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City’s questionable need to test HR staff for drugs or alcohol support ADA, 4th A claims

By Lorene D. Park, J.D.

Given an incumbent HR employee’s significant privacy interests, and finding triable questions on her employer’s purported need to subject her to random drug and alcohol tests, considering her access to sensitive information might extend only to personnel records, a federal district court in the District of Columbia denied summary judgment on her claims under the Fourth Amendment and the ADA’s provisions on medical inquiries. However, her First Amendment claim failed because objecting to the random testing was part of her job duties as HR liaison, and was not protected speech (Lewis v. Government of the District of Columbia, October 18, 2017, Boasberg, J.).

City imposes new drug and alcohol tests. The employee had worked for the better part of a decade as an HR advisor and liaison in the Office of Chief Medical Examiner (OCME). After the city constructed a new consolidated facility that would house multiple city departments, including the OCME, the Department of Forensic Sciences, and several divisions of the police department, the mayor issued an order for the D.C. Department of Human Resources (DCHR) to identify “high-risk or sensitive” positions at the facility. Those in “sensitive positions” would be subject to background checks and testing for controlled substance use. OCME staff were informed of this by letter stating they could contact the employee for more information. They were also given several forms at a meeting, including a notice of drug and alcohol testing that required a signature acknowledging that he or she occupied a “protection-sensitive position that is subject to drug and alcohol testing.”

Employee fired for refusing. According to the employee, DCHR’s general counsel rudely told employees they had until 4:00 p.m. to sign or they would be fired (the defendants dispute her account). She voiced her objections, asking why she had to undergo such testing when her job responsibilities would not change at the new building. She refused to sign. Two days later she sent a grievance letter to the general counsel, protesting the policy and claiming he was violating her rights to be made aware of any change in conditions of employment. She also stated that she was in a non-sensitive position and would not sign. Her grievance was denied and, when she continued to refuse to sign, she was prohibited from entering the new building. In January 2013, she was charged with “neglect of duty and insubordination” and she was terminated in April.

Lawsuit. The employee sued the District of Columbia and several individuals. At issue here were the parties’ summary judgment motions on the remaining claims, including an ADA claim of improper medical inquiry, alleged violations of the First and Fourth Amendments, and tort claims for defamation and intentional infliction of emotional distress. The employee voluntarily dismissed her defamation claim and the emotional distress claim failed for lack of extreme or outrageous behavior. The remaining three claims required further analysis.

No protected speech. Granting the defendants’ motion as to the employee’s First Amendment claim, the court explained that while objecting to the District submitting OCME staff to an unconstitutional search was a matter of public concern, the employee was not speaking as a “citizen” because her statements concerning the new drug and alcohol policy were part of her official duties as an HR liaison. Indeed, her job description included evaluating solutions to personnel issues, providing HR guidance, submitting requests related to grievances, and providing advice regarding OCME regulations and HR management. Consequently, her speech was not protected by the First Amendment. The court further concluded that the employee also failed to show, assuming she spoke as a citizen, that her interest in commenting on matters of public concern outweighed the government’s interest in promoting the efficiency of the public services it performs, so her claim also failed for this reason.

Fourth Amendment claim proceeds. On the other hand, the court found triable issues on the employee’s Fourth Amendment claim that the drug and alcohol testing policy constituted an unreasonable search. Because public employees “‘have a serious and legitimate privacy interest in not being subject to’ random drug tests, [the employee] begins with a robust privacy interest,” noted the court. Against this, it had to weigh the government’s interest. The defendants did not contend that anything about the employee’s position justified a bodily intrusion; instead, they made a wholesale classification, arguing that the consolidated forensic laboratory building was “protection” or “safety” sensitive. They stressed the danger that an impaired employee might cause. They also noted that the design of the building meant the employee would have access to rooms containing sensitive material, the exposure of which could disrupt the justice system.

In the court’s view, though, the employee’s level of access was critical to the validity of the city’s justifications and she denied that she would have access to anything other than confidential personnel files, as she had at her prior location as well. Other OCME staff also testified that she would not have access to information apart from HR files. If she only could obtain confidential HR information, the city’s asserted interests in preventing corruption and safeguarding evidence did not outweigh her privacy interest, concluded the court. Given the parties’ different accounts, a jury would have to decide.

ADA claim also proceeds. For her ADA claim, the employee alleged that the District illegally required her to disclose alcohol addiction and prescription-drug use. Under 42 U.S.C. § 12112(d)(4)(A), an employer cannot make medical inquiries of an employee unless such knowledge is “shown to be job-related and consistent with business necessity.” As with the Fourth Amendment claim, the employee’s ADA claim will rise or fall on whether the city’s inquiry was vital to its business needs, and that was a triable issue.