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Lawsuit challenges random drug tests

A Columbia lawyer says a state policy violates protections against unreasonable search and seizure.
Wednesday, May 4, 2005 | 12:00 a.m. CDT; updated 2:31 p.m. CDT, Saturday, July 19, 2008

Legal concerns have been raised over a policy by the Missouri Department of Mental Health to allow random drug testing of its 9,800 employees.

Columbia attorney Dan Viets filed a federal lawsuit against the department Monday, claiming the policy violates employees’ constitutional rights. Viets, who also represents the National Organization for the Reform of Marijuana Laws, filed the suit in the Federal District Court for Western Missouri on behalf of mental health employee Amy Proctor.

Viets said he is “virtually certain” that the department’s policy is illegal, and he wants the court to grant a permanent injunction to end the testing program, which took effect Sunday.

“Random drug testing is in particular illegal because it is a violation of the Fourth Amendment,” Viets said.

The Fourth Amendment of the U.S. Constitution protects people against unreasonable searches and seizures. Viets said the U.S. Supreme Court has already ruled that random drug testing is “unreasonable,” because the word “random” indicates a search without cause.

James M. Paul, Missouri Bar Association labor and employment representative, agreed that the department’s policy might be outside the limits of the law.

The mental health department’s “inclusion of ‘all employees’ in the group that may be randomly tested is suspect,” Paul said.

Other state departments conduct random drug testing of particular classes of employees. The Department of Social Services, for instance, tests only 12 of its 8,100 employees. Those 12 have commercial driver’s licenses, a class of workers whose right to privacy is outweighed by concerns for public safety.

The department has not filed a response to the suit. Jeanne Henry, director of public affairs for the mental health department, said the department will continue with the policy until instructed otherwise by its legal counsel. She declined to comment on the case.

“We feel confident we are on solid ground,” Henry said.

The new policy applies to all department employees, even those who work behind a desk and have minimal contact with clients. Ten percent of the employees will be tested annually. Dorn Schuffman, mental health department director, announced the policy April 6 as an effort “to provide a safe and secure living environment for the people we serve and for those whom we work with on a daily basis.

“It is the policy of this department to discipline — up to and including dismissal — employees who violate this drug-free-workplace policy,” Schuffman said in a letter to department employees.

Henry said the department has wanted to implement this policy since last fall. The decision was not in response to any drug-related problems or budget issues, but to “promote efficiency and quality of care. Any business should be constantly re-evaluating its practices,” she said.

As is standard for most government agencies, mental health department employees are subject to pre-employment drug tests. But until now, once they had been hired, they were not tested for drugs without specific cause.

In 1989, the U.S. Supreme Court, in two companion cases — Skinner v. Railway Labor Executives’ Association and National Treasury Employees v. Von Raab — held that random drug testing is allowed without specific cause when there is a “special need” that outweighs the individual’s privacy interest. In Skinner, the court interpreted public safety as a special need; the justices ruled in Von Raab that the government has a special need in drug testing customs agents who carry firearms or are involved in drug interdiction.

Federal courts have since had to interpret what constitutes a special need. Various courts have approved random drug testing for government employees who have direct, unsupervised contact with prison inmates, those who dispense controlled substances and even those who teach in public schools.

In establishing its policy, the mental health department considered a 2004 federal court decision in Michigan. The court in that case, UAW v. Winters, found that the government can justify the intrusion of privacy entailed by random drug tests “in certain limited circumstances.” The case involved Michigan state employees who deliver medical or psychological services to persons in state custody.

Though Missouri is not bound by the Sixth Circuit Court of Appeals’ decision, Paul said a Missouri federal court should use the same test to analyze whether the mental health department has a special need. He said it might be a stretch for the department to claim that a receptionist or file clerk could affect public safety.

If the state were to establish a case of special need, Paul said, the drug testing policy and procedures would still need to be scrutinized to ensure that the degree of intrusion is outweighed by benefit of removing illegal drugs from the workplace.

Viets said the policy could set a dangerous precedent.

“If the court considers that the Department of Mental Health’s alleged special needs meet the standard, then every state department meets those special needs,” he said. “I’m confident the Supreme Court did not intend for every government agency to be able torandomly test its employees.”


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