (D.C. Cir. 1990). [2] Id. [3] Id. [4] Id. [5] Yeutter, 918 F.2d 968 at 975. [6] Id. at 970. [7] Id. at 971. [8] Id. at 972. [9] Yeutter, 918 F.2d 968 at 972-73. [10] Id. [11] O’Connor v. Ortega, 480 U.S. 709, 719-20 (1987). [12] Yeutter, 918 F.2d 968 at 974. [13] Id. [14] Id. [15] Id. at 975. [16] Yeutter, 918 F.2d 968 at 975. [17] Id. at 975-76. [18] See Mandatory Guidelines for Federal Workplace Drug Testing Programs 53 FR 11970 (1981). [19] Yeutter, 918 F.2d 968 at 977. [20] Id.



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