A state sewerage authority’s drug testing policy calling for random, suspicionless testing withstood a constitutional challenge yesterday.

The U.S. Court of Appeals for the Third Circuit affirmed a lower court’s grant of summary judgment in favor of the state authority in Mollo v. Passaic Valley Sewerage Comm’rs, 3d Cir., No. 10-1340 (unpublished opinion), following U.S. Supreme Court precedent for when a public employer’s random drug testing program is justified.

The Passaic Valley Sewerage Commissioners (PVSC) is a state-created water authority that manages and regulates wastewater collection and disposal for parts of northern New Jersey. PVSC employees work near combustible and/or hazardous chemicals, poisonous air, high-voltage equipment, raw sewage, and potentially dangerous walkways. In 2005, based on anonymous reports of drug and alcohol abuse by its employees, PVSC implemented a drug testing policy applicable to employees whose work is “safety sensitive.”

David Mollo worked in a landscaping position with PVSC, and his job required use of vehicles and other motorized equipment in dangerous places. According to the Court, the employee described himself as a “weed whacker,” although his job entailed landscaping and snow removal throughout the treatment plant, requiring that he use vehicles and motorized equipment and be available on a 24-hour basis. The employee was terminated after twice testing positive for drugs. PVSC determined that Mollo’s position fell into the “safety sensitive” category.

When Mollo tested positive for drugs and PVSC terminated his employment, he challenged the drug testing policy under the New Jersey and U.S. Constitutions as a violation of his right not to be subject to unreasonable searches and seizures.

Suspicionless drug testing by public employers may be appropriate where “special governmental needs” require the testing, such as in an industry that is “regulated pervasively to ensure safety,” the U.S. Supreme Court has held. Following that precedent, the Third Circuit noted here that PVSC was subject to consistent regulatory oversight by the Occupational Safety and Health Administration (OSHA) and that Mollo was well aware of the safety concerns inherent in his work. Taken together, the Court found that Mollo had a diminished expectation of privacy. PVSC also aptly demonstrated that PVSC’s drug testing program, as applied to Mollo, passed the reasonableness test in that individuals in his position “could cause significant damage to the PVSC plant and/or serious if not life-threatening harm to themselves and others” if under the influence of drugs or alcohol.

Ballard Spahr has considerable experience in drafting and implementing drug testing policies for public and private employers. If you are interested in implementing a random drug testing policy, please contact Brian D. Pedrow, 215.864.8108 or pedrow@ballardspahr.com, or any member of our Labor and Employment Group.

Copyright © 2011 by Ballard Spahr LLP.
(No claim to original U.S. government material.)

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher.

This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

Related Practice