Amicus Curiae Brief — Skinner v. Railway Labor Executives' Assn.

Supreme Court brief1989

Ask Donna

What actually matters in this document.

Text

No. 87-1555

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

JAMES H. BURNLEY, IV, SECRETARY

DEPARTMENT OF TRANSPORTATION, ET AL.

PETITIONERS

RAILWAY LABOR EXECUTIVES ASSOCIATION, ET AL.

RESPONDENTS

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF BENDINER-SCHLESINGER LABORATORY,

THE AMERICAN INSTITUTE FOR DRUG DETECTION,

AND THE NATIONAL SUBSTANCE ABUSE CONSULTANTS

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

William J. Judge* David G. Evans

431 South Dearborn 30 Cold Soil Rd.

Chicago, IL 60605 Lawrenceville, NJ 08648

(312)-939-7709 (609)-896-3923

Michael M. Judge

2325 Carpenter, Suite |

Des Moines, [A 50311

(515)-277-2774

* Counsel of Record

Attorneys for Amici Curiae

QUESTION PRESENTED

Whether the Ninth Circuit erred when it determined that the

Federal Railroad Administration drug testing regulations were

unreasonable in scope because the test results are incapable of

detecting drug intoxication or impairment and because the

results are unreliable.

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIAE

FACTUAL SUMMARY

SUMMARY OF ARGUMENT

— Ta Ninth Circuit's determination

regarding the reasonableness of FRA

Regulation Sec. 219 was in error

A. When determining the

reasonableness of the FRA Drug

Testing Program, the court

ignored or misunderstood relevant

scientific principles

1 The purpose of FRA

Section 219

Il. The FRA Regulatory scheme is legally

defensible

III. Positive Drug Test Results from a

legally defensible program pose am

unacceptable risk to a Common carrier

IV. Conclusion

iii

CASES

Bishop v. Wood, 426 U.S. 341 (1976). '

Board of Regents v. Roth, 408 US 564 (1972)

Brother of Maintenance of Way Employees

v. ey Northern R. R., 802 F. 2d 1016

(8th Cir. 1986)

Brown v. Smith, 132 NY Misc. 2d 686, 505

N.Y.S. 2d 743 (1985)

Bulkin v. Western Kraft East, Inc. 422 F. Supp.

437 (E.D. Pa., 1976)

Burnley v. R.L.EA., (Petition for Writ of

Certiorari to the U.S. Court of Appeals for the

Ninth Circuit No.87-1555, March 1988 at 2-4).

Capua v. City of Plainfield, 643 F. Supp. 1507

(D.N.J. 1986)

Caruso v. Ward, 131 NY Ad 2d 214, 520N.Y:S.

2d 551 (A.D. 1, Dept. 1987)

Cleveland Board of Education v. Loudermill,

470 U.S. 532 (1985)

Copeland v. Philadelphia Police Dept., 840 F.2d

1139 (3rd Cir. 1988)

Division 241 A.T.U. v. Suscy, 538 F.2d

1264, 7th Cir.) cert denied, 429 U.S. 1029

(1976)

Dornak v. Lafayette General Hospital, 399 So.

2d 68 (La. 1981)

Everett v. Napper, 632 F. Supp. 1481

(N.D. Ga.1986)

Feliciano v. City of Cleveland , 661 F. Supp.

578 (N.D. Ohio 1987)

Franklin v. Office of Court Administration,

2 IER Cases (BNA)783 (NY S. Ct..

1987)

Gibson v. Berryhill, 411 U.S. 564 (1973).

Heron v. McGuire,803 F. 2d 67 (2nd Cir. 1986)

Hester v. City of Milledgeville, 598 F. Supp.

1456 (MD Ga. 1984)

Houston Belt and Terminal Rigging Co. v.

Wherry, 548 S.W. 2d 743 (Tex. Civ. App.

1977) cert denied 434 U.S. 962 (1977).

Joint Anti-Fascist Refugee Committee v.

McGrath, 341 U.S. 123 (1951).

Jones v. McKenzie, 833 F. 2d. 335 (D.C.

Cir. 1987) petition for certiori, 56 U.S.L.W.

2303 U.S. April 22, 988) No. 87-2706) 7,

Jones v. Pennsylvania Board of Probation

and Parole, 103 Pa C. 602, 520 A.2d 1258

(Pa. Cmwilth. 1987)

Lahey v. Kelly 71 NY 2d 135, 518

NE 2d 924, 524 N.Y.S.2d 30 (Ct. App. 1987)

Lovvorn v. City of Chattanooga, 647 F. Supp.

875 (E.D. Tenn. 1924), aff'd 3 IER Cases

(BNA) 673 (6th Cir. May 23, 1988)

McLeod v. City of Detroit, 39 FEP Case

225 (E.D. Mich 1985)

= v. Hunter, 809 F.2d 1302 (8th Cir.

1987);

9, 38

National Treasury Employees Union v.

Von Raab, 816 F.2d 170 (Sth Cir. 1987)

stay denied 107 S. Ct. 2479 (1987), cert

granted 56 U.S.L.W. 3590, (Feb. 29, 1988)

(No. 86-1879)

New Jersey v. TL.O., 469 U.S. 325 (1985)

O'Brien v. Papa Gino's of America, Inc. ,

780 F.2d 1067 (1st Cir. 1986)

Paul v. Davis , 424 U.S. 693 (1976)

Peranzo v. Coughlin, 675 F. Supp.

102 (S.D. N.Y. 1987)

Perry v. Sindermann, 408 US 593 (1972)

Policeman's Benevolent Assn. of

New Jersey v. Township of Washington

F.2d , 3 IER Cases (BNA) 699,

(3d Cir. June 21, 1988)

Railway Labor Executives’ Assn.. v.

Burnley, 839 F. 2d 575 (9th Cir. 1988)

Rodriguez v. Pennsylvania Board of

Probation and Parole, 101 Pa C. 289, 516

A2d 116, (Pa.Cmwith., 1986)

Rushton v. Nebraska Public Power District,

653 F. Supp. 1510 (D. Neb. 1987), affd

3 IER Cases (BNA) 257, (8th Cir.

April 14, 1988)

Shoemaker v. Handel, 795 F. 2d 1136 (3rd.

Cir. 1986) cert denied, 107 S. Ct. 577 (1986)

Slochower v. Board of Education, 350 U.S.

551 (1956)

Terry v. Ohio, 392 U.S. 1(1968)

Turner v. Halliburton Co., 240 Kan 1,

722 P.2d 1106 (Kan. 1986);

United States v. Ford, 23 MJ 331 (CMA 1987)

United States v. Hagan, 24 MJ 571

(NMCMR 1987)

Vasquez v. Coughlin, 118 N.Y.A.D. 2d

897,499 N.Y.S. 2d 461 (A.D. 3 Dept. 1986)

STATE STATUTES

Califomia, Senate Bill No. 1611

Mlinois Clinical Laboratory Act sec. 8-101, ( Ill.

Rev. Stat. ch. 111 1/2 par 628-101 )

Iowa, Sec. 7305, HF 469, L 1987, (effective

July 1, 1987)

Maine, Bill L.D. 156

Minnesota are 7y 181. 950-957, (effective

September 1, 19

Minnesota, Ch. 3880 (1987) §181.954(4)

, Assembly Bill 2850

Utah, Utah Code Annotated, Sec. 34-38-i,

(effective 1987)

Vermont, Vermont Annotated T-21 Sec. 511

(effective September 1987)

OTHER AUTHORITIES

Chiang, /mplications of Drug Levels

in Body Fluids: Basic Concepts, 73 NIDA

Research Monograph 62 (1986)

12,

vii

Comment, Constitutional Law:

Urinalysis and the Public Employer - Another

Well Delineated Exception to the Warrant

Requirement? 39 Okla. L. Rev. 257, 271-71

(1986); 21

Council Report, Scientific Issues

in Drug Testing, 25 J.A.M.A. 3110

(June 1987) 11,12,

13,14,16

Blanke, Accuracy In Urinalysis,

73 NIDA Research Monograph (1986); DHHS

Publication Number (ADM) 87-1481). 11

Boone, Reliability of Urine Drug

Testing, Q and A, 258 J.A.M.A. 2587 (1987) +

Donegan and Angarola, Drug Testing

in the Workplace: A Clash of Rights , Legal Times,

August 4, 1986 15

Down on Drugs: A Newsweek Poll

Newsweek, August 11, 1986, p. 16. 20

Ellis, Excretion Patterns of Chronic

Cannabinoid Users, 38 Clin.

Pharm. & Ther. 57 (November 1985) 16

Evans, Drug Testing, Work Performance,

and EAP’s: Recent Legal Guidelines

The Almacan, December 1986 at 33 22

Goodman and Gilman, Pharmacological

(New York: McMillan &

Co. 1985) 37

Hawks, Analytical Methods, 73 NIDA Research

Monograph 30 (1986) 13, 1 “

15, 1

Higginbotham, Urinalysis Testing Programs

in Law Enforcement" F.B.1. Law. Enf. Bulletin,

Nov. 1986 at 25, 28 21

Hoyt, Drug Testing in the Workplace -

are Methods Legally Defensible"? 258 Journal of

the American Medical Association, 504 (July 1987)

Vol. 258, No. 4, at 504. 14, 15,

vill

Imwinkelried, The Identification of Original,

Real Evidence 61 Mil. L. Rev. 145 at 159. 26

Imwinkelried,

_ Scientific Evidence (Charlottesville,

VA: The Michie Co. 1982) at 83, 89,90 26

Lamar, Rolling Out the Big Guns: The First

Couple and Congress Press the Attack

on Drugs Time, September 22, 1986, p. 26; 20

Manno, Interpretation of Urinalysis Results, -

73 NIDA Research Monograph 54 (1986) 16

McBay, Drug-Analysis Technology - Pitfalls

and Problems of Drug Testing, 33 Clinical

Chemistry 33B-39b (1987) 17

McBay and Mason, Cannabis: Pharmacology

and Interpretation of Effects, 30 J. of Forensic Sci.,

615 (July 1985) 37

McBay, Urine Testing For Marijuana Use,

249 J.A.M.A. 881 (1983) l :

Introduction to Forensic Toxicology, Cravey and

Baselt, eds. Biomedical Pub (1981) 12,

Most Favor Mandatory Testing, Poll Concludes,

The Davis Enterprise, September 15, 1986,

p. 2; 20

Rothstein, Screenin oe Workers for Drugs: A

Legal and Ethical Framework, 11 Employee

Rel L.J. 422, 423 (1985). 21

Rothstein, Medical Screening of Workers,

81 (BNA Books 1984) 36

Soderstrom, Marijuana and Alcohol Among

1023 Trauma Patients, 123 Arch. Surg.

733-739 (June 1988) 37

USA Today, Survey, March 1986 20

Wisotsky, The Ideology of Drug Testing,

11 Nova Law Rovio 763, 774 (1987) 10

FEDERAL REGULATIONS

Federal Railroad Administration, Control of Alcohol and

Drug Use, 49 C.F.R. sec. 219.401 (1987)

passim 23, 24, 25,

26, 27, 29,

31, 32, 35,

ADMINISTRATIVE AND EXECUTIVE

MATERIALS

"Drug-Free Federa! Workplace”, Exec.

Order 12,564, 51 Fed. Reg. 32889 (1986).

"Mandatory Guidelines for Federal Workplace

Drug Le Programs", 53 Fed. Reg.

11970 (1988). passim 11, 24,

25, 26

28, 29

31,

32,35

MISCELLANEOUS

Rule 401, Federal Rules of Evidence 17

Rule 402, Federal Rules of Evidence 17

Rule 702, Federal Rules of Evidence 17

Brief of the College of American Pathologist,

as Amicus Curiae, in support of Respondent,

N.T.E.U. v. Von Raab, Supreme Court of

the United States, No. 86-1879, submitted

June 18, 1988. 28

2 Restatement of Torts 2d, §314A (1) (a) 36

52 NIDA Research Monograph, 102-103,

118-119, 127, 137, 142, 146 (1984) 37

INTEREST OF AMICI CURIAE

Since 1843, Amicus Curiae, Bendiner and Schlesinger,

Inc., has been providing high quality medical services. The

toxicology department laboratory provides drug testing

services to clients throughout New York State and is certified

under Title XVIII of the Social Security Act, which is

administered by the federal Department of Health and Human

Services. This certification includes periodic inspections of

the laboratory and participation by the laboratory in a

proficiency testing program. The laboratory is fully licensed

for forensic toxicology by the state of New York.

Amicus Curiae, American Institute for Drug Detection,

(AIDD), with facilities located in Rosemont, Illinois, and

Dallas, Texas, is a forensic toxicology laboratory licensed in

the states of Dlinois and Texas and certified under Title X VIII

of the Social Security Act. AIDD is an accepted participant in

both the National Institute on Drug Abuse (NIDA) laboratory

certification program and the College of American Pathology

(CAP) laboratory accreditation program.

Amicus Curiae, National Substance Abuse Consultants,

Inc.,is a national network of affiliated attorneys and

professional consultants from the various disciplines which

impact substance abuse in the workplace and on coliege

campuses. NSAC has counseled local, state, and federal

governments, businesses of all sizes, and colleges, regarding

all aspects of confronting substance abuse incluc +g detection,

prevention, intervention, policy and procedure development,

employee assistance and student assistance programs,

treatment and the law.

Amici believe that their experience and expertise will be of

assistance to the Court in this case.!

FACTUAL SUMMARY

This matter is before the court on a grant of a writ of

certiorari (June 6, 1988), appealing the Ninth Circuit Court of

Appeal's reversal of the District Court's grant of summary

judgement to Petitioner, the Secretary of the Department of

1 Pursuant to Rule 36 of the Court's Rules, the parties have

consented to the filing of this brief. The letters of consent

have been filed with the Clerk of this Court,

Transportation (839 F. 2d 575). At issue is the Railway Labor

Executives’ Association (R.L.E.A.) challenge to the Federal

Railway Administration (FRA) regulations mandating blood

and urine tests of railroad employees. The challenge arises

under the search and seizure clauses of the fourth

amendment.

Determining that the drug tests constitute a fourth

amendment search, the Ninth Circuit concluded that

“particularized suspicion is essential to finding toxicological

testing of railroad employees justified at its inception." (839

F.2d,587). The cowst based this conclusion primarily upon its

determination that, secause railroad employees are historically

not the focus of FRA Regulations, the "administrative search

exception” to the fourth amendment's warrant requirement

does not apply (839 F. 2d, 585). Therefore, absent

individualized suspicion, the required drug tests failed to

satisfy the first prong of the two-prong fourth amendment

reasonableness test which requires that a search be justified at

its inception.

The Ninth Circuit further concluded that the testing

program was not reasonably related to the "professed purpose"

of the tests , "because the tests cannot measure current drug

intoxication or degree of impairment." (839 F. 2d, 588). The

FRA Regulations requiring drug tests did not, therefore,

satisfy the second prong reasonable-in-scope requirement of

the fourth amendment standard.

SUMMARY OF ARGUMENT

Amici take issue before this Court with the Ninth Circuit's

finding that the FRA drug testing program was unreasonable

in scope . It is Amici's position that the Ninth Circuit's

preoccupation with the issue of impairment resulted in its

misinterpretation of the FRA primary purpose in issuing the

challenged regulations. The Court mistakenly concluded that

the FRA purpose for issuing the drug testing guidelines was to

detect current drug intoxication and impairment of railroad

employees. However, it is evident from the court's own

account of the Regulations’ development that employee and

public safety were paramount. 839 F.2d, 589.

Because the Ninth Circuit misunderstood the primary

purpose of the regulations, it declared the drug test results to

be unreliable in detecting drug intoxication or employee

impairment. The Court concluded that the FRA program,

based upon such test results, is unreasonable in scope. Oddly,

the Ninth Circuit found that these same test results, when

combine with individualized suspicion "should withstand

scrutiny under the scope prong of the reasonableness

standard" and "would provide a sound basis for appropriate

disciplinary action." 839 F.2d, 589.

Amici urge this Court to recognize that it is generally

acknowledged among forensic toxicologists that current drug

test methodologies, properly utilized, can accurately and

reliably detect recent drug use. Neither the toxicology

methods employed nor test reliability depend upon the manner

in which an individual is selected (randomly, during scheduled

medical examination or based upon individualized suspicion).

Likewise, the testing methods utilized in the laboratory will not

be altered depending upon the nature of employer discipline

imposed in response to the results.

The Ninth Circuit improperly allowed its preoccupation

with impairment to color its judgement. The court failed to

recognize that the common carrier employer has a right and a

duty to take all necessary steps to ensure the safety of

employees and the public and to protect its property. Drug

tests, conducted pursuant to an otherwise legally defensible

substance abuse program, are reliable and reasonably related to

the common carrier's safety goals.

This Court is urged to recognize the Ninth Circuit's error

and to acknowledge the scientific communities’ general

acceptance of the testing methods involved.

ARGUMENT

I. THE NINTH CIRCUIT'S DETERMINATION

REGARDING THE REASONABLENESS OF FRA

REGULATION SECTION 219 WAS IN ERROR.

A. WHEN DETERMINING THE REASONABLENESS OF

THE FRA DRUG TESTING PROGRAM, THE COURT

IGNORED OR MISUNDERSTOOD RELEVANT

SCIENTIFIC PRINCIPLES.

The Ninth Circuit determined that urinalysis mandated or

authorized by the FRA regulations constitutes a search under

the fourth amendment to the United States Constitution 2. As

such, the drug tests must satisfy both prongs of the well

established two-prong fourth amendment reasonableness test;

first, the search must be "justified at its inception ; and second,

the search as actually conducted must be "reasonably related in

scope to the circumstances which justified the interference in

the first place." New Jersey v. T.L.O., 469 U.S. 325, 341

(quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)) The Ninth

Circuit found that the FRA authorized drug tests 3 failed both

prongs of this two-prong test. First, drug testing is not

2 The Fourth Amendment to the United States Constitution

States, in relevant part:

"The right of the people to be secure in their persons,

houses, papers and effects , against unreasonable

searches and seizures, shall not be

violated..."

(U.S. Constitution, amend. IV)

3 It is noted that the FRA Regulations challenged by RLEA

also authorize blood-alcohol testing under the same

circumstances which might give rise to urinalysis for drug

use. Because the Ninth Circuit did not specifically address

the blood-alcohol tests, Amici will limit their discussion to

the court's conclusions regarding drug testing.

justified at its inception absent individualized suspicion.

Second, the drug tests were not reasonably related to the

purpose of the FRA drug testing program “because the tests

cannot measure current drug intoxication or degree of

npaleuent.” 839 F.2d, 588 .

The court then concluded, however, that these same drug

tests would be appropriate and “would provide a sound basis

for appropriate disciplinary action" when combined with

individualized suspicion. 839 F. 2d, 589. The court's

reasoning reflects a misunderstanding of both the purpose of

the FRA drug testing program and the scientific principles

involved. 4

4 Although Amici limit their present discussion to the Ninth

Circuit's erroneous determination of the scope and reliability

of the drug tests, we nonetheless note our support. for the FRA

position that the testing program was reasonable at its

inception. The FRA regulations are not ultimately intrusive.

Subpart 219, (49 CFR Part 219) does not mandate or authorize

random testing of employees. Moreover, Amici submit that

the Ninth Circuit committed reversible error when it

concluded that the “administrative search exception" to the

fourth amendment did not apply. Amici urge this Court to

adopt the conclusion and reasoning of the Third Circuit Court

of Appeals in its June 21, 1988 decision, Policeman's

Benevolent Association of New Jersey, Local 318 et al..v. The

Township of Washington, _

F.2d. ___, 3 IER Cases (BNA) 699, 704 (June 21, 1988), in

which the court found the “administrative search exception

applicable to a random drug testing program. Accord,

1. THE PURPOSE OF FRA SECTION 219

As discussed in the Solicitor General's petition for writ of

certiorari before this court, the principal purpose of the

challenged regulations is to ensure employer and public safety.

That purpose and the evidence supporting the need for the

challenged regulations will be adequately discussed by the

Solicitor General before this court. Amici will not attempt to

expand upon the Government's position but note our

concurrence. It was the court's misunderstanding of the

Rushton v. Nebraska Public Power District, ____F.2d.

, 3 IER Cases (BNA) 257 (8th Cir. April 14,

1988);National Treasury Workers Union v. Von Rabb 816 F.2d.

170 (Sth Cir. 1987), stay denied, 107 S.Ct. 2479 (1987) cert.

granted 56 U.S.L.W. 3590, (Feb 29, 1988); Division 241

A.T.U. v. Suscy, 538 F. 2d, 1264 (7th Cir. 1976), cert. denied

429 U.S. 1029 (1976). McDonell v. Hunter, 809 F.2d. 1302

(8th Cir. 1987) The Ninth Circuit denied the application of

this exception after concluding railroad employees were not

the focus of the FRA Regulatory scheme. However, it is

certain that all railroad employees clearly play a vital role in

transportation safety. Anyone who denies the significance of

that role or that operating employees are the focus of the FRA

Regulatory scheme does so at a distance from reality. See,

Jones v. McKenzie, 833 F.2d. 335 (D.C. 1987), petition for

certiorari filed, 56 U.S.L.W. 2303. (where the Court stated

that it would be “patently irresponsible” for school officials

to ignore suggestions of drug use among transportation

department employees and that drug testing aimed at ensuring

safety of students was a strong government concern; the court

Stated that any suggestion to the contrary “would be ‘

preposterous”.) ij

Regulatory safety purpose which led, in part, to the erroneous

conclusion that the test methods are unreliable and

unreasonable in scope.

2. THE SCIENTIFIC PRINCIPLES OF DRUG TESTING

Like many others faced with determining drug testing

issues, the Ninth Circuit was misled into a discussion of drug

impairment. That issue is raised by those philosophically

opposed to drug testing as a means of diverting attention away

from the fact that use of a prohibited substance has been

detected5.

Not even opponents of drug testing, however, deny that

current forensic procedures, such as those required by the

5 Many opponents of drug testing have even suggested that

drug tests are a subterfuge to criminal law enforcement. See

Wisotsky, The Ideology of Drug Testing, 11 NOVA L. Rev. 763,

764. Yet Amici are unaware of any drug testing program in

the school or employment setting which provides for test .

results to be forwarded to the criminal prosecuting authority.

On the contrary, most regulations, statutes and employer

programs specifically prohibit such action. See, Manditory

Federal Guidelines for Federal Workplace Drug Testing

Programs, DHHS, 53 Fed. Reg. 11986; Minnesota Ch. 388 L,

1987, §181.954 (4).

Mandatory Federal Guidelines (53 Fed. Reg. 11970-11989)

and the instant FRA Regulations, are sufficiently accurate and

sensitive to detect the ingestion of prohibited substances at

some recent prior time (McBay, Urine Testing For Marijuana

Use, 249 J.A.M.A. 881 (1983); Dubowski, Drug -use

Testing: Scientific Perspectives, 11 Nova L. Rev. 415, 509,

548-549 (Winter 1987); See also, Boone, Reliability of Urine

Drug Testing, Q and A, 258 J.A.M.A. 2587 (1987). It is also

universally acknowledged that the technology of screening for

drugs in urine has greatly improved in recent years. (Council

Report, Scientific Issues In Drug Testing, 257 J.A.M.A. 3110

June 1987)."The goal of urine drug testing may be stated as

the reliable demonstration of the presence, or absence, of

specified drugs or metabolites in the specimen-that is, the

production of a valid positive or negative result." Blanke,

“Accuracy In Urinalysis," NIDA Research Monograph 73

(1986); DHHS Publication Number (ADM) 87-1481.

A clear understanding of drug testing requires

comprehension of the relevant laboratory procedures, the

results and the probative value of those results.

a. Laboratory Procedures

Basically, urine ® can be analyzed by a number of methods,

including immunoassays, thin-layer chromatography, gas

chromatography, high performance liquid chromatography and

gas chromatography/mass spectrometry (GC/MS).

Introduction to Forensic Toxicology, Cravey and Baselt ,eds.,

Biomedical Pub. (1981). The laboratory procedures used to

analyze urine for drugs are divided into two phases: screening

tests and confirmatory tests.

The most widely accepted technique used to screen urine

for drugs are immunoassays. These techniques are based on

the ability to produce antibodies to various drugs. (Council

Report, Scientific Issues in Drug Testing, 257 J.A.M.A.

3110, 3112 (June 1987) hereinafter cited as "Council

Report"). Immunoassays are based on the principle of

competition between the labelled and unlabeled drug for

6 Drugs ave eliminated from the body through metabolism

and excretion as either unchanged drug or as metabolities (a

compound produced from chemical changes of a drug in the

body) through urine, bile, sweat, saliva and expired air. In

general, drug in the urine is more concentrated than other

bodily fluids such as plasma. See, Chiang, /mplications of

Drug Levels in Body Fluids: Basic Concepts, 73 NIDA Research

Monograph 62, 69-71 (1986).

binding sites on a specific antibody. (Hawks, Analytical

Methodology, 73 NIDA RESEARCH MONOGRAPH 30

(1986) hereinafter cited as “Hawks"). Antibodies are protein

substances with sites on their surfaces to which specific drugs

or drug metabolites will bind. The two most commonly

employed immunoassay techniques are the

"Radioimmunoassay" and the “Enzyme-multiplied

immunnoassay technique" ("EMIT"). Council Report, at

3112.

Radiommunoassay is based on the principle that a drug

labelled with a radioactive substance competes for the antibody

binding site with the same drug not labelled with a radioactive

substance. The more unlabeled drug there is in the sample, the

less radioactive drug binds to the antibody. Council Report, at

3112. Known amounts of radioactive-labelled drug are added

to a urine sample with known amounts of antibodies. The

mixture is allowed to incubate during which time the labelled

drug and unlabeled drug compete for binding sites on the

antibody. A gamma counter is then used and the presence or

absence of a drug is indicated by the amount of radioactivity

found. A positive specimen is identified when the radioactive

count is equal to or greater than those of a positive control

prepared in the same manner as that of the unknown urine.

Hawks, at 30-31.

EMIT is used more commonly than the RIA technique. In

the EMIT assay,the label on the antigen (drug) is an enzyme

(protein) that produces a chemical reaction for detection of

drugs. This detection is based on the competition between

unlabeled drug or drug metabolite and labelled drug or drug

metabolite for binding sites on the antibody. The drug in the

subject's urine competes for the limited number of antibody

binding sites and thereby proportionally increases the total

enzyme activity. The enzymatic activity is, therefore, directly

related to the concentration of the drug present in the urine.

Hawks, at 31.

It is generally agreed that all specimens screened "positive"

must be confirmed by some scientific method other than that

used to screen. See, Hawks, at 30; Council Report, at 3113;

Boone, Reliability of Urine Drug Testing: Q and A, 258

J.A.M.A. 2587; Hoyt, Drug testing In the Workplace - Are

Methods Legally Defensible? 258 J.A.M.A. 504 (1987)

hereinafter cited as "Hoyt". The consensus confirmatory

method is through chromatography. Hoyt, at 509.

Chromatography is a method of analysis in which the various

compounds in a biological specimen can be separated by a

partitioning process. This process requires, (1) a stationary

phase, which may be a solid or a liquid on an inert support

having a large surface area and (2) a mobile phase of liquid or

gas. Substances are carried by the mobile phase through a

column or across a plate, where the stationary phase interacts

with the specimen to cause a separation of the various

components. After separation, a detection method

distinguishes the components for identification and

measurement. Separation of the components of the specimen

mixture containing substances of various molecular types is

based on the time spent by each component in each phase —

(stationary and mobile) of the chromatographic system.

Hawks, at 32.

Several chromatographic techniques exist including thin-

layer chromatography (TLC) gas-liquid chromatography

(GLC) and high-pressure liquid auwenguay (HPLC). It

is generally agreed among forensic scientists however that the

combination of GLC with the detector, mass spectrometry

(MS) is the most specific and sensitive method available.

Hoyt, at 507.

Gas chromatography/mass spectrometry (GC/MS)

combines the chemical separating power of the gas

chromatograph with the molecular identifying power of the

mass spectrometer. The gas chromatograph separates the

compound and the mass spectrometer breaks it down into

electrically charged ion fragments. “Different compounds

break down into different fragment patterns and, like

fingerprints, no two fragment patterns are alike." Council

Report at 3113; Hawks, at 35.

b. The Procedure Results

It is generally agreed among forensic toxicologists that a

specimen screened positive by an immunoassay technique and

confirmed positive by GC/MS provides presumptive evidence

of recent past use. Hawks, at 36; Manno, Interpretation of

Urinalysis Results 73 NIDA Research Monograph 54 tea

Ellis, Excretion Patterns of Chronic Cannabinoid Users, 38

Clin. Pharm. & Ther. 572 (November 1 985); McBay, Urine

Testing for Marijuana Use, 249 J.A.M.A. 881; Dubowski, at

548-549; Introduction to Forensic Toxicology, Cravey and

Baselt, eds. (Biomedical Publications California 1981,

hereinafter cited as "Cravey".) How those results shall be

used by employers or in a court proceeding are a concern to

the forensic scientist only to the point of explaining the manner

in which the tests resuits were reached. Cravey, at 152 So

long as the forensic scientist can establish that the methods and

procedures employed in adducing the result were performed

and followed in accordance with the generally accepted

standards of the discipline in question, the test results should

be allowed as evidence.(Fed. R. Ed. 401, 402, 702.)

What the Ninth Circuit failed to recognize is that there

exists unanimity among forensic scientists, including those

philosophically opposed to drug testing employees, (McBay,

Drug Analysis Technology--Pitfalls and Problems 33 Clin

Chem. 33 B-39b (1987)) that immunoassay results, confirmed

by another more sensitive scientific method is accurate and

reliable in detecting drug use. The FRA regulations in issue

here require immunoassay screening, confirmed by another

more sensitive scientific method. Contrary to the Ninth

Circuit's conclusion, such methods are reliable. See Rushton

y. Nebraska Public Power District, 653 F. Supp 1510 (D.

Neb. 1987), aff'd 3 IER Cases (BNA) 257 (8th Cir. April 14,

1988); National Treasury Workers Union v. Von Raab, 816

F. 2d, 170 (Sth Cir 1987), cert granted 108 S. Ct. 1072

(1988).

Il. THE FRA REGULATORY SCHEME IS

LEGALLY DEFENSIBLE

Defensibility of a drug testing program depends not only

upon the reliability of the analytic procedure utilized but

compliance with several other factors including demonstration

of employer need for drug testing, adoption by the employer

of a comprehensive program which includes rehabilitation,

notice of testing provided to applicants and employees,

adoption of written policy and procedures, adoption of proper

chain-of-custody procedures, proper written record keeping

procedures, laboratory quality assurance and quality control

programs, retention and use of qualified laboratory personnel,

adoption and compliance with confidentiality procedures and

result reporting requirements and retention of specimens to

permit independent testing.

1. The employer must establish a need for an anti-drug

program:

In Caruso v. Ward 131 N.Y. Ad. 2d 214, 520 N.Y.S. 2d

551 (AD 1, Dept. 1987), the court held that police officers

could not be randomly tested for drugs without some

overriding governmental interest. Such interest did not exist

where there was no showing of a drug problem among the

police officers to be tested, and where there were statistics

showing that few police officers had tested positive for drugs

is the past. But see, Policeman's Benevolent Association of

New Jersey, Local 318 v. Township of Washington , 3 IER

Cases BNA 699 (3d Cir. 1988). Amici submit that in the

instant case a need for drug testing railroad employees has

been established. See Burnley v. RL.E.A., Petition for Writ

of Certiorari (87-1555) from the U.S. Court of Appeals for

the Ninth Circuit No. 87-1555, March 1988 at 2-4). See also,

Division 241 A.T.U. v. Suscy, 538 F2d 1264, 1267, (7th

Cir.), cert denied, 429 U.S. 1029 (1976).

A need for an anti-drug program can be established by

statistics such as those regarding drug related accidents and

employee theft, health, disability, or by public safety concerns

found in individual work settings.In this case, such needs are

not hard to document. Opinion polls of employees show that

they recognize the need for drug testing. USA Today Survey,

(March 1986). A general opinion poll conducted by the

Gallop Organization indicated that most Americans favor

testing all employees for drug use. Down on Drugs: A

Newsweek Poll, Newsweek, August 11, 1986 p. 16.

Another poll found that 69 percent of the employee-

respondents favored periodic drug testing by their company,

and 81 percent were willing to take a drug test even if they

could refuse. Lamar, Rolling Out the Big Guns: The First

Couple and Congress Press the Attack on Drugs, Time,

September 22, 1986, p. 26; Most Favor Mandatory Testing,

Poll Concludes, The Davis Enterprise, September 15, 1986,

p. 2.

As the above polls indicate, employees realize that a co-

worker's drug use can pose a serious problem to workplace

safety and productivity. Drug use threatens the viability of

their companies and, thus, ultimately threatens their jobs.

Even some legal commentators who are generally not in

favor of drug testing concede that public safety concerns may

establish a need for,or at least legitimize, drug testing.

Comment, Constitutional Law: Urinalysis and the Public

Employer - Another Well Delineated Exception to the Warrant

Requirement? 30 Okla. L. Rev. 257, 171-72 (1986);

Higginbotham, F.B.I. L. Enf. Bull, at 25, 28; Rothstein,

Screening Workers for Drugs: A Legal and Ethical

Framework, 11 Employee Rel. L. J. 422, 423 (1985):

2. The employer should have a comprehensive anti-drug

program which includes rehabilitation:

In Shoemaker v. Handel, 795 F. 2d, 1136 (3 Cir. 1986)

cert denied, 107 S. Ct. 577 (1986), the lower federal court

upheld the New Jersey Racing Commission's drug testing

program for jockeys, in part, because rehabilitation was

offered to jockeys who test positive for drugs. Various

proposed or enacted state statutes, and President Reagan's

1986 Executive Order “Drug Free Federal Workplace”,

provide some form of substance abuse evaluation or

rohabilieation as an alternative to serious discipline if an

employee tests positive. Executive Order, No. 12,564, 51

Fed. Reg. 32889 at 32889. As examples of current state laws

see, lowa, Sec. 7305, HF 469, L. 1987, effective July 1,

1987; Minnesota, Paragraphs 181. 950-957, effective

September 1, 1987; Utah, Utah Code Annotated, Sec. 34-38-

1, effective 1987; Vermont, Vermont Annotated T-21 Sec.

511, effective September 1987; for pending bills see, Maine,

Bill L.D. 156; California, Senate Bill No. 1611; New Jersey,

Assembly Bill 2850.

Rehabilitation may begin with the referral of an employee

to an evaluation and treatment program initiated through a

company employee assistance program (EAP). Evans, Drug

Testing, Work performance, and EAPs: Recent Legal

Guidelines:, The Almacan, (December 1986) at 53. Although

rehabilitation is desirable,it must be noted that a positive drug

test result does not, per se, prove that the employee is an

addict, and thus handicapped. The test shows drug use, not

addiction. Current drug users are not entitled to handicapped

protection. 29 USC Sec. 706 (7) (B); 29 USC 793 and 794.

McCleod v. City of Detriot, 39 FEP Cases 225 (ED. Mich.

1985); Heron v. McGuire 42 FEP Cases 31 (2d Cir. 1986);

Copeland v. Philadelphia Police Dept. No. 87-1256 (3rd Cir.

March 7, 1988). The Federal Railroad Administration

regulations provide an opportunity for evaluation and

counseling. 49 CFR 219.401.

3. The employer should provide employees with proper

notice, in the form of a written policy, prior to the

implementation of a drug testing program:

This guideline was affirmed in the case of Capua v. City of

Plainfield , (643 F. Supp. 1507 D.N.J. 1986) where city

officials conducted a surprise drug test on firefighters and

police. The court held that before a drug testing program is

implemented, its existence must be made known, its methods

clearly enunciated, and its procedural and confidentiality

safeguards adequately provided for. See also McDonell v.

Hunter, 809 F.2d 1302 (8th Cir. 1987); Feliciano v. City of

Cleveland, 661 F.Supp. 578 (N.D. Ohio 1987). Employees

who may be required by an employer to submit to a drug test

should be provided a written policy statement which contains:

eral statement of the employer's policy on

pe be Ew drug use which will include identifying both

the grounds on which an employee may be required to

submit to a drug test and the actions the employer may

take against an employee on the basis of a positive

confirmed drug test result or other violation of the r

employer's drug use policy (see, 49 CFR 219.201 an

219.301); —_—

eneral statement concerning confidentiality ;

eR 314.403 (b) (2); 53 Fed. Reg. 11986. -

coctin een

ROE co to being tested:49 CRR 219.309 (b)

(2); 53 Fed. Reg. 11985-6;

i h drug testing may occur

(d) Circumstances under whic wan Seva res _

j ing on a reasonable suspicion,

pen caper som brag is. (see, 49 CFR 219.201 and

219.301);

uences of refusing to submit to a drug

sce. 49 CFR 219.213 and 219.505); ;'

(f) Information regarding ties for assessmen

and rehabilitation if an employee has a positive

confirmed test result. (49 CFR 219.405) _

(g) A statement that an employee who received a

positive confirmed drug test result may explain or

contest the accuracy of that result, (49 CFR 219.211

and 219.503; 53 Fed. Reg. 11985). i

(h) A list of all drugs for which the employer migh

test. Each drug should be described by its brand name

or common name, as licable, as well as its

chemical name. (see, 49 CFR 219.101,219.501(c)

and 219.501, and 53 Fed. Reg. 11980.);

(i) A statement regarding any applicable collective

bargaining agreement or contract.

An employer should post the notice in an appropriate and

i ies

conspicuous location on the employer's premises and cop .

‘

of the policy should be available for inspection by employees

during regular business hours.

An employer who conducts job applicant drug testing

should notify the applicant, in writing, upon application and

prior to the collection of the specimen, that the applicant may

be tested for the presence of drugs or their metabolites. (See,

49 CFR 219.501 (b)).

4. The employer should have written specimen collection

procedures that preserve the probative value of the specimen:

FRA Regulations (49 CFR 219) and applicable Mandatory

Federal Guidelines (53 Fed. Reg. 11979) meet this standard.

They provide that specimen collection will be documented with

procedures including the labeling of specimen containers to

reasonably preclude the likelihood of erroneous identification

of test results. Specimen collection, storage, and

transportation to the testing site should be in a manner which

reasonably precludes specimen contamination or adulteration.

Ce aoe

a | Senses memati se

49 CFR 219.204, 219.205, 219.305; and 53 Fed. Reg 11980,

11987. See also, Imwinkelried, The Methods of Attacking

Scientific Evidence (Charlottesville, VA: The Michie Co.

1982) at 83, 89-90; Imwinkelried, The Identification of

Original Real Evidence, 61 Mil. L. Rev. 145 at 159.

5. The employer and laboratory should keep records which

include: chain of custody, operation and maintenance

documents, records of procedures, worksheets regarding

equipment operation, and quality control:

Proper record keeping ensures the probative value of a drug

test result, (United States v. Ford , 23 MJ 331 (CMA 1987));

United States v. Hagan 24 MJ 571 (NMCMR 1987); Brown

». Smith , 505 NYS 2d 743 (Sup. 1985) and it ensures that

the laboratory performs tests in a non-negligent manner.

Dornak v. Lafayette General Hospital, 399 So. 2d 268

(La.1981); Bulkin v. Western Kraft East, Inc., 422 F. Supp.

437 (E.D. Pa, 1976); and see.49 CFR 219.205, 219.307,

219.19, 2219.21; 53 Fed. Reg. 11980-11982, 11987 ; For an

example of State law requirements, see Illinois Clinical

Laboratory Act, Ill. Rev. Stats., ch. 111 1/2, par. 626-101 et

seq.

6. Qualified laboratory personnel who are properly trained:

The FRA Regulations (49 CFR 219.307) require that all

railroads testing employees must ensure that testing is

undertaken only by an independent laboratory "proficient in

the testing of urine for alcohol and drugs of abuse”

Moreover, the laboratory employed by any railroad aie

—? participate in an external quality control program that

involves the analysis of samples submitted by a reference

laboratory..." 49CFR 219.307.

~ ae en ee

ae mel

Since the Ninth Circuit decision in this case on February

11, 1988, the final, “Mandatory Guidelines for Federal

Workplace Drug Testing Programs" were issued. (53 Fed.

Reg. 11970-11989, issued April 11, 1988). The Mandatory

Guidelines require all laboratories testing covered employees

to employ a qualified individual with documented scientific

qualifications in analytical forensic toxicology who will

assume professional, organizational, educational and

administrative responsibility for the laboratory. Minimum

educational and experience qualifications are set forth. (53

Fed Reg 11982). Many states also mandate strict education

and experience guidelines for qualified laboratory directors and

staff as a condition of initial licensing and renewal. (See,

[Illinois Clinical Laboratory Act , Ch. 111 1/2, par. 626 - 101;

see, also CAP guidelines for forensic urine drug testing

("FUDT") laboratory accreditation program, discussed at pp.

1-2, 25-28, brief of Amicus Curiae , CAP, now before this

Court in National Treasury Workers Union v. Von Raab. 816

F.2d 170 (Sth Cir. 1987) stay denied 107 S. Ct. 2479 (1987);

cert granted 56 USLW 3590 (Feb. 29, 1988) (No. 86-1879).

7. Laboratory participation in accreditation, quality control,

and proficiency testing programs:

The Ninth Circuit cited Professor Kurt M. Dubowski's

extensive scientific discussion of drug testing (11 Nova L.

Rev. 415 (1987)) in support of its finding that blood and urine

tests are not reasonably related to the stated purpose of the

tests. (839 F. 2d 588) One of Professor Dubowski's

recommendations was that a comprehensive and universal

nationwide system of regulation of non-medical drug-use

testing should be established forthwith, preferably in the form

of federal licensure with provisions for alternative accreditation

under standards identical to those for federal licensure. Since

the publication of Professor Dubowski's recommendation in

1987, the NIDA certification program ( 53 Fed Reg 11970-

11989) and CAP accreditation program have begun. 49 CFR

219.307. Also, many state laboratory licensure requirements,

such as those found under the Illinois Clinical Laboratory Act ,

(Ill. Rev. Stats., ch. 111 1/2 , par. 628-101 et seq.) provide

nn es ew Re

;

stringent controls covering such areas as capacity to test the

commonly preferred classes of drugs, initial and confirmatory

tests, personnel qualifications, quality assurance and quality

control, security procedures and chain-of-custody

requirements. In addition, they may cover specimen accession

and storage , documentation, result reporting, confidentiality,

and written standard operating procedures, as well as written

daily and periodic preventative maintenance procedures aiid

analytical balance certification procedures. As @ practical

business matter, any laboratory not participating in either

NIDA or CAP programs will be driven from the competitive

market. Furthermore, any laboratory not maintaining

compliance with state licensing requirements will be subject to

revocation proceedings. See, [llinois Clinical Laboratory Act,

sec 8-101.( Ill. Rev. Stat. Ch. 111 1/2, par. 628-101.).

8. The employer and laboratory must have strict

confidentiality and reporting procedures:

All information, interviews, reports, statements,

raemoranda, and test results, written or otherwise, received by

the employer through its drug testing program should be

considered confidential communications. See 49 CFR 219.11

(c)(2); 219.403(b)(2); 219.403 (c) 1); 219.209; 219.307(c);

and 53 Fed. Reg. 11987. Strict confidentiality procedures not

only protect employees, they protect employers. Houston Belt

and Terminal Rigging Co. v. Wherry, 548 S. W. 2d 743

(Tex. Civ. App. 1977) cert denied 434 US. 962 (1977).

Although employers may have a qualified privilege to release

accurate, although derogatory, information about an employee

to persons who have a need to know the information, this

privilege may be lost if it is released with malice, recklessness,

or if the scope of the privilege is exceeded. Turner v.

Halliburton Co., 240 Kan. 1, 722 P. 2d 1106 (Kan. 1986);

O'Brien v. Papa Gino's of America, Inc. 780 F2d 1067 (ist

Cir. 1986).

9. The laboratory should disclose to the employer a written

test result within five working days:

All laboratory reports of a test result should, at a minimum,

State;

(a) The name and address of the labora

that

performed the test and the positive identification of the

fe eee

person tested. Rodriguez v. Pennsylvania Board of

Probation and Parole 516 A2d 116, (Pa.

Commonwealth, 1986), Jones v. Pennsylvania Board

of Probation and Parole S20 A2d 1258 (Pa

Commonwealth 1987); 49 CFR 219.307 (c);

(b) any positive confirmed drug test results of a

imen which screened positive on an initial test, or

a negative drug test result on a specimen.

(d) The type of tests conducted for both initial and

confirmation tests and the cut-off levels of the tests;

(e) The shall not disclose the presence or

absence of any physical or mental condition or of any

drug other than the specific drug and its metabolites

that an employer requests to be identified. 29 USC

701 et seq.

10. Maintenance of specimens for confirmation or re-test:

Both the NIDA certification program and the CAP

accreditation program specify specimen maintenance

requirements. 49 CFR 219.211(d); 219.303(a)(5);

219.307(a)(2);219.305(d); 53 Fed. Reg. 11983. The

laboratory industry is increasingly aware of the potential

litigation problems resulting from failure to store specimens

whose results could be subjected to challenge. See, Franklin

v. Office of Court Administration, 2 IER Cases (BNA) 783

(NY S Ct. 1987), (where applicant was denied the position of

court officer following a positive drug test, court ordered re-

examination of application without the drug test results after

applicant was denied opportunity to have the specimen

independently tested prior to its being destroyed).

11. Analysis of specimens by a reliable scientific method:

Amici’s position with regard to this requirement of a

legally defensible drug program has been adequately discussed

in Section I of this brief.

12. Opportunity for employee to challenge the test results:

Due Process:

Employees generally enjoy rights entitling them to due

process protection when faced with discharge or discipline.

Joint Anti-Fascist Refugee Committee v. McGrath , 341 U.S.

123, 168 (1951). These rights may derive from the right to

contract, to engage in the common occupations of life, and

maintain one's employment and standing in the community.

Bishop v Wood, 426 U.S. 341 (1976). Board of Regents v.

Roth , 408 U.S. 593 (1972); Paul v. Davis , 424 U.S. 693,

701-712 (1976). Public employees may have a property

interest in continued employment if they can establish a

legitimate claim of entitlement . Board of Regents v. Roth , at

576-77; See also, Perry v. Sindermann, 408 US 593 (1972).

Employee due process rights can also be established by statute

or contract. Slochower V. Board of Education, 350 U.S. 551

(1956). The right to due process applies in public ayia

drug testing matters. Lovvorn v. City of Chattanooga,

Supp. 875 (ED. Tenn. 1986), affd 3 IER Cases (BNA)

(6th Cir. May 23, 1988); Everett v. Napper, 833 F 150

(11th cir 1987); Shoemaker v. Handel, 795 F2d 1136 -

Cir. 1986) cert denied, 107 S. Ct. 577 (1986); Hester v. City

of Milledgeville, 598 F. Supp. 1456 (MD. Ga. 1984). :

The basic due process requirements that apply in drug

testing are; 1) notice of drug testing prior to — “

the testing program, 2) test accuracy including having an ci

test confirmed by 4 method of greater or equal sensitivity; 3)

an opportunity for the employee who tests positive to have 4

hearing or other chance to contest the test results. agi

Board of Education Vv. Loudermill, 470 U.S. 532 (1985);

Gibson v. Berryhill , 411 U.S. 564 (1973).

If an employee tests positive, the following measures

should be taken:

delivered to the ;

employee who has eens this period, the

d be permitted by the employer to have a portion

ie expense.

to contest th hearing to explain

219.305, € results. 49 CFR 219.211, 219.503, ft

Courts have largely upheld the accuracy of drug test

results arising from Programs which, like the instant FRA

Regulations, comply with these twelve Criteria. Peranzo y

Coughlin, 675 F. Supp. 102 (S.D. N.Y. 1987), hes

v. Coughlin, 118 N.Y.A.D. 2d 897, 499 N.Y.S. 2d 461

(A.D. 3 Dept, March 6, 1986), N.T_E.U. y. Von Raab

816 F2d 170 (Sth Cir. 1987), stay denied 107 S. Ct. sie

(1987), cert. granted 56 U.S.L.W. 3590, February 29

1988; Lahey v. Kelly 71 N.Y. 24 135, 518 NE 24 924

524 N.Y.S. 2d 30 (Ct. App. 1987). |

et, al, iM

Ill. POSITIVE DRUG TEST RESULTS FROM A

LEGALLY DEFENSIBLE PROGRAM POSE AN

UNACCEPTABLE RISK TO A COMMON

CARRIER

Generally, employers have a right and duty to provide

employees with a safe work environment.’ Common carriers,

such as those governed by the FRA Regulations are bound by

a "special duty" to protect passengers against unreasonable

risk of physical harm. 2 Restatement of Torts 2d, Sec. 314A

(1) (a).

Any positive drug test of an employee covered by FRA

Regulations possesses an unaccepiable risk to the common

carrier employer. While impairment levels of drug use cannot

now be predicted, no responsible scientist can deny that illicit

drug use affects behavior. Chiaig, /mplications of Drug

Levels in Body Fluids: Basic Concepts , 73 NIDA Research

Monographs 62, 63 (1986), where the authors indicate that

their studies show "most abused drugs act on the central

7 For a general discussion of the rights and duties arising

from the employment relationship see, Rothstein, Medical

Screening of Workers, $1 (BNA Books 1984), where the author,

at 71, suggests that a duty to screen employees for intoxicants

cannot be questioned.

nervous system and produce effects on mood, perception,

behavior and performance", citing, Goodman and Gilman,

Pharmacological Basis of Therapeutics, (New York: McMillan

& Co. (1985)); see also, Soderstrom, Marijuana and Alcohol

Among 1023 Trauma Patients, 123 Arch. Surg. 733-737

(June 1988) (where the study showed that 34.7% of subjects

tested had used marijuana); Mason and McBay, Cannabis:

Pharmacology and Interpretation of Effects, 30 J. of Forensic

Science, 615 (July 1985) (where the authors agree that

perceptual, cognitive, affective and behavioral changes are

produced when cannabis is ingested, but they deny that

detection of impairment levels is possible); 52 NIDA Research

Monograph at 102-103, 118-119, 127, 137, 142, 146 (1984)

Because forensic scientific methods can reliably detect use

and because the common carrier employer is entitled to take

reasonable steps to limit liability, requiring employees

involved in serious or fatal accidents or those suspectew of

drug use to submit to urinalysis is patently reasonable.8 See,

8 It must be noted that, although the Ninth Circuit stated that

drug testing, combined with suspicion of drug use, “should

withstand scrutiny” under the fourth amendment, “subpart D"

of the FRA Regulations (49 CFR §219.301, “Testing for a

Jones v. McKenzie, 833 F.2d 335 (D.C. Cir 1987). The

Ninth Circuit's conclusion that drug testing was not reasonable

must, therefore, be reversed

1vV CONCLUSION

Forensic scientific methods, properly employed in an

otherwise legally defensible substance abuse program, are

accurate and reliable. The Ninth Circuit committed reversible

error when it allowed itself to become aligned with those

philosophically opposed to drug testing and who ignore wie

drug tests can do. A determination that drug testing 1s

unconstitutional because toxicological methods cannot

determine levels of intoxication or impairment begs the

question: when employee drug use is detected, what may an

employer with a special duty of care do to limit his liability?

Undoubtedly, drug testing is a reasonable employer response

to the risks posed by employee drug use.

Those who condemn the science of drug testing because,

they disagree with the manner in which individuals are selected

reasonable cause”) was found to be unreasonable. 839 F. 2d

589.

or disciplined may be compared to those of ancient times who

found it appropriate to “kill the bearer of bad tidings.” We

urge this Court allow “the messenger” to live.

For the reasons set forth herein, Amici respectfully

requests that this Court to resolve this matter in favor of

Petitioner, James H. Burnley, IV, Secretary of the Department

of Transportation, and reverse the decision of the Ninth Circuit

Court cf Appeals.

Respectfully Submitted,

Des

(515)-277-2774

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.