WASHINGTON — Suspicion alone not enough
WASHINGTON--A federal appeals court has ruled that government agencies must have more than a "reasonable suspicion" to require a urinalysis of an employee suspected of using drugs.
In ruling on a suit filed by the National Treasury Employees Union, the U.S. Court of Appeals for the District of Columbia said testing must be based on individualized suspicion of on-duty drug use or impairment.
NTEU President Robert M. Tobias said the decision could be "the death knell for the majority of federal agency drug testing programs which rely on reasonable suspicion as grounds for . . . testing workers."
He said if the decision holds up, agencies will have to identify specific reasons to suspect on-duty drug use or ill effects from such use.
It was the first time a federal appeals court has struck down the reasonable suspicion standard most agencies have used in their drug testing programs, the union said. NTEU had filed the suit on behalf of Food and Nutrition Service employees at the U.S. Department of Agriculture.
The appeals court barred the agency from requiring observation of an employee providing a urine sample unless specific reasons were established on an individual basis to warrant such monitoring.
Tobias said the decision was another major milestone in NTEU's effort to end "this vastly expensive, misdirected folly which has yielded few offenders and tainted the lives of thousands of innocent workers."
Judge Abner J. Mikva wrote in his opinion that the "USDA program is unconstitutional insofar as it authorizes mandatory drug testing of workers who do not hold safety- or security-sensitive jobs, absent reasonable suspicion of on-duty drug use or drug-impaired work performance."
Mikva did allow the Food and Nutrition Service to proceed with its random testing of motor-vehicle drivers, which had been previously upheld in a circuit court challenge of a U.S. Department of Transportation drug testing program for the safety-sensitive job of railroad engineer.
The judge argued that the government had not shown sufficient evidence that off-the-job drug use might affect job performance.
"What the government may not do in the case of ordinary employees is justify drug testing procedures that intrude upon constitutionally protected privacy interests with speculation about possible future job impairment or rules violations," Mikva said.
Five years ago, the Office of Government Ethics concluded that the Farm Credit Administration's financial disclosure system for employees was "inadequate or nonexistent."
After taking another look in a recent study, the General Accounting Office says the FCA has pretty well cleaned up its act.
Of 389 employees required to file disclosures in 1989, GAO said, 358 filed on time. Another 11 filed late. The auditors reserved some criticism for the agency, however, because the remaining nine employees had not filed at all as of June 1990.
GAO said the agency had not done follow-up investigations to see why the nine had not filed. It also recommended the FCA better inform its employees about what practices to avoid by publishing internal decisions and requiring employees to correct errors made on the forms.
In a review of 54 disclosure reports to determine whether forms were being properly scrutinized by FCA, the auditors found one where an FCA employee showed an $800 receipt in her public report for an airline ticket, food and lodging that were paid for by an export trade group.
The FCA said the matter wasn't investigated because the employee left her job. GAO said that her departure shouldn't have prevented the agency from referring the matter to the departmental inspector general. If an IG probe had ensued, the agency could still have issued a letter of reprimand if the results warranted one.
Had a full-blown government shutdown occurred during this year's budget deficit crisis and had lasted beyond the Columbus Day weekend, it would have affected federal agencies differently depending on an agency's mission.
AIn Maryland, for example, the roughly 1,000 civilian employees at the David W. Taylor Ship Research & Development Center in Annapolis wouldn't have been touched for months because of the way it is funded, said James Scott, spokesman for the center, one of eight Navy research laboratories.
The center isn't funded directly with congressional appropriations the way most agencies are.
Instead, Scott said, it operates on money that is placed in a separate revolving fund by Navy agencies that sponsor the center's research projects.
The center's funding would have eventually dried up, only if a shutdown had lasted for months and months at the sponsoring agencies, he said.
"We have a little cushion," Scott said.
Other federal agencies in Maryland would have been exempted from the shutdown. Perry Point Veterans Administration Hospital and Fort Detrick would have remained open because their medical missions make their employees "essential" under the law.
At the Social Security Administration in Woodlawn, spokesman Phil Gambino said only about 3,100 employees are classified as essential because they handle payments to beneficiaries who are entitled by statute to continue receiving their benefit checks.
About 60,000 SSA employees would have stayed home under a shutdown.
To assure that benefits went out, Gambino said, two employees in each of the 1,300 SSA field offices nationwide would report during a shutdown. Similarly, more than 300 employees at the National Computer Center in Baltimore would have been spared along with about 200 administrators at SSA headquarters in Woodlawn.