demonstrate just how intrusive the process is. Foremost among them, the plaintiff contends, is the "apprehension" it engenders, the apprehension being that a subject will test positive for drug metabolites, and be sanctioned accordingly, even if he or she has not illegally used drugs. (Conspicuously omitted is any mention of an "apprehension" that illegal drug use might be discovered.)
But the drug testing procedures employed by Customs involve many safeguards to assure that disputed reports of drug use will not survive without verification. These include elaborate chain-of-custody requirements, mandatory confirmation testing of positive samples by independent laboratories, and a personal review of all positive results by a licensed physician reviewing officer, including exploration of the possibility of innocent alternative medical explanations. Draft Directive, supra at §§ 10-13, 18; Mandatory Guidelines, 53 Fed. Reg. at 11,982-86.
Next on plaintiff's list of specific injuries done to the privacy of the test subjects is that those who test positive because they are legally receiving prescription medication for various ailments will be forced to disclose private medical facts in order to convince the testing authority that the results does not warrant discipline. The fact that one is receiving medication by prescription is a matter that an employee might, perhaps, prefer to keep to himself, but it is by no means uncommon for an employer to become legitimately aware of a previously unknown medical condition of an employee in other contexts -- in the course of approving or excusing absences from work, for example, or making or arranging for the payment of benefits, or altering working conditions to accommodate an illness. In short, although the knowledge that an employee is taking medication may be deserving of respect and treated by the employer with discretion, it does not rank particularly high on the scale of inviolability of those matters that may be kept with impunity from an inquisitive employer.
Finally, it appears that Customs' collection and testing procedures do not confront the subjects with experiences so repugnant to the sensibilities of the average citizen (or of the reasonable Customs employee) as to give rise to outrage at the intrusiveness of it all. Customs' program is standard, routine, and appears to the Court to be designed to minimize any associated indignities to the greatest extent practicable without substantial sacrifice of reliability. See generally Department of Health and Human Services, Mandatory Guidelines for Federal Workplace Drug Testing Programs, 53 Fed. Reg. 11,970, 11,979 (Apr. 11, 1988). The testing subject is, for example, permitted to void the sample in private; the act of micturition is unobserved unless the official in charge "has reason to believe that a particular individual may alter or substitute the specimen to be provided." Id. at 11,980; see id. at 11,980-92.
These procedures should precipitate a level of embarrassment no more severe than that occasioned by a routine visit to a physician's office, and far less so than a trip to a crowded public restroom. Other than by abandoning drug screening altogether, the Court cannot envision a less inhibiting means by which the Customs Service could effectively detect and/or deter drug use by those of its employees in a position to compromise the TECS II and ACS database information.
Urine is, after all, simply a bodily waste product. Once excreted, it is universally discarded by everyone into a receptacle for eventual disposal by public sanitation authorities. It is doubtful that most Americans know or care what happens to their urine after it is voided and flushed from the toilet, and in all probability care far less so than they care about what might be learned about them from examining their household refuse. See California v. Greenwood, 486 U.S. 35, 100 L. Ed. 2d 30, 108 S. Ct. 1625 (1988) (no expectation of privacy in abandoned rubbish left for collection outside the home).
A complete chemical analysis of urine reveals relatively little of a personal nature about the subject, the composition of which is common to everyone and is certainly less distinctive to the individual than is, for example, a fingerprint or a photograph, items often required as conditions of employment without ever, to this Court's knowledge, provoking a Fourth Amendment objection. Drug-screen urinalyses such as those employed in Customs' program reveal even less; they test only for the presence of controlled substances -- opiates; phencyclidine; amphetamines; and marijuana and cocaine metabolites -- which should not ordinarily be found in anyone's urine without medical justification. Consequently, an accurate positive result reveals nothing about the subject other than that he or she is under medical treatment or has broken the law. Whether the latter fact is entitled to privacy protection is an issue not raised by this case.
For the foregoing reasons, it is, this 1st day of July, 1993,
ORDERED, that the defendant's motion for summary judgment is granted, and the plaintiff's motion for summary judgment is denied; and it is,
FURTHER ORDERED, that judgment is entered in favor of defendant United States Customs Service and against plaintiff National Treasury Employees Union; and it is
FURTHER ORDERED, that the plaintiff's motions for temporary restraining order and preliminary injunction are denied as moot; and it is
FURTHER ORDERED, that the plaintiff's complaint is dismissed with prejudice.
Thomas Penfield Jackson
U.S. District Judge