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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 602

## Text

a
ee

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.

li

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

18

36
38

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)

iv

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);

23

32
34
23
34

31

33

9, 38

23

23

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)

vi

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,
36

il

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,
16

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 :
l
Introduction to Forensic Toxicology, Cravey and
Baselt, eds. Biomedical Pub (1981) 12,
17

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

ix

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,
37

ADMINISTRATIVE AND EXECUTIVE
MATERIALS

"Drug-Free Federa! Workplace”, Exec.
Order 12,564, 51 Fed. Reg. 32889 (1986).

21
"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

10

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).

11

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.

12

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).

13

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

3

14

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

15

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

16

(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

17

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

_

18

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

19

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).

20

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

21

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

22

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.

23

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:

24

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. -
(c) Procedures for how Ss ng y
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 .

‘
a,

25

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

i

26

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.

27

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
elt I “sacle CREP CRONE ST © D thw

ae mel

28

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

29

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

-
;
;

30

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

31

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

32

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.
(c) A list of the drugs tested;
(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

33

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

a

34

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:

35

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

36

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.

37

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

:

38

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.

39

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.

40

Respectfully Submitted,

Des
(515)-277-2774

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1431%3A19. Public record. Not legal advice.