NCJ Number
116338
Journal
Missouri Law Review Volume: 52 Issue: 3 Dated: (Summer 1987) Pages: 625-646
Date Published
1987
Length
22 pages
Annotation
In 1986, President Reagan announced a program calling for mandatory drug testing of Federal employees in positions requiring a high degree of public trust and confidence.
Abstract
A number of cases have considered the constitutionality of mandatory employee drug testing. A review of these cases suggests that the particular challenge a party seeks to make to such testing will depend on the type of relief sought and the particulars of the case. It could be argued that such testing is a violation against the fifth amendment privilege against self-incrimination. However, the Fifth Circuit Court holding that this privilege applies only to testimonial evidence and not to physical characteristics revealed by urinalysis suggests that this will not be a viable defense for Federal employees. While it also could be argued that testing constitutes a denial of due process, including pre- and post-termination hearings, this ground would only entitle an employee to more process and provide a right to be tested further. It would not prevent the employee from being required to submit to the testing. If testing did not fall under any of the exceptions for exigent circumstances, special classes of Government employees, or administrative searches, the prohibition against unreasonable search and seizures may provide a means for employees to prevent the administration of drug tests. A number of cases, following the decision in Schmerber vs. California, have found urinalysis to constitute a search under the fourth amendment. This issue will continue to be dealt with in various ways by the lower court pending a decision by the U.S. Supreme Court. 172 footnotes.