On Friday, May 15th, the D.C. Court of Appeals decided a case that is styled BNSF Railway Company v. United States Department of Transportation, which determined important privacy rights for aviation, rail, motor carrier, mass transit, maritime and pipeline industries’ workers.
The Department of Transportation requires that workers who violate drug testing policies must successfully complete a drug treatment program and pass a follow up urine analysis before returning to safety-sensitive work.
At issue in this case is whether the Department of Transportation can utilize a direct observation technique of watching the urine specimen leave the examinee’s body in administering the initial and subsequent follow up drug tests.
One of the interesting factual determiners in this case was the advent of devices marketed to falsify the results of random drug tests. The “wizzinator,” a device the Court particularly highlighted, was designed to closely resemble the male genitalia and to dispense either an artificial urine sample or a previously collected clean urine sample. The Department argued that such devices necessitate the direct observation of urine sample collections.
Indeed, the Court sided with the Department in outweighing the worker’s right to privacy by comparison to the Department’s goal of creating a drug-free transportation workplace.
From a Constitutional Law perspective, this decision is a radical departure from the Fourth Amendment “search” law precedent because it sanctions a strip search of a U.S. Citizen in the United States who submits a urine sample. The opinion, though, leaves the reader wondering if foregoing essential privacy, especially in the context of genitalia exposure, should be required of a transportation worker, even though the industry is highly regulated.
When juxtaposed to the need to have a drug free workplace in the area of public transportation, the final decision was foreseeable, but clearly it is highly intrusive.
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