Labor & Employment Law

Testing for illegal drugs

By Harvey Randall, Esq.

Testing for illegal drugs
Kerns v Sewage Authority, CA3 263 F.3d 61

In the Kerns case, one of the elements considered by the court was the impact of an individual's agreement to submit to testing for illegal drugs as a condition of his or her employment by a public employer.

Gregory Kerns applied for the position of superintendent of a waste-water treatment facility operated by the Chalfont-New Britain Township Joint Sewage Authority. What eventually proved to be a critical element in the court's disposition of this case was that Kerns signed an agreement requiring him to undergo and pass a drug screening urinalysis as a condition of employment.

The Authority allowed Kerns to make his own arrangements for the drug test. When the results proved positive, he asked the Authority to give him another opportunity for testing. It agreed. As a result of his passing this second test Kerns was appointed, subject his satisfactory completion of a probationary period.

About two months later the Authority asked Kerns, who was still a probationary employee, to undergo another urinanalysis test for drugs. His urine sample tested positive for marijuana and he was terminated.

Kerns challenged his termination, alleging that the Authority "violated his Fourth Amendment right to be free from unreasonable searches when it required him to submit to and pass a drug test as a condition of employment."

In his deposition, Kerns said that he had not smoked marijuana, but had recently been exposed to second-hand smoke at a party where others were smoking marijuana. Another deponent said that Kerns had told him that he had actually smoked marijuana at the affair.

The federal District Court dismissed Kerns' petition, ruling that his legitimate expectations of privacy were lessened by the "disastrous consequences" that can occur when mistakes are made in the operation of a sewage treatment plant.
The Court also held that Kerns had consented to the drug tests, thereby making them constitutionally permissible. The U.S. Circuit Court of Appeals, Third Circuit, affirmed the district court's rulings.

Although the Circuit Court commented that "silent submission" to a drug test "on pain of dismissal from employment" does not constitute consent, citing its ruling in Bolden v SEPTA, 953 F.2d 807, here it decided that Kerns did significantly more than silently submit to the test -- he had signed a document in which he agreed to "successful[ly] complet[e]" a pre-employment drug test as a condition of his employment.

Full post as published by New York Public Personnel Law on March 21, 2008 (boomark / email).