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					         Legality of drug testing depends on the situation
     If a Massachusetts company has a random drug testing
policy, is that legal?
     Federal law mandates random drug testing policies for
certain businesses that employ commercial drivers. The U.S.
Department of Transportation has specific substance abuse
     However, unlike the mandated Federal law in specific
situations, Massachusetts does not have a drug testing
statute. As such, there is no Massachusetts statute that
directly prohibits drug testing. There is however the
Massachusetts Article 14 of the Massachusetts Declaration of
Rights, which protects citizens from unreasonable searches
and seizures. There is also the Massachusetts privacy
statute that states “a person shall have a right against
unreasonable, substantial or serious interference with his
privacy.” Of course, the question becomes, what is
unreasonable, substantial or serious interference with one’s
     Random drug testing is mandated by Federal statute. At
a minimum, any random drug testing policy challenge must
pass the U.S. Constitution’s Fourth Amendment,
Massachusetts’ Article 14 and Massachusetts Privacy Statute.
     There are few activities in our society more personal
or private than the passing of urine. Accordingly, the
United States Supreme Court has held that the collection and
testing of urine is a search under the Fourth Amendment.
Similarly, Massachusetts has held random urinalysis testing
also constitutes a search and seizure under Article 14.
     If such testing is a search and seizure, when can
random drug testing survive state and federal constitutional
     A Superior Court in Suffolk County addressed this
issue. Although not biding authority, it does provide
persuasive insight. In that case, an employee, was a
motorperson for the Massachusetts Bay Transportation
Authority (MBTA). In essence, she drove the rapid transit
trains. She was randomly selected to provide a urine sample
for drug screening. At the time, the MBTA had no reason to
believe that she had ever been under the influence of
illegal drugs. She tested positive for cocaine. The MBTA’s
had a progressive disciplinary scheme, and as such, she was
terminated since this was her “final chance” step.
     In court, the MBTA met its burden of demonstrating that
the search of its employee was not unreasonable because the
MBTA had a compelling interest in deterring drug use before
it directly impaired the job performance of safety-sensitive
employees such as motorpersons.
     The court noted that the expectation of privacy of MBTA
employees subject to random searches are diminished by
reason of the employees participation in an industry that is
regulated pervasively to ensure safety, a goal dependent, in
substantial part, on the health and fitness of covered
employees. Safety-sensitive employees have duties fraught
with risk of injury to others that even a momentary lapse of
attention can have disastrous consequences. Such employees
can cause great human loss before any signs of impairment
become noticeable to supervisors or others.
     The employee’s position as a motorperson put her in a
situation where she could have been very dangerous to the
lives of the riding public, as well as other workers. The
Fourth Amendment has been held to permit random drug testing
of safety-sensitive employees in the transportation
industry. As such the MBTA’s random drug policy passed the
Fourth Amendment scrutiny. However, the fact that the
MBTA’s policy passes muster under the Fourth Amendment does
not automatically mean that it is permitted under our state
     Under our state constitution, an intrusive testing
process, such as urinalysis, can be justified under Article
14 only if there is a strong factual showing that a
substantial public need exists for the imposition of such a
process. The MBTA made that showing with respect to train
operator. The court noted that the MBTA acted not out of
any abstract commitment to reducing drug usage in society,
but to deter and detect a specific type of drug use among a
specific category of personnel whose usage of such drugs had
the potential of creating a significant risk to public
     So, thus far, the employee’s assertion that her rights
were violated as to the U.S. Fourth Amendment and
Massachusetts’ Article 14 have failed. What about the
Massachusetts Privacy statute?
     When dealing with the privacy statute, the courts focus
is on the degree of intrusion. The courts also consider the
employer’s legitimate business interest balanced against the
employee’s alleged invasion of privacy. The privacy statute
forbids the required disclosure of facts about an individual
that are of a highly personal or intimate nature when there
exist no legitimate countervailing interest.
     As discussed above, the MBTA had a compelling interest
in determining whether drivers of rapid transit trains were
using illicit drugs and in deterring such use. Those
interest outweigh the employee’s privacy interest.
Furthermore, the testing procedures themselves to which the
employee was subjected were not unreasonably intrusive to an
objective person. There was no visual monitoring of her
urination. There is also no evidence that the dissemination
or publication of information concerning Bennett was overly
broad or that the MBTA sought any information through its
testing beyond the presence of the specified drug
     In conclusion, there is federal legislation that
mandates some businesses conduct random drug testing.
However, whether a business is mandated or not to conduct
such testing, the legal process in determining whether
random drug testing in specific situations is legal is the
same. Any random drug testing policy must, at a minimum,
pass the Fourth Amendment’s scrutiny, Massachusetts’ Article
14 and the Massachusetts Privacy Statute. The determination
will depend upon the particular facts of the situation. The
greater the business and societal interest in protecting the
public from harm the more likely such a policy will be
upheld. The more intrusive the procedure, the less likely
the use of illicit drugs will affect the employee’s
performance, the fact the job is not “safety-sensitive”, the
more the policy will be found unconstitutional and thus
     There is no fine line determination of when such a
policy is valid and when one is not. As such, before
establishing any such policy in this rapidly changing area
of the law, an employer needs to consult legal counsel.

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