Return to the Syllaubs

 

Copyright (c) 1997 Cleveland State University

Cleveland State Law Review

 

 

1997

 

 

45 Clev. St. L. Rev. 469

 

LENGTH: 18508 words

 

NOTE: Evidentiary and Constitutional Implications of Employee Drug

Testing Through Hair Analysis

 

Theresa K. Casserly

 

SUMMARY:

... Controversy surrounds the use of radioimmunoassay of hair (RIAH)

as a method of drug detection. ... Part V examines the privacy

implications of employee drug testing through hair analysis. ... The

plaintiff voluntarily underwent further testing (including RIAH)

with no evidence of cocaine use. ... The defendant, an Air Force

medical technican, was required to submit to a hair analysis test

after he cheated on a urinalysis test by providing a sample of

saline solution instead of urine. ... The court noted that according

to the drug testing program employees who tested positive to the

RIAH test could then submit to two unannounced urinalysis tests. ...

Once some courts had held that hair analysis was admissible as

evidence, it was inevitable that cases dealing with employee drug

testing through RIAH would appear in court. ... The Koch court held

that RIAH drug testing of employees did not constitute an invasion

of privacy when the tested employee had an option of subsequent

urinalysis testing and GC/MS confirmation of positive test results.

... , held "that mandatory random urine testing by private employers

can be an invasion of privacy sufficient to breach public policy . .

. ." In Hennessey, the plaintiff, a lead pumper in an oil refinery,

was terminated after testing positive for marijuana in a random drug

test through urinalysis. ...

 

TEXT:

[*470] I. INTRODUCTION

 

Controversy surrounds the use of radioimmunoassay of hair (RIAH) n1

as a method of drug detection. n2 The use of this technique by

employers has steadily increased in recent years. n3

 

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n1 Rosa Jordan, Hair Analysis: A New Turn in Drug Testing, RISK

MGMT., Apr. 1988, at 69 (Rosa Jordan was director of public

relations for Psychemedics Corporation.).

 

n2 See Tom Mieczkowski, New Approaches in Drug Testing: A Review of

Hair Analysis, ANNALS AM. ACAD. POL. & SOC. SCI., 132 (May 1992).

 

n3 Margaret O. Kirk, At Work, a Different Test for Drugs, N.Y.

TIMES, Jan. 21, 1996, at F11.

 

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Since 1987, the number of companies with drug testing programs has

nearly quadrupled. n4 Seventy-eight percent of large corporations

are drug testing their employees. n5 The wide majority of those drug

tests, ninety-seven percent, are done through urinalysis. n6 Hair

analysis has taken over a small share of the drug testing market.

Psychemedics Corporation, the largest company marketing hair

analysis tests, services 600 corporations n7 and has tested over one

million employees. n8

 

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n4 Id. A $ 750 million market exists for drug testing. Mark Frankel,

Mom and Pop Test for Drugs, NATION, Jan. 29, 1996, at 20.

 

n5 Kirk, supra note 3.

 

n6 Experts Debate Merits of Hair Testing for Drug Use, ALCOHOLISM &

DRUG ABUSE WEEK, July 29, 1996, at 3.

 

n7 Id.

 

n8 Workers Allege Hair Tests Invade Genetic Privacy; Employee Drug

Testing, ALCOHOLISM & DRUG ABUSE WEEK, Dec. 16, 1996, at 6.

 

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This note addresses the legal issues affecting hair analysis as a

drug detector. Part II outlines a background of hair analysis. Part

III presents the scientific controversy that surrounds hair

analysis. Part IV addresses cases involving hair analysis. Part V

examines the privacy implications of employee drug testing through

hair analysis. Part VI overviews statutes which affect this method

of employee drug testing.

 

II. BACKGROUND OF RIAH

 

A. Development of the Technique

 

Hair analysis has a much longer history in the field of drug

detection than many would suspect. Hair analysis was used to test

for the presence of drugs as far back as 1954. n9 Since then many

scientists have used assay techniques to analyze hair for the

presence of drugs. n10

 

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n9 Mieczkowski, supra note 2, at 135.

 

n10 Id. at 135-36.

 

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[*471] In the 1970's, researchers Werner Baumgartner and Annette

Baumgartner began to develop radioimmunoassay procedures for

detecting drugs in hair. n11 They also explored ways to determine

the amount of exposure to a drug based on the outcome of the test.

n12 The use of RIAH to detect the presence of drugs came to the

public's attention in 1986 when Werner Baumgartner analyzed

nineteenth century poet John Keats' hair and found the pain-killer

Laudanum. n13

 

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n11 Constance Holden, Hairy Problems for New Drug Testing Method,

SCIENCE, Sept. 1990, at 1099.

 

n12 Mieczkowski, supra note 2, at 136.

 

n13 Lynn Crawford, Roots of Evil, SCIENCE, July/August 1986, at 67.

Werner Baumgartner performed the analysis on the hopes of receiving

publicity and, in turn, funding for his research. Id. at 68. Lord

Byron's hair was also tested but nothing was found. Id.

 

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Soon after, Werner Baumgartner and associates started Psychemedics

Corporation. n14 Psychemedics provided large-scale commercial hair

analysis services. n15 It was the first lab to develop a patent for

RIAH. n16 In addition to testing employees, Psychemedics offered

home test packets for parents who suspected that their children were

abusing drugs. n17

 

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n14 Mieczkowski, supra note 2, at 136-37.

 

n15 Id. at 137.

 

n16 Claudia Pinto, Hospitals Aren't Rushing to Adopt New Drug Test,

MODERN HEALTHCARE, June 19, 1995, at 160.

 

n17 Frankel, supra note 4, at 20. The test packet was introduced in

July, 1995. Id. When the news of the test packet was released,

Psychemedics' stock rose 71% in one day. James S. Hirsch,

Psychemedics Stock Surges 71% on News of Private Drug Test, WALL ST.

J., July 13, 1995, at B7.

 

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B. Purported Advantages and Disadvantages

 

Officials from Psychemedics Corporation argue that hair analysis

offers advantages that urinalysis does not. n18 First, a hair sample

is taken in a non-intrusive manner by snipping off a sample of hair.

This is in comparison to the potential embarrassment in providing a

urine sample for testing. n19 Second, RIAH is able to test for drug

use over a longer period of time, "typically several months," as

compared to a shorter time span for urinalysis. n20 Psychemedics

officials argue that this knowledge allows testers to determine

chronic drug use. n21 Third, RIAH is able to determine the amount of

[*472] drugs taken. This enables the tester to distinguish

frequent users from casual users. n22 Fourth, the longer window of

detection makes the method more cost-effective. n23 Hair analysis

costs more on a per test basis than urinalysis but hair analysis

tests do not need to be done as often because of its longer window

of detection. n24 Fifth, it is nearly impossible to cheat on a hair

analysis test. n25 In urinalysis, individuals avoid detection by

substitution, n26 flushing, n27 or abstaining from drugs for a few

days. n28 Sixth, charges that a sample has been substituted or

contaminated can be more easily answered. Another sample can simply

be taken and retested. n29

 

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n18 Jordan, supra note 1, at 69.

 

n19 Id. at 68.

 

n20 Mieczkowski, supra note 2, at 135. Urinalysis can detect drugs

"generally 2 to 3 days" after use "except marijuana, which may be

detected generally from 5 to 30 days after use." Id.

 

n21 Jordan, supra note 1, at 69.

 

n22 Id.

 

n23 Id.

 

n24 Id.

 

n25 Chris Berka & Courtney Poignand, Hair Follicle Testing-An

Alternative to Urinalysis for Drug Abuse Screening, EMPLOYMENT REL.

TODAY, Winter 1991/1992, at 405, 405-06 (Chris Berka and Courtney

Poignand were employed by Psychemedics Corporation as the vice

president of sales and marketing and account specialist,

respectfully.). In the case of baldness or a shaved head, chest or

arm hair can be tested. Sabra Chartrand, Patents: A New Test Can

Detect Marijuana Use by Analyzing a Snippet of Hair. Baldness is Not

A Defense, N.Y. TIMES, Dec. 4, 1995, at D2.

 

n26 Two vials of drug free urine can be bought for $ 19.95. Special

adulterants for urine can also be bought. Chartrand, supra note 25,

at D2.

 

n27 In urinalysis, drinking excessive fluid prior to the test may

allow the individual to avoid drug detection. Berka & Poignand,

supra note 25, at 405-06.

 

n28 Chartrand, supra note 25, at D2.

 

n29 Jordan, supra note 1, at 68. Specifically, "the information in a

second sample grown during the same time period as the first would

contain identical information." Id.

 

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Psychemedics officials admit that there are some disadvantages to

their product. n30 RIAH does not test for immediate impairment. n31

They suggest that a blood analysis or a breathalyzer test would be

better to determine immediate impairment. n32 Others note that

urinalysis would be more suited to determine whether drugs were

taken in the days immediately prior to the test. n33

 

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n30 Id.

 

n31 Id.

 

n32 Id.

 

n33 Jerry G. Stevenson & Roger Williamson, Testing for Drugs:

Bathrooms or Barbershops?, PUB. PERS. MGMT., Winter 1995, at 467,

469.

 

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C. How RIAH Works

 

Hair analysis is based on the premise that drugs are absorbed into

the hair shaft. n34 These substances become bound in the hair where

they remain for a [*473] long period of time. n35 To test hair

samples for drugs, sixty to eighty, one and one-half inch strand

samples are obtained. n36 The samples are then washed. n37 The

radioimmunoassay test performed next is described as follows:

 

The kit contains an antibody and a special antigen, a

radioactively tagged drug. When placed together, the antigen

binds to the antibody in predictable proportions. If there are

drugs in the hair sample, they will also bind to the antibody.

Therefore, when the sample and the labeled antigen are allowed

to compete for the antibody in a test tube, the amount of drug

in the sample can be inferred from the amount of labeled antigen

that has succeeded in binding. n38

 

This radioimmunoassy test is a screening procedure. If a positive

result occurs, it is followed by a sensitive gas chromatography/mass

spectrometry (GC/MS) hair follicle test. n39 The combined method of

immunoassay screening followed by GC/MS confirmation is considered

the "gold standard" in drug testing. n40

 

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n34 Mieczkowski, supra note 2, at 137. Controversy exists as to the

precise manner in which drugs enter hair. See infra Part III.A.1.

 

n35 Mieczkowski, supra note 2, at 137.

 

n36 Pinto, supra note 16, at 160.

 

n37 Chartrand, supra note 25, at D2. A chemical existing naturally

in hair mimics marijuana. Psychemedics has a patented washing

process that removes the mimicking chemical from the hair. Id. For

more information on studies dealing with washing methods and their

effect on eliminating external contamination, see infra Part

III.A.1.

 

n38 Crawford, supra note 13, at 68.

 

n39 Berka & Poignand, supra note 25, at 405-06.

 

n40 Id.

 

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III. SCIENTIFIC CONTROVERSY

 

A. Criticisms of Hair Analysis

 

The scientific community does not question whether hair analysis can

detect the presence of drugs in hair. n41 More than eighty studies

worldwide attest to this fact. n42 But some scientists do question

how to interpret the outcome of these positive results. Tom

Mieczkowski, a criminologist, stated that scientists question the

"interpretation of hair analysis outcomes and how these outcomes may

or may not be appropriately employed." n43 H. Westley Clark, an

addiction-medicine specialist, stated that "there are no standards

on which people agree, and there are no agreed-upon cutoffs below

which a test will be called negative, as there are in urinalysis."

n44

 

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n41 Mieczkowski, supra note 2, at 138. Mieczkowski stated that "in

the literature on hair testing there is not any challenge to the

basic concept of the hair analysis technique." Id.

 

n42 Pinto, supra note 16, at 160.

 

n43 Mieczkowski, supra note 2, at 138.

 

n44 Experts Debate Merits of Hair Testing for Drug Use, supra note

6, at 3.

 

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[*474] 1. External Contamination

 

Controversy surrounds whether external contamination can affect the

outcome of drug testing through hair analysis. n45 The exact

mechanism by which drugs are absorbed into the hair is unknown.

Martha R. Harkey described two theories of how drugs are absorbed

into one's hair. One theory suggests that:

 

[drugs] enter the growing hair follicle by passive diffusion

from the capillaries at the base of the hair follicle. According

to this model, drugs are trapped in the hair cells during early

development, are bound in the hair shaft during keratogenesis,

and can be detected in the hair shaft as it emerges from the

scalp . . . . In this model, drug concentration in hair should

be proportional to the drug concentration in blood at the time

of hair synthesis. The time of drug ingestion also can be

calculated from the location of the drug along the hair shaft

(assuming a constant hair growth rate of one centimeter per

month). n46

 

Another theory suggests that:

 

drugs may be absorbed into hair from capillaries, sebaceous

glands, sweat glands, as well as from the external environment.

Using this model, drugs could be incorporated into hair from

multiple pools during various times of the hair life cycle

(i.e., from blood during growth and differentiation, from sweat

and sebum after formation, and from the external environment

after formation). n47

 

 

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n45 Frankel, supra note 4, at 21.

 

n46 Martha R. Harkey, Technical Issues Concerning Hair Analysis for

Drugs of Abuse, in MEMBRANES AND BARRIERS: TARGETED DRUG DELIVERY

218, 222 (Rao S. Kapaka ed., 1995).

 

n47 Id. at 224.

 

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A study conducted by the University of California, Davis, Medical

School found that clean hair samples tested positive for cocaine

after being handled by individuals who had ingested cocaine. n48

This study indicates that it is difficult to determine if a positive

result occurs because of drug ingestion or external exposure. n49

 

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n48 Frankel, supra note 4, at 21.

 

n49 Id. Some research has indicated that people in certain

professions, such as a bank teller who handles contaminated

currency, are chronically exposed to small traces of drugs.

Mieczkowski, supra note 2, at 139. In Miami, it is reported that

there is cocaine on every dollar bill. Holden, supra note 11, at

1099.

 

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Another study conducted by the University of Alabama, Birmingham

analyzed hair samples from thirty-five children that lived in homes

in which crack cocaine was smoked routinely. The study found that

two-thirds of the children (many of whom were eight years old or

younger) tested positive for [*475] cocaine. n50 The study

abstract stated that "if one assumes that young children are not

intentional cocaine users, these results show that their hair can

become cocaine positive through passive exposure." n51

 

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n50 Frankel, supra note 4, at 21. The study also found that some

children had higher levels of cocaine residue in their hair than

adults also living in the home. Id.

 

n51 Id. Fred Smith, a co-author of the study stated "I was a

proponent of hair testing until I started looking at reports." Id.

 

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In response to these criticisms, Psychemedics President Raymond

Kubacki stated that Psychemedics' washing method eliminates all

environmental contaminants. n52 Additionally, Kubacki stated that

all samples that are found to contain drugs are confirmed through a

GC/MS test. n53 Critics argue that Psychemedics' special washing

method cannot be scientifically confirmed because Psychemedics has

never voluntarily handed over its data to independent researchers.

n54

 

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n52 Id. at 22. Kubacki, in turn, criticized the University of

Alabama's study by claiming it "specious" and claiming that it had

never been peer reviewed. Id.

 

n53 Frankel, supra note 4, at 21.

 

n54 Id. at 22.

 

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Various studies done of similar washing methods show conflicting

results. n55 A study by W.A. Baumgartner and V.A. Hill reported that

their wash protocol either removes external contamination or

indicates when all contamination cannot be removed. n56 A study by

G. Koren et al. also found "only trace amounts of cocaine and its

metabolites" after using a washing method. n57

 

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n55 Stephen Magura et al., Measuring Cocaine Use by Hair Analysis

Among Criminally Involved Youth, 25 J. DRUG ISSUES 683, 686 (1995).

 

n56 Id. (citing W.A. Baumgartner & V.A. Hill, Sample Preparation

Techniques, Presented at the First International Meeting on Hair

Analysis as a Diagnostic Tool for Drugs of Abuse Investigation (Dec.

10-11, 1992, Genoa, Italy)).

 

n57 Id. (citing G. Koren et al., Hair Analysis of Cocaine:

Differentiation Between Systematic Exposure and External

Contamination, 32 J. CLINICAL PHARMACOLOGY 671-75 (1992)).

 

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Contrastably, studies by E. Cone et al. and G.L. Hendersen et al.

"concluded that similar washing of artificially contaminated hair

left enough cocaine behind to cause false positive results." n58 A

study by D. Blank and D. Kidwell "reported failure to successfully

wash cocaine from hair soaked in strong aqueous concentrations of

cocaine." n59

 

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n58 Id. (citing G.L. HENDERSEN ET AL., HAIR ANALYSIS FOR DRUGS OF

ABUSE (Natural Institute of Justice Final Report) (Grant # NIJ

90-NIJ-CX-0012)); E. Cone et al., Testing Human Hair for Drugs of

Abuse. II. Identification of Unique Cocaine Metabolites in Hair of

Drug Abusers and Evaluation of Decontamination Procedures, 15 J.

ANALYTICAL TOXICOLOGY 250-255 (1991).

 

n59 Tom Mieczkowski & Richard Newel, Comparing Hair and Urine Assays

for Cocaine and Marijuana, 57 FED. PROBATION 59 (1993) (citing D.

Blank & D. Kidwell, External Contamination of Hair by Drugs of

Abuse: A Problem Looming for Forensic Analysis, Presented at the

First International Conference on Hair Analysis for Drugs of Abuse

(Dec. 10-11, 1992, Genoa, Italy)).

 

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[*476] Proponents of hair analysis also claim that it is held to a

higher standard than urinalysis. n60 Tom Mieczkowski stated that the

problem of external contamination still exists in urinalysis. He

stated as follows:

 

Passive contamination as a problem for urinalysis has never been

definitively resolved. While cutoff levels are the device used

in urinalysis to control for the effects of passive

contamination, they are arbitrary, clinically and not

theoretically derived, often variable in their application from

institution to institution, and still controversial today.

Positions are taken that urine cutoffs ought to be lower, to

reduce false negatives, or higher, to prevent false positives.

Yet few scientists advocate abandoning urinalysis testing

because there is lack of consensus on cutoff values. n61

 

Likewise, an argument can be made that hair analysis should not be

abandoned despite insufficient research on passive contamination.

n62 It has been hypothesized that "it is reasonable to expect that

passive ingestion would result only in very low hair concentrations.

Cutoff levels can be set high enough-higher than practical for

urinalysis-to minimize the possibility of mistaking a small amount

of passively ingested drug for active drug use." n63

 

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n60 Mieczkowski, supra note 2, at 142.

 

n61 Id. at 143.

 

n62 Id. at 144.

 

n63 Magura et al., supra note 55, at 687 (citing W.A. Baumgartner &

V.A. Hill, Sample Preparation Techniques, Presented at the First

International Meeting on Hair Analysis as a Diagnostic Tool for

Drugs of Abuse Investigation (Dec. 10-11, 1992, Genoa, Italy)).

 

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2. Absorbency Rates Differences

 

Controversy also surrounds whether individual differences in hair

texture and type can affect drug outcomes. n64 Some scientists argue

that two individuals may ingest the same amount of drugs but have

different results on their RIAH tests due to absorbency rates. n65

This may occur because "hair morphology and physiology differ with

race, gender, and age . . . ." n66 The exact way in which these

differences affect hair analysis outcomes is not known. n67

 

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n64 Holden, supra note 11, at 1099. In an online message, H. Westley

Clark expressed concerns regarding the effect of hair type

differences as well as external contamination on hair analysis

results. Experts Debate Merits of Hair Testing for Drug Use, supra

note 6, at 3.

 

n65 Holden, supra note 11, at 1099.

 

n66 Harkey, supra note 46, at 231.

 

n67 Id.

 

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Some studies have indicated that differences in hair type can affect

RIAH outcomes. An animal research study done by the Center for Human

Toxicology [*477] at the University of Utah "indicates that darkly

pigmented hair containing high levels of melanin accumulates more

cocaine residue than lighter colored hair." n68 Another study done

by David A. Kidwell of the Naval Research Laboratory indicated that

"coarse black hair retains more drug than brown hair." n69

Additionally, another study conducted by the Center for Human

Toxicology at the University of Utah "raises the possibility that

women's hair might hold more drug residue than men's." n70

 

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n68 Frankel, supra note 4, at 20-21.

 

n69 Holden, supra note 11, at 1099-1100.

 

n70 Frankel, supra note 4, at 22.

 

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Raymond Kubacki, CEO of Psychemedics, points to a University of

Southern Florida study that "attributed African-American subjects

higher positive-test rates through hair testing to higher use of

cocaine, not to any racial bias in the test." n71 Psychemedics

officials also argue that a double standard is used for hair

analysis as opposed to alcohol testing. n72 When testing for

alcohol, a standardized test is used for both sexes even though

women metabolize alcohol more slowly than men. n73

 

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n71 Experts Debate Merits of Hair Testing for Drug Use, supra note

6, at 3.

 

n72 Holden, supra note 11, at 1100.

 

n73 Id.

 

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B. FDA

 

The U.S. Food and Drug Administration (FDA) issued a compliance

policy guide entitled RIA Analysis of Hair to Detect the Presence of

Drugs of Abuse in May 1990. n74 The guide stated that drug testing

through hair analysis is "unproven," "unreliable," and "not

generally recognized by qualified experts as effective." n75

 

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n74 Mieczkowski, supra note 2, at 147.

 

n75 Id. at 147. A notice was published in the Federal Register on

June 13, 1990, by FDA's Center for Devices and Radiological Center.

No Proof That Hair Analysis Detects Illegal Drugs, FDA CONSUMER,

Nov. 1990, at 3. The Center found the following: "[(1)] the

scientific consensus is that RIA hair analysis for drugs of abuse is

unreliable[;] (2)] no FDA-regulated product on the market has been

shown effective in this use of RIA; and [(3)] no manufacture has

submitted evidence to FDA to support such a product." Id. The

article concluded by stating that "promoting or selling R.I.A.

devices for this unapproved use [was] illegal." Id.

 

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In July 1995, when Psychemedics started marketing home test packets

for parents to test children suspected of abusing drugs, the FDA

sent a warning letter to Psychemedics. n76 It stated that

Psychemedics must seek approval for the unapproved "medical device"

or pay a fine up to $ 15,000 per packet sold. n77 [*478] The

alleged unapproved "medical device" was the envelope mailed to

consumers in which parents were instructed to place snippets of

their child's hair. n78

 

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n76 Frankel, supra note 4, at 22.

 

n77 Id. Psychemedics had been worried for quite some time about

receiving FDA approval. J. Michael Walsh, the former director of

applied research at NIDA who later went on to be executive director

of the President's Drug Advisory Council under George Bush,

described a 1991 meeting with Tom O'Neill, a Psychemedics lobbyist,

in which O'Neill wanted to know in what time span the FDA could

approve hair analysis. Id. at 20-21. Walsh recalled that O'Neill

"said dollars were no object in terms of [spending on the required

lab work necessary] for FDA approval." Id. at 21.

 

n78 Frankel, supra note 4, at 22.

 

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Then, in a letter mailed to Psychemedics in March 1996, the FDA

stated that they had no plans to "actively regulate" the company.

n79 This letter formally withdrew the warning letter of August 1995.

n80 The FDA "didn't rule out any future action against the company."

n81 As a result, Psychemedics is left to be regulated by a federal

agency called the Health Care Finance Administration which oversees

medical testing laboratories. n82

 

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n79 FDA Won't Regulate Psychemedics Product, WALL ST. J., Mar. 28,

1996, at B8.

 

n80 Id.

 

n81 Id.

 

n82 Frankel, supra note 4, at 22.

 

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C. SOFT

 

In June 1990, a conference was held by the Society of Forensic

Toxicologists (SOFT) to discuss hair analysis as a drug detector.

This conference was held by SOFT at the request of the National

Institute on Drug Abuse (NIDA). n83

 

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n83 Mieczkowski, supra note 2, at 144.

 

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A committee at the conference issued a report n84 in which it "took

the position that the use of hair analysis for employee and

preemployment screening is premature and cannot be sustained by

current information on hair analysis for drugs of abuse." n85

Conversely, the committee "supported the use of hair analysis for

forensic testing 'when supported by other evidence of drug use

(e.g., urinalysis)' and 'when performed under the generally accepted

guidelines for forensic drug testing.'" n86 Some commentators have

criticized the report for opposing hair analysis in one area,

employment testing, while advocating it in another, forensic

testing. n87

 

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n84 The report was completed "by a committee from among these

panelists participating in the conference discussion. It does not

represent an official position statement endorsed by the Society of

Forensic Toxicologists at this time." Id. at 145.

 

n85 Id. at 144.

 

n86 Id. at 145.

 

n87 Id.

 

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[*479] IV. RIAH AS EVIDENCE OF DRUG USE

 

A. Standards for Admissibility of Scientific Evidence

 

Traditionally, the admissibility of scientific evidence has been

determined by the standard established in Frye v. United States, n88

a 1923 District of Columbia Circuit decision. n89 In Frye, the court

held that scientific evidence is admissible if it is "sufficiently

established to have gained general acceptance in the particular

field for which it belongs." n90 The defendant sought to introduce

test results taken from a systolic blood pressure deception test.

n91 The court determined that the test was inadmissible since it had

"not yet gained such standing and scientific recognition." n92

 

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n88 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

 

n89 29 CHARLES ALAN WRIGHT & VICTOR JAMES GOLD, FEDERAL PRACTICE AND

PROCEDURE: FEDERAL RULES OF EVIDENCE § 6266, at 265 (1997).

 

n90 Frye, 293 F. at 1014.

 

n91 Id. at 1013.

 

n92 Id. at 1014.

 

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The Frye standard was not codified in the Federal Rules of Evidence

(FRE). n93 Courts were in conflict over whether Frye should remain

the standard. n94 In the 1993 case of Daubert v. Merrell Dow

Pharmaceuticals, Inc., n95 the Supreme Court rejected the use of the

Frye general acceptance standard as a "prerequisite" to

admissibility. n96 In doing so, the Court noted that the (FRE) had

superseded the Frye standard. n97

 

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n93 29 WRIGHT & GOLD, supra note 89, at 266. Rule 702 states as

follows:

 

If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise.

 

FED. R. EVID. 702.

 

n94 29 WRIGHT & GOLD, supra note 89, at 266.

 

n95 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

 

n96 Id. 597.

 

n97 Id. at 589 n.6.

 

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The Court held that in determining the admissibility of scientific

evidence a trial judge must make a "preliminary assessment of

whether the reasoning or methodology underlying the testimony is

scientifically valid and of whether that reasoning or methodology

properly can be applied to the facts in issue." n98 The Court stated

that the following factors should be assessed in determining

admissibility: (1) "whether it can be (and has been) tested;" (2)

"whether the theory or technique has been subjected to peer review

and publication;" (3) "the [*480] known or potential rate of

error;" (4) "the existence and maintenance of standards controlling

the technique's operation;" and (5) "general acceptance." n99 The

plaintiffs sought to offer expert testimony to link Bendectin, "a

prescription anti-nausea drug" with birth defects. n100 The court

remanded the case so that the district court could assess the expert

testimony in terms of the new standard. n101

 

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n98 Id. at 592.

 

n99 Id. at 593-94.

 

n100 Daubert, 509 U.S. at 582.

 

n101 Id. at 597-98.

 

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A split still exists in state courts as to the applicable standard

for assessing the admissibility of scientific evidence. Some states

follow Daubert while others continue to follow Frye. n102

 

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n102 29 WRIGHT & GOLD, supra note 89, at 267 & n.22, 269, 270 &

n.23.

 

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B. Case Law

 

The first cases to address RIAH dealt with the issue of whether a

party could be compelled to submit to a hair analysis test during

discovery. In Burgel v. Burgel, n103 a New York court held that a

wife could be compelled to submit hair samples for RIAH during

discovery when reasonable grounds for suspicion arose concerning

drug use. n104 Reasonable grounds for suspicion existed in this case

because the wife admitted to cocaine use in the past. n105 The court

reasoned that the broad scope of discovery permitted a husband to

compel a wife to submit to RIAH, a "minimally intrusive procedure,

because the material sought is relevant, and reasonable grounds

exist for the request." n106 The court stated that "we express no

opinion in regard to whether the test results would be admissible."

n107

 

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n103 Burgel v. Burgel, 533 N.Y.S.2d 735 (App. Div. 1988).

 

n104 Id. at 737.

 

n105 Id.

 

n106 Id.

 

n107 Id. at 737. The court noted that "the material which the

defendant seeks to discover, even if not admissible itself, may be

discovered if it could lead to the discovery of admissible

evidence." Id.

 

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Burgel was followed by another New York custody case, Garvin v.

Garvin. n108 The husband in Garvin wanted to compel his wife to

submit to a RIAH test during discovery. n109 In contrast to Burgel,

the Garvin court held that the wife could not be compelled to submit

to a RIAH test since there were no reasonable grounds for suspicion.

n110 Reasonable grounds did not exist for drug testing [*481]

because there was only the suspicion that the wife smoked marijuana.

n111 The court based its decision solely on the lack of reasonable

grounds for suspicion. n112 The opinion did not delve into the

merits of drug testing through hair analysis.

 

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n108 Garvin v. Garvin, 556 N.Y.S.2d 699 (App. Div. 1990).

 

n109 Id. at 700-01.

 

n110 Id. at 701.

 

n111 Id.

 

n112 Id.

 

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In United States v. Foote, n113 the Eighth Circuit Court of Appeals

held that a district court's denial of a motion to compel a RIAH

test did not constitute an abuse of discretion. n114 In Foote, a

criminal defendant charged with conspiracy to distribute cocaine and

various other distribution and weapons charges requested that one of

the arresting police officers be compelled to submit to a RIAH test.

n115 The criminal defendant requested that the officer be compelled

to submit to a RIAH test because the defendant had seen the officer

use cocaine during an undercover period of investigation. n116 The

Eighth Circuit noted that the district court denied defendant's

motion to compel drug testing of the officer due to "Fourth and

Fifth Amendment implications," the "intrusive and unreliable nature

of the experimental" RIAH tests, and "the lack of any evidence"

regarding drug use on the part of the officer. n117

 

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n113 United States v. Foote, 898 F.2d 659 (8th Cir. 1990).

 

n114 Id. at 665.

 

n115 Id.

 

n116 Id.

 

n117 Id.

 

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United States v. Medina n118 has been consistently cited in cases

determining the admissibility of RIAH as evidence. n119 The United

States District Court for the Eastern District of New York held that

RIAH test results are admissible as scientific evidence in a

probation revocation proceeding. n120 The court stated that the

"primary issue that must be resolved in determining admissibility of

RIA hair analysis is reliability. A court should take judicial

notice of the relevant body of scientific literature to assist it in

evaluating advances in scientific techniques such as RIA hair

analysis." n121

 

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n118 United States v. Medina, 749 F.Supp. 59 (E.D.N.Y. 1990).

 

n119 See Bass v. Florida Dep't of Law Enforcement, 627 So.2d 1321,

1322 (Fla. Dist. Ct. App. 1993); Nevada Employment Sec. Dep't v.

Holmes, 914 P.2d 611, 614-15 (Nev. 1996); In re Adoption of Baby Boy

L., 596 N.Y.S.2d 997, 1000 (Fam. Ct. 1993), aff'd sub nom. In re

Baby Boy L., 614 N.Y.2d 566 (App. Div. 1994).

 

n120 Medina, 749 F.Supp. at 59. Probationer was required to submit a

hair sample for drug testing to see if he violated conditions of his

probation, which required him to refrain from drugs. Id.

 

n121 Id. at 61.

 

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The court reasoned that "extensive scientific writings on RIA hair

analysis establishes both its reliability and its acceptance in the

field of forensic [*482] toxicology when used to determine cocaine

use." n122 The case cited a number of scientific studies, the SOFT

consensus, n123 United States v. Riley, n124 Burgel, and Foote. n125

The court noted that some studies expressed concerns regarding hair

analysis. n126 The court resolved these concerns by stating that

they are "not based upon a challenge to the basic scientific

principles of analytical chemistry which are the foundation of

radioimmunoassay." n127 The court concluded by stating "these

accepted principles establish that radioimmunoassay is an effective

and accurate method of detecting the presence of various compounds

including narcotics." n128

 

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n122 Id.

 

n123 Id. (citing SOCIETY OF FORENSIC TOXICOLOGISTS, BIBLIOGRAPHY OF

CONFERENCE ON HAIR ANALYSIS FOR DRUGS OF ABUSE (1990)).

 

n124 Id. (citing United States v. Riley, 906 F.2d 841, 853 (2d Cir.

1990) (Weinstein, J., dissenting) ("hair . . . could be analyzed to

show use of narcotics")).

 

n125 Medina, 749 F.Supp. at 61.

 

n126 Id. The court stated as follows:

 

Some forensic scientists caution against widespread use of RIA

hair analysis until more is known about the mechanism by which

controlled substances are incorporated into human hair and the

minimum amount necessary to produce a positive result can be

standardized.

 

Id.

 

n127 Id.

 

n128 Id.

 

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The holding in Medina has become a frequently cited authority upon

which subsequent cases rely. One such case is In re Adoption of Baby

Boy L., n129 in which the New York State Family Court ruled that

RIAH evidence was admissible in a best interests hearing following a

natural mother's revocation of her adoption consent. n130 The court

relied on the testimony of two experts to establish the accuracy of

RIAH testing. n131 Based on that testimony, the court concluded that

RIAH in conjunction with GC/MS confirming procedures "has been

accepted by the scientific community as a reliable and accurate

method of ascertaining [*483] and measuring the use of cocaine by

human subjects ... [and] may therefore be offered in evidence." n132

 

 

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n129 In re Adoption of Baby Boy L., 596 N.Y.S.2d 997 (Fam. Ct.

1993), aff'd sub nom. In re Baby Boy L., 614 N.Y.S.2d 566 (App. Div.

1994).

 

n130 Id. The Supreme Court Appellate Division upheld the decision of

the Family Court that it was in the best interests of the adoptive

child to be placed with the adoptive parents rather than the natural

parents. Id.

 

n131 Id. at 1000. Adoptive parents expert testified that if RIAH

process was done correctly it "yields a reliable result which is

accepted by the relevant scientific community." Id. at 999.

Additionally, the natural mother's expert testified on cross

examination that "he personally and professionally regarded the test

as being accurate and reliable." Id.

 

n132 Id. at 1000. The court also stated that the weight of these

test results once admitted into evidence are to be determined by the

trier of fact. Id. at 1000.

 

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A Florida Appellate court in Bass v. Florida Department of Law

Enforcement, n133 held that RIAH evidence should have been admitted

into evidence. n134 The plaintiff in Bass was a corrections officer

who was fired after failing a urinalysis test. n135 The plaintiff

voluntarily underwent further testing (including RIAH) with no

evidence of cocaine use. n136 The plaintiff requested that the RIAH

test results be admitted into evidence. n137 This was denied by the

hearing officer. n138 In reversing the hearing officer, the court

reasoned that if RIAH was "generally accepted in the scientific

community" it would meet the admissibility test. n139 The court

cited Riley, Medina, In re Adoption of Baby Boy L., Cole v. Texas,

n140 Burgel, and two scientific studies to support the conclusion

that RIAH was generally accepted in the scientific community and

therefore admissible. n141 This case was decided prior to the 1996

amendment to Florida's Drug Free Workplace Act which approved hair

analysis as a drug testing method. n142

 

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n133 Bass v. Florida Dep't of Law Enforcement, 627 So.2d 1321 (Fla.

Dist. Ct. App. 1993).

 

n134 Id. at 1322.

 

n135 Id. at 1321. Plaintiff had held the job for eight years in

which she had received numerous commendations and outstanding

performance evaluations. Id.

 

n136 Id. at 1322.

 

n137 Id. In addition to the results of the RIAH test, Plaintiff

sought to introduce a letter from Werner Baumgartner, the original

researcher who discovered RIAH, discussing urinalysis and false

positive test results. Id.

 

n138 Bass, 627 So.2d at 1322.

 

n139 Id.

 

n140 Id. (citing Cole v. Texas, 839 S.W.2d 798 (Tex. Crim. App.

1990)).

 

n141 Id.

 

n142 FLA. STAT. ANN. § 112.0455(13) (West 1996). See infra Part

VI.A.

 

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In United States v. Nimmer, n143 the U.S. Court of Appeals for the

Armed Forces remanded a case to relitigate whether a hair analysis

expert's testimony should be admissible. n144 The defendant, a petty

officer, was court-martialed as a result of a urinalysis test. n145

The defendant denied ever taking cocaine. To prove his [*484]

contention, he submitted to an RIAH test and tested negative for

cocaine. n146 The trial court refused to allow defendant's expert

witness to testify as to those results. n147 The trial court's

decision was affirmed by the United States Navy Marine Corps Court

of Military Review. n148 The U.S. Court of Appeals for the Armed

Forces remanded the case so that the trial court could assess the

admissibility of evidence in light of Daubert. n149

 

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n143 United States v. Nimmer, 43 M.J. 252 (C.M.A. 1995).

 

n144 Id. at 259. The trial court did not allow the hair analysis

results to be submitted into evidence. Id. The United States Navy

Marine Corps Court of Military Review affirmed the trial court's

ruling. United States v. Nimmer, 39 M.J. 924 (N-M.C.M.R. 1994),

rev'd, 43 M.J. 252 (C.M.A. 1995).

 

n145 Nimmer, 43 M.J. at 252-53.

 

n146 Id. at 253.

 

n147 Id.

 

n148 Id. at 254-55.

 

n149 Id. at 260.

 

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In another military case, United States v. Bush, n150 the U.S. Air

Force Court of Criminal Appeals held that hair analysis was

admissible as evidence to sustain a drug conviction. n151 This case

was one of "first impression for federal criminal jurisprudence."

n152 The defendant, an Air Force medical technican, was required to

submit to a hair analysis test after he cheated on a urinalysis test

by providing a sample of saline solution instead of urine. n153 The

defendant tested positive for cocaine on the hair analysis test.

n154 The court based its reasoning on the expert testimony of both

the prosecution and the defense. n155 The two experts agreed "(a)

that cocaine appears in the hair of users; and (b) that scientific

analysis using MS/MS (or even GC/MS) instruments can reliably and

validly detect that cocaine." n156

 

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n150 United States v. Bush, 44 M.J. 646 (C.M.A. 1996).

 

n151 Id. at 646.

 

n152 Id. at 647.

 

n153 Id. at 647-48.

 

n154 Id. at 648.

 

n155 Bush, 44 M.J. at 652. The only study referred to by the court

was the SOFT consensus. Id.

 

n156 Id. at 651. The court noted "in short, MS/MS hair analysis is a

far cry from palmistry, phrenology or chicken guts, and clears the

pseudo-science hurdle easily." Id. at 652.

 

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In an unreported case, Koch v. Harrah's Club, n157 a Nevada trial

court held that an employer's drug testing program which included

RIAH did not violate an employee's right to privacy. n158 The court

noted that according to the drug testing program employees who

tested positive to the RIAH test could then submit to two

unannounced urinalysis tests. n159

 

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n157 Koch v. Harrah's Club, 5 Individual Employment Rts. Cases (BNA)

1295 (Nev. Dist. Ct. 1990).

 

n158 Id. at 1296.

 

n159 Id.

 

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[*485] The court, however, also noted that an employee could not

be terminated on the basis of RIAH testing alone. n160 It stated

that "the RIAH screen test alone has not, at this stage, developed

sufficiently to form a basis for termination of current employees.

Under Harrah's existing policy, current employees are not terminated

based on RIAH alone." n161 The court offered no explanation as to

how it came to the conclusion that RIAH results were not enough

reason to terminate an employee.

 

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n160 Id.

 

n161 Id.

 

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In Nevada Employment Security Department v. Holmes, n162 the Supreme

Court of Nevada held that RIAH test results constituted substantial

evidence. n163 In Holmes, the plaintiff's employer informed all

employees that the defendant company would be starting a random drug

testing program. n164 The plaintiff, a slot hostess at a hotel, was

given ninety days notice. She voluntarily agreed to take an RIAH

test. n165 The plaintiff tested positive for cocaine and, due to

concerns over the chain of custody of the hair sample, a retest was

taken. Once again, the plaintiff's RIAH test was positive for

cocaine. n166 She was terminated from her job because of the drug

test. n167

 

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n162 Nevada Employment Sec. Dep't v. Holmes, 914 P.2d 611 (Nev.

1996).

 

n163 Id. at 614.

 

n164 Id. at 613.

 

n165 Id. Plaintiff's employer screened the employees for drugs with

a RIAH test. If positive results occurred, a GS/MS confirmatory test

was performed. Id. These tests were used to check for cocaine

ingestion during the previous ninety days. Id.

 

n166 Id. at 613.

 

n167 Holmes, 914 P.2d at 611.

 

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The plaintiff subsequently filed a claim with the Nevada Employment

Security Department (NESD) for unemployment compensation. n168 NESD

denied her unemployment claim because she was terminated for

misconduct. n169 The plaintiff appealed the decision. It was upheld

by both the appeals referee and the NESD Board of Review. n170 The

plaintiff then filed a petition for judicial review. n171 The

district court held that substantial evidence did not support the

NESD's decision. n172 Therefore, the decision to withhold

unemployment compensation was reversed. n173

 

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n168 Id.

 

n169 Id. The denial of unemployment benefits because of misconduct

was pursuant to NEV. REV. STAT. § 612.385 (1995).

 

n170 Id.

 

n171 Id.

 

n172 Holmes, 914 P.2d at 612. "Additionally, the district court

stated that 'hair drug screens, standing alone, are scientifically

unreliable at this time to sufficiently form a legal basis for

disqualifying claimants for state unemployment insurance benefits

without violating the due process clause of the Fourteenth Amendment

of the U.S. Constitution.'" Id. at 613.

 

n173 Id. at 612.

 

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[*486] The Supreme Court of Nevada reversed the district court's

decision and held that the administrative body's decision would

stand because it was based on substantial evidence. n174 The court

stated that the appeals referee based her decision, that RIAH was an

acceptable form of drug testing, on Medina, the testimony of two

experts, and articles in scientific journals. n175 The court

reasoned that this evidence met the criteria of the substantial

evidence test. n176 As a result, the RIAH results constituted

substantial evidence. n177

 

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n174 Id. at 614.

 

n175 Id.

 

n176 Id.

 

n177 Holmes, 914 P.2d at 614.

 

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The cases in this section are important in that they are the first

to deal with the results of drug testing through hair analysis. They

are also important because they allow one to see a contrast between

a court which viewed RIAH as an "experimental technique" n178 to

another court which held that RIAH results constitute substantial

evidence of employee drug use. n179

 

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n178 See United States v. Foote, 898 F.2d 659, 665 (8th Cir. 1990).

 

n179 Nevada Employment Sec. Dep't v. Holmes, 914 P.2d 611, 614 (Nev.

1996).

 

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In Burgel, the first holding to support RIAH, the New York court

opened the door to the admissibility of hair analysis by allowing it

to be compelled from a party during discovery. n180 The court stated

that this ruling was based on the liberal discovery rule and in no

way sanctioned the admissibility of hair analysis as evidence. n181

 

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n180 Burgel v. Brugel, 533 N.Y.S.2d 735, 737 (N.Y. App. Div. 1988).

 

n181 Id.

 

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Yet, two years later, in Medina, the court relied on Burgel's

ruling, along with articles in scientific journals, to support the

admissibility of hair analysis. n182 The court noted "that

radioimmunoassy is an effective and accurate method of detecting the

presence of various compounds including narcotics." n183 External

contamination and differences in hair absorbency of different races

or genders were not discussed in the opinion.

 

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n182 United States v. Medina, 749 F.Supp. at 59 (E.D.N.Y. 1990).

 

n183 Id. at 61.

 

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Once some courts had held that hair analysis was admissible as

evidence, it was inevitable that cases dealing with employee drug

testing through RIAH would appear in court. Nevada State courts have

addressed employee drug testing in two instances. The Koch court

held that RIAH drug testing of employees did not constitute an

invasion of privacy when the tested employee [*487] had an option

of subsequent urinalysis testing and GC/MS confirmation of positive

test results. n184 The Holmes court relied heavily on Medina and its

string cite of scientific journals in ruling that RIAH results

constituted substantial evidence. n185 Future employee drug testing

through RIAH cases may cite to and follow Holmes.

 

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n184 Koch v. Harrah's Club, 5 Individual Employment Rts. Cases (BNA)

1295, 1296 (D. Nev. Sept. 12, 1990).

 

n185 Nevada Employment Sec. Dep't v. Holmes, 914 P.2d 611, 614 (Nev.

1996).

 

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V. PRIVACY IMPLICATIONS

 

A. Overview of Drug Testing Cases

 

1. Public Employees

 

The Supreme Court has ruled that the Fourth Amendment right against

unlawful search and seizure applies in instances of drug testing of

public employees. n186 Two landmark Supreme Court cases dealing with

employee drug testing were issued on the same day in 1989. n187

 

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n186 Craig M. Cornish & Donald B. Lauria, Employment Drug Testing,

Preventive Searches, and the Future of Privacy, 33 WM. & MARY L.

REV. 95 (1991).

 

n187 See National Treasury Employees Union v. Von Raab, 489 U.S. 656

(1989); Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602

(1989). These cases were decided on March 21, 1989: Von Raab, 489

U.S. at 656; Skinner, 489 U.S. at 602. Both opinion were written by

Justice Kennedy. Von Raab, 489 U.S. at 658; Skinner, 489 U.S. at

605.

 

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In Skinner v. Railway Labor Executives' Association, n188 the Court

held that in some circumstances employee drug and alcohol tests were

reasonable under the Fourth Amendment and did not unduly infringe on

an employee's privacy interests. n189 The Railway Labor Executives'

Association and various labor organizations sued the Secretary of

Transportation to enjoin specific drug and alcohol regulations

issued by the Federal Railroad Administration (FRA). n190 The

disputed regulations required railroads to see that blood and urine

tests of covered employees are conducted following accidents. n191

Furthermore, the regulations authorized railroads to conduct breath

or urine tests in certain situations. n192

 

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n188 Skinner, 489 U.S. at 602.

 

n189 Id. at 634.

 

n190 Id. at 612.

 

n191 Id. at 606.

 

n192 Id. The regulations state that breath or urine tests may be

required if an employee violates certain rules, or if the employee

is suspected of acts that contributed to an accident. Id. at 630-34.

 

 

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[*488] The Court held that these tests of employees' blood, urine,

and breath were searches under the Fourth Amendment. n193 The Court

stated that two intrusions of privacy occur during drug testing. In

urinalysis, the first intrusion occurs during collection, and the

second occurs during chemical analysis. n194 Similarly, in blood

testing, the first intrusion occurs when the needle pierces the

skin. The second intrusion also occurs during chemical analysis.

n195

 

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n193 Skinner, 489 U.S. at 617. The court stated:

 

it is not disputed, that chemical analysis of urine, like that

of blood, can reveal a host of private medical facts about an

employee, including whether she is epileptic, pregnant, or

diabetic. Nor can it be disputed that the process of collecting

the sample to be tested, which may in some cases involve visual

or aural monitoring of the act of urination, itself implicates

privacy interest . . . . Because it is clear that the collection

and testing of urine intrudes upon expectations of privacy that

society has long recognized as reasonable . . . these intrusions

must be deemed searches under the Fourth Amendment.

 

Id.

 

n194 Id. at 626.

 

n195 Id. at 625.

 

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The Court stated that in certain circumstances beyond normal law

enforcement, searches could occur without the usual warrant and

probable cause requirement of a search. n196 Such a circumstance

occurs if the government's compelling interest outweighs an

employee's privacy expectation. n197 The Supreme Court held that the

government's interest in the prevention of accidents and casualties

in railroad operations resulting from employee's impairment was such

a compelling interest. n198

 

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n196 Id. at 619.

 

n197 Id. at 628. The Skinner Court noted that employees in the

railroad industry may cause serious injuries because of a momentary

lapses of attention. Id. The Court quoted the dissenting judge in

the circuit court's decision as follows: "An idle locomotive,

sitting in the roundhouse, is harmless. It becomes lethal when

operated negligently by persons who are under the influence of

alcohol or drugs." Id.

 

n198 Skinner, 489 U.S. at 628.

 

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The Court then applied a balancing test between the government's

interest and the employee's expectation of privacy. n199 The Court

stated as follows:

 

though some of the privacy interests implicated by the

toxicological testing at issue reasonably might be viewed as

significant in other contexts, logic and history show that a

diminished expectation of privacy attaches to information

relating to the physical condition of covered employees . . . .

By contrast, the Government interests in testing without a

showing of individualized suspicion is compelling. n200

 

[*489] Based on that reasoning, the regulations were upheld as a

reasonable intrusion into the privacy of the railroads' employees.

n201

 

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n199 Id.

 

n200 Id.

 

n201 Id.

 

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In National Treasury Employees Union v. Von Raab, n202 the Court

upheld employee drug testing of "employees who seek to be promoted

to positions that directly involve the interdiction of illegal drugs

or that require the incumbent to carry a firearm." n203 The

plaintiffs in Von Raab, a union of federal employees and a union

official, objected to the Customs Service's drug testing program.

n204 Under the Customs Service's drug testing program, drug tests

were made a condition of employment for certain positions. The

positions which required drug tests were ones in which employees

carried firearms, handled classified materials, or were involved in

drug interdiction or enforcement of related laws. n205

 

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n202 National Treasury Employees Union v. Von Raab, 489 U.S. 656

(1989).

 

n203 Id. at 677.

 

n204 Id. at 663.

 

n205 Id. at 679.

 

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The Von Raab Court reiterated the holding in Skinner that when a

Fourth Amendment intrusion serves special governmental needs it is

necessary to balance the individual's privacy expectations against

the government's interest to determine if the intrusion is

unreasonable. n206 The Court stated "that the Government has a

compelling interest in ensuring that front-line interdiction

personnel are physically fit, and have unimpeachable integrity and

judgment." n207 This is required because the public's interest in

self-protection could be damaged if those policing the borders for

narcotics have drug habits. n208 The Court noted that many Customs

Service employees are exposed to criminals. They are often the

targets of attempted bribery by drug smugglers. n209 Additionally,

the Court stated that the government has a public interest in

preventing drug users from carrying firearms. n210

 

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n206 Id. at 655.

 

n207 Von Raab, 489 U.S. at 670.

 

n208 Id.

 

n209 Id. at 669. Many employees were removed in the past for

accepting bribes and other integrity violations. Id.

 

n210 Id. at 670. The court stated "we agree with the Government that

the public should not bear the risk that employees who may suffer

from impaired perception and judgment will be promoted to positions

where they may need to employ deadly force." Id. at 670-71.

 

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The government's interests were then weighed by the Von Raab Court

against the individual employee's expectation of privacy. n211 Like

the Skinner Court, the [*490] Court in Von Raab also stated that

intrusions that are unreasonable in non-work situations may be

reasonable in work situations. n212 The Court concluded that in

regards to positions involving drug interdiction or firearms the

Customs Service's drug test was a reasonable intrusion. n213 The

Court remanded the issue of drug testing of employees who "handle

classified material" to the trial court to determine if "the Service

has defined this category of employees more broadly than is

necessary." n214

 

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n211 Id. at 670-71.

 

n212 Von Raab, 489 U.S. at 670-71.

 

n213 Id. at 677.

 

n214 Id.

 

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In Legal Issues Surrounding Employee Hiring, Privacy and

Investigation, author Jill L. Rosenberg states that lower court

cases "reveal three relatively narrow categories of competing

employer interests that will justify invading conceded employee

privacy rights under Fourth Amendment standards." n215 The first

category consists of an interest in the protection of public safety

in law enforcement and the transportation industry. n216 Courts are

split as to the constitutionality of drug testing police officers

and firefighters. n217

 

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n215 Jill L. Rosenberg, Legal Issues Surrounding Employee Hiring,

Privacy and Investigation, 547 PRACTICING L. INST. LITIG. & ADMIN.

PRAC. COURSE HANDBOOK SERIES LITIG. 569, 609 (1996).

 

n216 Id.

 

n217 Id. at 611.

 

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The next category consists of an interest in monitoring employees

who hold sensitive positions of public trust. n218 Drug testing in

this category "has been upheld when the employees subject to testing

occupy positions which expose them to users or peddlers of illicit

drugs." n219

 

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n218 Id. at 609.

 

n219 Id. at 612.

 

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The third category consists of the employers interest in the

protection against disclosure of highly sensitive information. n220

Lower courts focus "on the potential harm which could arise if such

information were disclosed." n221

 

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n220 Rosenberg, supra note 215, at 609.

 

n221 Id. at 612.

 

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2. Private Employees

 

Courts have held that the Fourth Amendment's prohibition against

unlawful search and seizure does not extend to drug testing of

private employees. n222 [*491] Private employees may still raise

privacy objections by either claiming wrongful discharge in

violation of public policy or wrongful discharge due to breach of an

implied covenant of good faith and fair dealing. n223 Many

jurisdictions reject one or both of these claims. n224 This section

examines cases which indicate that an employee may have such a claim

when he/she is terminated as a result of a drug test.

 

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n222 See, e.g., Edward L. Raymond, Jr., Annotation, Liability for

Discharge of At-Will Employee for Refusal to Submit to Drug Testing,

79 A.L.R. 4th 105, § 3 (1990 & Supp. 1997) (citing Borse v. Pierce

Goods Shop, Inc., 758 F. Supp. 263 (E.D. Pa. 1991); Johnson v.

Carpenter Tech. Corp., 723 F.Supp. 180 (D.C. Wyo. 1987); Greco v.

Halliburton Co., 674 F.Supp. 1447 (D.C. Wyo. 1987); Monroe v.

Consolidated Freightways, Inc., 654 F.Supp 661 (E.D. Mo. 1987);

Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska

1989)).

 

n223 See, e.g., Raymond, supra note 222, at § 2.

 

n224 See, e.g., id. at §§ 5(b), 7, 8 (citing Ritchie v. Walker Mfg.

Co., 963 F.2d 1119 (8th Cir. 1992); Borse v. Pierce Goods Shop,

Inc., 758 F.Supp. 263 (E.D. Pa. 1991); Greco v. Halliburton Co., 674

F.Supp. 1447 (D.Wyo. 1987); Monroe v. Consolidated Freightways,

Inc., 654 F.Supp. 661 (E.D. Mo. 1987); Folmsbee v. Tech Tool

Grinding & Supply Inc., 630 N.E.2d 586 (Mass. 1994); Gilmore v.

Enogex, Inc., 878 P.2d 360 (Okla. 1994); Roe v. Quality Transp.

Servs., 838 P.2d 128 (Wash. Ct. App. 1992)).

 

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a. Wrongful Discharge in Violation of Public Policy

 

In Semore v. Pool, n225 a California appellate court held that "when

a private employee is terminated for refusing to take a random drug

test, he may invoke the public policy exception to the at-will

termination doctrine to assert a violation of his constitutional

right of privacy." n226 The plaintiff, an employee of nine years,

was terminated when he refused to take a pupillary reaction eye

test. n227 The test was used to determine if employees were taking

drugs. n228

 

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n225 Semore v. Pool, 266 Cal. Rptr. 280 (Ct. App. 1990).

 

n226 Id. at 282.

 

n227 Id.

 

n228 Id.

 

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The court reasoned that the California Constitution n229" provides

that privacy is one of our inalienable rights. Since privacy can be

invaded by government agencies, businesses, or individuals, the

courts and commentators agree that the constitutional provisions

provides at least some protection against nongovernmental action."

n230 The court stated that this expectation of privacy needs to be

balanced against the employers interest in regulating the conduct of

its employees. n231 The court stated that the issue of whether a

pupillary reaction eye test was nonintrusive could not be decided on

demurrer since the court did not have facts regarding "the nature of

the test, the equipment used, the manner of administration, its

reliability, the handling of test results and [*492] similar

concerns." n232 The court also noted that the complaint did not

indicate plaintiff's "type of work." n233 The court concluded that

without these facts, the case could not be decided on demurrer. n234

The case was remanded to the trial court to allow plaintiff to amend

his complaint. n235

 

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n229 CAL. CONST. art. I, § 1 states as follows: "All people are by

nature free and independent and have inalienable rights. Among these

are enjoying and defending life and liberty, acquiring, possessing,

and protecting property, and pursuing and obtaining safety,

happiness, and privacy."

 

n230 Semore, 266 Cal. Rptr. at 283.

 

n231 Id. at 286.

 

n232 Id. at 287.

 

n233 Id.

 

n234 Id.

 

n235 Semore, 266 Cal. Rptr. at 283.

 

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In Twigg v. Hercules Corp., n236 the Supreme Court of Appeals of

West Virginia answered a certified question from the United States

District Court for the Northern District of West Virginia regarding

whether employee drug testing may violate public policy. n237 The

court held that:

 

It is contrary to public policy in West Virginia for an employer

to require an employee to submit to drug testing, since such

testing portends an invasion of an individual's right to

privacy. We do, however, temper our holding with two exceptions

to this rule. Drug testing will not be violative of public

policy grounded in the potential intrusion of a person's right

to privacy where it is conducted by an employee based upon

reasonable good faith objective suspicion of an employee's drug

usage or where an employee's job responsibility involves public

safety or the safety of others. n238

 

 

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n236 Twigg v. Hercules Corp., 406 S.E.2d 52 (W. Va. 1990).

 

n237 Id. at 52-53. The Northern District of West Virginia's

certified question was as follows:

 

Can the discharge of an employee for refusing to submit to

urinalysis as part of a random drug test violate a substantial

public policy of West Virginia and subject the employer to

damages under Harless v. First National Bank in Fairmont when

the employer has no individualized suspicion of drug usage and

the drug test is not prohibited by state statute.

 

Id. (citation omitted).

 

n238 Id. at 55 (footnote omitted).

 

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A New Jersey Supreme Court case, Hennessey v. Coastal Eagle Point

Oil Co., n239 held "that mandatory random urine testing by private

employers can be an invasion of privacy sufficient to breach public

policy . . . ." n240 In Hennessey, the plaintiff, a lead pumper in

an oil refinery, was terminated after testing positive for marijuana

in a random drug test through urinalysis. n241

 

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n239 Hennessey v. Coastal Eagle Point Oil Co., 609 A.2d 11 (N.J.

1992).

 

n240 Id. at 19.

 

n241 Id. at 12-13.

 

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The court stated "to constitute a'clear mandate of public policy'

supporting a wrongful-discharge cause of action, the employee's

individual right (here, [*493] privacy) must outweigh the

competing public interest (here, public safety)." n242 The court

noted that the public's interest in ensuring that workers in

safety-sensitive positions are drug free outweigh an employee's

right to privacy. n243 Because the plaintiff's position at the oil

refinery was a safety-sensitive position, the court held that under

these circumstances his firing did not violate public policy. n244

 

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n242 Id. at 20.

 

n243 Id.

 

n244 Hennessey, 609 A.2d at 21.

 

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b. Breach of Implied Covenant of Good Faith and Fair Dealing

 

In Luedtke v. Nabors Alaska Drilling, Inc., n245 the Supreme Court

of Alaska held that a breach of the implied covenant of good faith

and fair dealing may occur when an employer is in violation of the

"public policy supporting the protection of employee privacy." n246

One of the plaintiffs, an employee who worked for an oil rig, was

drug tested and suspended because of a positive result. n247 That

plaintiff refused to take another drug test and in turn was

terminated. n248 A second plaintiff refused to submit to an initial

drug test and was also terminated. n249

 

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n245 Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska

1989) [hereinafter Luedtke I].

 

n246 Id. at 1130.

 

n247 Id. at 1125-26.

 

n248 Id. at 1126.

 

n249 Id.

 

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The Luedtke I court held that the terminations did not constitute a

breach of the covenant of good faith and fair dealing because of

"the competing public concern for employee safety present in the

case at bar . . . ." n250 The court also noted that even in cases

where drug testing is acceptable "the drug test must be conducted at

a time reasonably contemporaneous with the employee's work time"

n251 and "an employee must receive notice of the adoption of a drug

testing program." n252 In regard to the terminations of the

plaintiffs, these criteria were met. n253 The case was remanded to

determine if the suspension of one of the plaintiffs after he tested

positive to the initial drug test constituted a breach of the

covenant of good faith and fair dealing occurred. n254

 

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n250 Luedtke I, 768 P.2d at 1130.

 

n251 Id. at 1136.

 

n252 Id. at 1137.

 

n253 Id.

 

n254 Id.

 

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[*494] On remand, the trial court held that the employee did not

breach the covenant of good faith and fair dealing when it suspended

the plaintiff. n255 The case was again appealed to the Supreme Court

of Alaska. n256 On second appeal, the Supreme Court of Alaska held

that the employer's suspension of the employee violated the covenant

of good faith and fair dealing. n257 The court noted that the

covenant of good faith and fair dealing "requires that the employer

by objectively fair." n258 The court also noted that the plaintiff

"was tested for drug use without prior notice, that no other

employee was similarly tested, and that [the employer] suspended

[the plaintiff] immediately upon learning of the results of the

test." n259 The court stated that "as a matter of law, these facts

constitute a violation of the covenant of good faith and fair

dealing." n260

 

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n255 See Luedtke v. Nabors Alaska Drilling, Inc., 834 P.2d 1220,

1222 (Alaska 1992) [hereinafter Luedtke II].

 

n256 Id.

 

n257 Id. at 1226.

 

n258 Id. at 1250.

 

n259 Id. at 1226.

 

n260 Luedtke II, 834 P.2d at 1226.

 

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In a California appellate case, Luck v. Southern Pacific

Transportation Co., n261 the court upheld a jury's verdict that an

employer breached an implied covenant of good faith and fair dealing

when it terminated an otherwise satisfactory employee because she

refused to submit to a urinalysis test. n262 The court reasoned that

the plaintiff's job as a computer programmer could not be

characterized as a safety position. n263 The court stated:

 

Luck's job did not have sufficient safety aspects to constitute

a safety interest that might be balanced against the intrusion

upon her privacy rights. When we also consider that the interest

must be compelling in order to justify an intrusion of her

privacy rights under our state Constitution-a higher showing

than would be required under the Fourth Amendment analysis used

by federal courts-it is clear that the trial court's implied

ruling that Southern Pacific's safety interest did not justify

the invasion of Luck's privacy was correct. n264

 

 

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n261 Luck v. Southern Pac. Transp. Co., 267 Cal. Rptr. 618 (Ct. App.

1990).

 

n262 Id. at 634.

 

n263 Id. at 631.

 

n264 Id. at 631-32.

 

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Additionally, the court held that an employer's bad faith is a

prerequisite to a claim of wrongful termination due to contractional

breach of an implied covenant of good faith and fair dealing. n265

This is an evidentiary determination [*495] best left to the trier

of fact. n266 The court found that there was substantial evidence

that bad faith existed. n267 Therefore, the plaintiff had a claim

for wrongful termination. n268

 

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n265 Id. at 633.

 

n266 Luck, 267 Cal. Rptr. at 633.

 

n267 Id.

 

n268 Id. at 618.

 

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B. Intrusiveness of RIAH

 

Proponents of RIAH argue that hair analysis is less intrusive than

urinalysis or blood analysis because of the simpler collection

process. n269 In Skinner, the Supreme Court quoted the Fifth

Circuit's opinion in Von Raab as follows:

 

there are few activities in our society more personal or private

than the passing of urine. Most people describe it in euphemisms

if they talk about it at all. It is a function traditionally

performed without public observation, indeed, its performance in

public is generally prohibited by law as well as social custom.

n270

 

Similarly, the taking of blood is often a traumatic experience for

many employees because of the fear or discomfort associated with the

process. n271

 

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n269 Jordan, supra note 1, at 68.

 

n270 Stephen A. Plass, Testing Hair Follicles for Drugs: In Search

of Privacy, Accuracy, and Reliability, 42 LAB. L.J. 111, 113 (1991)

(citing Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602,

617 (1989), and quoting National Treasury Employees Union v. Von

Raab, 816 F.2d 170, 175 (5th Cir. 1987)).

 

n271 Id.

 

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As compared to urinalysis or blood analysis, the collection of hair

is nominally intrusive. Few people find a collection process in

which eighty or so hairs are cut from one's head embarrassing,

offensive, or traumatic. Yet, because of recent advances in

deoxyribonucleic acid (DNA) technology, greater amounts of

information can be obtained from blood and hair than previously

known. DNA can be extracted from both hair bulbs and white blood

cells. n272

 

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n272 LORNE T. KIRBY, DNA FINGERPRINTING 1 (1992).

 

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A 1990 report by the Office of Technology Assessment entitled

Genetic Monitoring and Screening in the Workplace n273 examines the

applications and limitations of such testing. n274 The report stated

the following:

 

Genetic monitoring and screening have the potential to

significantly change the workplace by detecting both

occupational and nonoccupational diseases. They can identify

genetic abnormalities which may be associated with inherited

diseases, susceptibilities, and [*496] traits in otherwise

healthy, asymptomatic individuals. The ability to diagnose

latent conditions (both occupationally and nonoccupationally

related) through genetic monitoring and screening raises policy

questions about the proper use of such technologies. n275

 

 

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n273 U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, GENETIC

MONITORING AND SCREENING IN THE WORKPLACE U.S. CONGRESS No.

OTA-BA-455 (1990).

 

n274 Id. at 3.

 

n275 Id.

 

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In 1996, a lawsuit filed in Boston's Suffolk Superior Court, by two

employees terminated for failure to comply with an RIAH test,

centered on the issue of genetic privacy. n276 The plaintiffs,

former employees of Boston based Global Access Telecommunications,

Inc., sued for wrongful termination. n277 The plaintiffs were fired

when they agreed to submit to urinalysis but refused to provide hair

samples for medical research and drug testing. The plaintiffs

"feared their hair would be used in genetic testing that could

reveal confidential information, such as sexual orientation or

predisposition to diseases that could be used to deny them insurance

coverage." n278 A stipulation of dismissal was filed in that lawsuit

in July, 1997. n279

 

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n276 John Ellement, Employees Sue Over Hair Samples, NAT'L L.J.,

Nov. 11, 1996, at B1.

 

n277 Id.

 

n278 Workers Allege Hair Tests Invade Genetic Privacy; Employee Drug

Testing, supra note 8, at 6.

 

n279 Stipulation of Dismissal, Werner v. Vyvx Corp., No. 96-5912

(Mass. Dist. Ct. filed July 16, 1997).

 

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The issue of genetic privacy was not examined by the Supreme Court's

1989 decisions in Skinner and Von Raab. As genetic testing becomes

more common, courts will need to address the constitutionality of

requiring employees to part with samples that could provide genetic

information.

 

Evidence of the growing importance of genetic information can be

seen through the Centers for Disease Control and Prevention's (CDC)

concerns that its procedures for obtaining consent from donors of

blood and tissue samples fall short of "new ethic rules" for genetic

research in the 1990s. n280 Karen Steinberg, chief of the molecular

biology branch at CDC's National Center for Environmental Health,

stated that the consent form in use was sufficient during the 1980s

but is inadequate for DNA research in the 1990s. n281

 

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n280 Eliot Marshall, Policy on DNA Research Troubles Tissue Bankers,

SCIENCE, Jan. 26, 1996, at 440.

 

n281 Id.

 

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In a law review article entitled Drug Testing in the Workplace,

authors Craig M. Cornish and Donald B. Louria expressed their views

on the future of privacy after Skinner and Von Raab. n282 The

authors feared that the trend toward an intrusion into employees'

privacy will lead to a future in which employers have genetic

databases on their employees. n283 The authors stated:

 

[*497] One of the techniques now being rapidly explored is the

isolation and identification of single genes that either promote

or suppress disease. These technological advances could also be

used for surveillance purposes. For example, an employer could

advise a person who has a gene that promotes lung cancer not to

augment that gene's activity by smoking or by exposing the gene

to common lung carcinogens in the workplace. The employer could

urge such individuals to get plenty of carotenes in their diets

or in dietary supplements to attempt to reduce their increased

risk of lung cancer. n284

 

In addition, "if the genome analysis enters a networked computer

system, the consequences for the employee could be catastrophic.

Such disclosures could affect employment opportunities, life

insurance or health insurance premiums, or bank loans." n285

 

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n282 Cornish & Lauria, supra note 186, at 101.

 

n283 Id. at 110.

 

n284 Id. at 109. The authors also stated:

 

having a group of employees with substantial health risks will

increase health insurance premiums and reduce the profits of the

employer. As genetic technology improves and gene therapy

becomes available, individuals who have been subjected to a

genetic test could be required to undergo treatment to modify

those genes that create extraordinary risks to illness or

disease. Having workers with healthy genomes could even result

in insurance premium discounts.

 

Id.

 

n285 Id. at 110.

 

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An argument can also be made that hair analysis is more intrusive

because as employer may obtain a "history" of an employee's drug

use. n286 This analysis "extends far beyond determining whether an

employee or prospective employee is fit to perform the job for which

he or she is tested, but rather elicits off-the-job activity that

may be stale or totally unrelated to the employment at issue." n287

This question along with questions regarding genetic privacy need to

be answered by future courts.

 

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n286 Ann M. O'Neill, Legal Issues Presented by Hair Follicle

Testing, EMPLOYMENT REL. TODAY, Winter 1991/1992, at 411.

 

n287 Id. at 411-12.

 

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VI. STATUTES

 

A. State Drug Testing Statutes

 

Several states have statutes authorizing employers to test employee

hair samples for drugs. An Arizona drug testing statute permits

employers to collect hair or other samples n288 from current or

prospective employees. n289 An [*498] employer under this statute

"does not include the United States, this state and its agencies

other than the department of public safety, any political

subdivision of this state or any native American tribe." n290

 

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n288 ARIZ. REV. STAT. ANN. § 23-493(7) (West Supp. 1997) (defines

"sample" as "urine, blood, breath, saliva, hair or other substances

from the person being tested).

 

n289 ARIZ. REV. STAT. ANN. § 23-493.01 (West 1995). The Arizona

Revised Statutes set forth circumstances in which an employer may

drug-test an employee. ARIZ. REV. STAT. ANN. § 23-493.04(B)-(C)

(West 1995). The statute states as follows:

 

B. Within the terms of the written policy, an employer may

require the collection and testing of samples for any

job-related purposes consistent with business necessity

including:

 

1. Investigation of possible individual employee impairment.

 

2. Investigation of accidents in the workplace. Employees may be

required to undergo drug testing or alcohol impairment testing

for accidents if the test is taken as soon as practicable after

an accident and the test is administered to employees who the

employer reasonably believes may have contributed to the

accident.

 

3. Maintenance of safety for employees, customers, clients or

the public at large.

 

4. Maintenance of productivity, quality of products or services

or security of property or information.

 

5. Reasonable suspicion that an employee may be affected by the

use of drugs or alcohol and that the use may adversely affect

the job performance or the work environment.

 

C. In addition to the provisions of subsection B, employees or

groups of employees may be required to undergo drug testing on a

random or chance basis.

 

Id.

 

n290 ARIZ. REV. STAT. ANN. § 23-493(4) (West Supp. 1997).

 

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A Florida statute entitled the Drug Free Workplace Act authorizes

any state government agency to test current or prospective

employees' hair samples or other samples n291 for drugs. n292 The

Act specifically addresses the standards and procedures required for

RIAH. Hair cutoff levels are mandated for both initial testing and

confirmational testing. n293 Additionally, the melanin fraction of

hair must be removed before analysis to reduce the risk of

hair-color bias. n294 It also requires specific standards to be met

for hair specimen collection, collection [*499] controls,

transportation of sample to testing facility, quality assurance,

quality control, proficiency testing, and satisfactory performance.

n295

 

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n291 FLA. STAT. ANN. § 112.0455(5)(k) (West Supp. 1998) (defining

"specimen" as "tissue, hair, or product of the human body capable of

revealing the presence of drugs of their metabolites").

 

n292 FLA. STAT. ANN. § 112.0455(4) (West 1992). The Florida Statutes

set forth circumstances in which employers may drug test an

employee. FLA. STAT. ANN. § 112.0455(7) (West 1992). The statute

states in part:

 

(7) Types of testing.-An employer is authorized, but not

required, to conduct the following types of drug tests:

 

(a) Job applicant testing . . .

 

(b) Reasonable suspicion . . .

 

(c) Routine fitness for duty . . .

 

(d) Follow up testing . . . .

 

Id.

 

n293 FLA. STAT. ANN. § 112.0455(13)(b) (West Supp. 1998).

 

n294 FLA. STAT. ANN. § 112.0455(13)(b)(2)(b) (West Supp. 1998). Some

drugs are "thought to bind preferentially to melanin." Harkey, supra

note 46, at 224.

 

n295 FLA. STAT. ANN. § 112.0455(13)(b)(3)-(5) (West Supp. 1998).

 

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Bass, the only Florida court case to address RIAH drug testing, was

decided in 1993 prior to the 1997 amendment to this Act which added

hair analysis as a permissible drug testing method. n296 Since the

Bass court held that RIAH test results are admissible, n297 it is

likely that future Florida courts will also determine that the hair

analysis tests pursuant to this statute are admissible as evidence

in court.

 

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n296 FLA. STAT ANN. § 112.0455 (West Supp. 1998).

 

n297 Bass v. Florida Dep't of Law Enforcement, 627 So.2d 1321 (Fla.

Dist. Ct. App. 1993).

 

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A Louisiana drug testing statute authorizes public employers to test

hair samples or other samples n298 of current or prospective

employees. n299 This statute also states that under certain

circumstances, public employers are required to drug test employees.

n300

 

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n298 LA. REV. STAT. ANN. § 49:1001 (West Supp. 1998) (defines

"sample" as "urine, blood, saliva, or hair").

 

n299 LA. REV. STAT. ANN. § 49:1015 (West Supp. 1998). The Louisiana

Revised Statutes set forth circumstances in which a public employer

may drug test an employee. LA. REV. STAT. ANN. § 49:1015 (A)-(C)

(West Supp. 1998). The statute states as follows:

 

A. A public employer may require, as a condition of continued

employment, samples from his employees to test for the presence

of drugs following an accident during the course and scope of

his employment, under other circumstances which result in

reasonable suspicion that drugs are being used or as a part of a

monitoring program established by the employer to assure

compliance with terms of a rehabilitation agreement.

 

B. A public employer may require samples from prospective

employees, as a condition of hiring, to test for the presence of

drugs.

 

C. A public employer may implement a program of random drug

testing of those employees who occupy safety-sensitive or

security-sensitive positions.

 

Id.

 

n300 LA. REV. STAT. ANN. § 49:1015(F)(1)(2) (West Supp. 1998). The

Louisiana Revised Statute sets forth circumstances in which a public

employer must drug test an employee. Id. The statute states as

follows:

 

(1) A public employer shall require samples to test for the

presence of drugs, as a condition of hiring, from prospective

employees whose principal responsibilities of employment include

operating a public vehicle, performing maintenance on a public

vehicle, or supervising any public employee who operates or

maintains a public vehicle.

 

(2) A public employer shall implement a program of random drug

testing of those employees whose principal responsibility is to

operate public vehicles, maintain public vehicles, or supervise

any public employee who drives or maintains public vehicles.

 

Id.

 

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[*500] A Maryland drug testing statute permits employers to test

hair samples or other samples n301 for drugs. n302 In regards to

drug testing through hair analysis, the statute limits the testing

of hair to pre-employment purposes. n303 In addition, an employer

who collects a hair sample may not "1. use a specimen that is longer

than one and one-half inches measured from the human body; or 2. use

the specimen for any purposes other than testing for controlled

dangerous substances." n304

 

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n301 MD. CODE ANN., Health-General, § 17-214(6) (1997) (defines

"specimen" as "(i) blood derived from the human body; (ii) urine

derived from the human body; or (iii) hair derived from the human

body as provided in subsection (b) (2) of this section").

 

n302 MD. CODE ANN., Health-General, § 17-214 (1997). "Job-related"

is defined as "any alcohol or controlled dangerous substance testing

used by an employer for a legitimate business purpose." MD. CODE

ANN., Health-General, § 17-214(a)(4).

 

n303 MD. CODE ANN., Health-General, § 17-214(b)(2)(ii) (1997).

 

n304 MD. CODE ANN., Health-General, § 17-214(b)(2)(iii) (1997).

 

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Utah has separate statutes in regards to drug testing of private and

public employees. The Utah statute dealing with private employers

n305 authorizes employers to test hair along with other samples n306

for drugs of current and prospective employees. n307 The Utah

statute dealing with public employers allows local government

entities or state institutes of higher education to test [*501]

hair samples or other samples n308 of current and prospective

employees and volunteers. n309

 

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n305 UTAH CODE ANN. § 34-38-2(3) (1997) (states in part that

"'employer' does not include the federal or state government, or

other local political subdivisions").

 

n306 UTAH CODE ANN. § 34-38-2(6) (1997) (defines "sample" as "urine,

blood, breath, saliva, or hair").

 

n307 UTAH CODE ANN. § 34-38-3 (1997). The Utah Code sets forth

circumstances in which a private employer may drug test and

employee. UTAH CODE ANN. § 34-38-7(a)-(3) (1997). The statute states

as follows:

 

(2) Within the terms of his written policy, an employer may

require the collection and testing of samples for the following

purposes:

 

(a) investigation or possible individual employee impairment;

 

(b) investigation of accidents in the workplace or incidents of

workplace theft;

 

(c) maintenance of safety for employees or the general public;

or

 

(d) maintenance of productivity, quality of products or

services, or security of property or information.

 

(3) The collection and testing of samples shall be conducted in

accordance with Sections 34-38-4, 34-38-5, and 34-38-6, and need

not be limited to circumstances where there are indications of

individual, job-related impairment of an employee or prospective

employee.

 

Id.

 

n308 UTAH CODE ANN. § 34-41-101(11) (1997) (defines "sample" as

"urine, blood, breath, saliva, or hair").

 

n309 UTAH CODE ANN. § 34-41-104 (1997). The Utah Code sets forth

circumstances in which a public employer may drug test an employee.

UTAH CODE ANN. § 34-41-102(3) (1997). The statutes states in part:

 

(3) A drug-fee workplace policy may include, but does not

require, drug testing under the following circumstances:

 

(a) preemployment hiring or volunteer selection procedures;

 

(b) postaccident investigations;

 

(c) reasonable suspicion situations;

 

(d) preannounced periodic testing;

 

(e) rehabilitation programs;

 

(f) random testing in safety sensitive positions; or

 

(g) to comply with the federal Drug Free Workplace Act of 1988,

41 U.S.C. 701 through 707, or other federally required drug

policies.

 

Id.

 

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B. Discrimination Statutes

 

Under the Americans with Disabilities Act of 1990 (ADA) n310 a

recovering addict who participates in a rehabilitation program is

considered a "qualified individual with a disability." n311

Employers are prohibited from discriminating against such

individuals. n312

 

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n310 42 U.S.C.A. §§ 12101-12213 (West 1995).

 

n311 42 U.S.C.A. § 12114 (West 1995).

 

n312 42 U.S.C.A. § 12112 (West 1995).

 

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The Rehabilitation Act of 1973 n313 provides further protection for

recovering addicts who are employed by government programs which

receive federal funds. n314 Moreover, many state statutes also

protect against discrimination of recovering addicts. n315

 

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n313 29 U.S.C.A. §§ 701-797(b) (West 1995).

 

n314 O'Neill, supra note 286, at 413.

 

n315 Id. See e.g., Douglas L. Stanley, Employee Drug Testing, J.

KAN. B. ASS'N, Jan. 1992, at 19, 25 (citing Doe v. Roe, Inc., 539

N.Y.S.2d 876 (Civ. Ct. 1989), in which the court held that an

employer violated a New York disability discrimination statute by

automatically disqualifying an employee who tested positive for

drugs).

 

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An employer who terminates an employee for testing positive on a

hair analysis test may be violating a disability discrimination

statute. n316 Because of hair analysis's longer window of detection,

a recovering addict may test positive for drug use that occurred

months before. n317 An employer may be able [*502] to avoid

liability by offering the employee an opportunity to explain a

positive result. n318

 

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n316 O'Neill, supra note 286, at 413.

 

n317 Id.

 

n318 Id.

 

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Title VII of the Civil Rights Act of 1964 n319 prohibits

discrimination in employment practices based on "race, color,

religion, sex or national origin." n320 42 U.S.C. § 1981 also

prohibits discrimination as follows: "All persons within the

jurisdiction of the United States shall have the same right in every

State and Territory to make and enforce contracts, . . . as is

enjoyed by white citizens . . . ." n321

 

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n319 42 U.S.C.A. § 2000(e) (West 1995).

 

n320 42 U.S.C.A. § 2000(a)(2) (West 1995).

 

n321 42 U.S.C.A. § 1981 (West 1994).

 

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As stated previously, controversy surrounds whether individual

differences in hair texture and type can affect drug outcomes. n322

Concerns exist as to whether an RIAH test could discriminate against

minorities or females. n323 If these claims are proven to be

correct, an employee terminated based on a positive hair analysis

test result may have a discrimination claim against his/her

employer. n324

 

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n322 See supra Part III.

 

n323 Id.

 

n324 Patricia A. Montgomery stated that:

 

although not prevalent, it is possible for an employee to assert

race, sex or age discrimination related to termination based on

a drug test result. This type of allegation could only be

supported if a drug testing program has a disparate impact on a

protected class of employees.

 

Patricia A. Montgomery, Workplace Drug Testing: Are There Limits?,

TENN. B.J., Mar.-Apr. 1996, at 20, 21.

 

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C. National Labors Relations Act

 

Collective bargaining between union members and their employers is

governed by the National Labor Relations Act (NLRA). n325 The

National Labor Relations Board (NLRB) has ruled that drug testing of

current employees is subject to collective bargaining. n326 Since

prospective employees are not employees within the meaning of the

NLRA, drug testing of prospective employees is not subject to

collective bargaining. n327

 

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- - - - - -

 

n325 29 U.S.C.A. §§ 151-169 (West 1995).

 

n326 O'Neill, supra note 286, at 413.

 

n327 Id. at 413-14.

 

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[*503] Employers who hire union workers cannot require drug

testing of current employees without a collective bargaining

agreement. This applies to hair analysis as well as to other methods

of testing. n328

 

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n328 Id. at 414.

 

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VII. CONCLUSION

 

This note has attempted to familiarize the reader with an

understanding of the legal implications that apply to employee drug

testing through hair analysis. A small string of cases have found

that RIAH test results are admissible. n329 These cases will be

strong authority for future cases deciding the admissibility of

RIAH.

 

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n329 See supra Part IV.B.

 

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Courts will undoubtedly apply the current case law on drug testing

through urinalysis and blood analysis to this matter. Courts should

be aware that an employer who uses RIAH gains access to genetic

information n330 along with a "history" of drug use. n331 Because of

this information, privacy issues associated with drug testing need

to be more closely examined so as to protect employees' rights.

 

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- - - - - -

 

n330 Workers Allege Hair Tests Invade Genetic Privacy; Employee Drug

Testing, supra note 8, at 6.

 

n331 O'Neill, supra note 286, at 411.

 

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Document 29 of 119.

 

 

 

 

 

 

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