not a prerequisite to a constitutional search. See Shoemaker, 795 F.2d at 1142-43; PBA, slip op. at 6.
Regardless of the merits of Burnley on its facts, we find the type of search before us to be minimally intrusive. Given the strong governmental interest and the ineffectiveness of a reasonable suspicion standard in this case, we hold that individualized reasonable suspicion is unnecessary and that the tests before us need only be conducted pursuant to a uniform policy that prevents the arbitrary exercise of official discretion. See Shoemaker, 795 F.2d at 1143; SEPTA, 678 F. Supp. at 551.
The Authority's policy is uniform and non-discretionary. Every employee must submit to an examination and testing at the same time, the anniversary of his starting-date. There is no room for official discretion either in the selection of employees to be tested or the scheduling of the test.
Our analysis does not end here. Our balancing of public and private interests establishes the applicable standard of reasonableness. We have concluded that a standard requiring this type of search to be non-discretionary and to be carried out pursuant to a uniform policy is appropriate. See United States v. Martinez-Fuerte, 428 U.S. 543, 49 L. Ed. 2d 1116, 96 S. Ct. 3074; Colorado v. Bertine, 479 U.S. 367, 93 L. Ed. 2d 739, 107 S. Ct. 738 (1987) (inventory searches). Now, we must examine the particular search involved in this case to determine whether, tested by the standard we have deemed appropriate, it was justified at its inception and "'reasonably related in scope to the circumstances which justified the interference in the first place.'" New Jersey v. T.L.O., 469 U.S. 325, 341, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985) (quoting Terry v. Ohio, 392 U.S. 1, 20, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)).
Since the standard applicable to this case does not require suspicion directed at a particular person and since only the testing program, not any particular instance of testing, is before us, examination of the justification at the inception of a particular search has little role in this case. The governmental interests that justify dispensing with reasonable suspicion likewise justify the Authority's program of uniform, non-discretionary testing. If in a particular instance, a test is pretextual or deviates from the Authority's uniform policy, the individual to be tested may challenge the test on that ground. See Martinez-Fuerte, 428 U.S. at 559; Bertine, 93 L. Ed. 2d at 747 n.6, 748.
The inquiry into the reasonableness of the relationship between the testing method and the interests it is to serve requires an examination of the method's effectiveness. The search must be "a 'sufficiently productive mechanism' for achieving its purpose, for no privacy invasions should be permitted unless some good end is served." Von Raab, 816 F.2d at 180 (quoting Delaware v. Prouse, 440 U.S. at 659).
The relationship between the testing method at issue here and the prevention of on the job impairment is questionable in several respects. First, since neither the EMIT nor the GC/MS test detects the amount of a substance in the employee's body, the testing does not indicate whether the subject was impaired at any time. See Burnley, 839 F.2d at 587. Second, since many of these substances may remain in a person's blood and urine in detectable amounts for periods of time ranging from several hours for alcohol to several weeks for marijuana, testing will not determine time of use and whether it occurred on or off the job. See McBay Depo. 29-32, 49-50. Third, from a positive result, one may conclude only that on some unspecified occasion the subject ingested this substance. This does not indicate that the worker is likely to show up for work impaired or use drugs or alcohol on the job. See Taylor, 669 F. Supp. at 1437. Fourth, the advance notice a worker has of when his physical will take place enables him to abstain and cleanse his system before his test. Thus, the test is unlikely to detect any users. In fact, it may encourage in management a false sense of security. See Von Raab, 816 F.2d at 184 (Hill, J. dissenting).
Although these objections all have some validity, we conclude that the Authority's drug testing program will serve the laudable goal of fostering a drug-free and sober workforce. That an individual has used drugs or alcohol on some occasion does not compel the conclusion that he will use drugs or alcohol on the job or will show up for work impaired, but, generally, those who have used these substances once are more likely to use them again than those who have never used them. See Borsari v. Federal Aviation Administration, 699 F.2d 106, 111 (2d Cir. 1983) (upholding a civil servant's termination for off-duty possession of marijuana and cocaine as promoting the efficiency of the service); McDonnell v. Hunter, 809 F.2d 1302, 1308 (8th Cir. 1987) (correctional officers who use drugs are more likely to supply them to inmates). The Authority has a right to determine which workers pose a potential problem and to take steps to prevent that potential from erupting into a tragedy.
Further, the advance notice accompanying this testing makes it more likely that a positive test result indicates a serious problem. Most occasional users will abstain and cleanse their systems before their test. Those who do not, despite the great advance notice they have, are more likely to be chronic users and addicts, unable to abstain from drinking or drug use for any substantial length of time. Von Raab, 816 F.2d at 180; see McBay Depo. 80-81. Chronic users and addicts probably will use drugs or alcohol on the job at some point. See Taylor, 669 F. Supp. at 1437-38.
Despite the advance notice, this testing may deter workers from using drugs. The time it takes a drug to leave the body may vary considerably; workers may decide to abstain entirely rather than run the risk that their last uses were remote enough to leave no trace. See Von Raab, 816 F.2d at 180. This deterrent effect will help to achieve the Authority's legitimate goal of keeping its workforce drug-free.
We do not believe that these tests will foster a false sense of security in management. The Authority's executive director was aware that the medical examinations probably would detect only chronic users; at this point, that is the Authority's objective. We are impressed with the reasonableness of the Authority's position and the concern its policy shows for its employees' rights and welfare. Right now, the Authority does not face a serious substance abuse problem; consequently, it has restricted its testing program to relatively unobtrusive measures designed to prevent the emergence of a problem. The program's goals are modest, though important, and reasonable in light of the situation. We hardly think that the Union ought to complain that the Authority has not adopted more effective and more intrusive measures, such as random testing or the daily testing suggested by plaintiffs' expert, Dr. McBay. See McBay Depo. 49-50.
Finally, the union asserts, through the testimony of Dr. McBay, that marijuana and cocaine do not impair performance. Since marijuana remains in the body in detectable traces longer than any other substance for which the Authority tests, it is most likely to cause a positive result despite an employee's efforts to abstain. Thus, plaintiffs argue, the Authority's policy is directed primarily at substances which do not impair performance and these searches bear no relationship to the legitimate purpose of guaranteeing a clear-minded workforce.
We find Dr. McBay's testimony on the effects of cocaine and marijuana unconvincing, and we reject it. We find more persuasive the conclusion expressed in defendant's deposition exhibit 2: that exhibit reports that a study of pilots found that twenty-four hours after smoking marijuana, the pilots showed serious impairment on flight simulation tests. Yesavage, Leirer, Denari, and Hallister, Carry-Over Effects of Marijuana Intoxication on Aircraft Pilot Performance: A Preliminary Report, 142 Am.J. Psychiatry 1325 (1985). Dr. McBay's opinion is also contrary to the conclusion of the Federal Railroad Administration, after public hearing and comment, that marijuana played a causal role in several serious railroad accidents. See 50 Fed.Reg. 31508, 31515-25.
We conclude that there is no reasonable probability that the Authority's drug and alcohol testing program violates the Fourth Amendment. The Authority need not have individualized reasonable suspicion to test its bus drivers and mechanics for drugs and alcohol during their routine annual medical examinations. For this type of search, the Fourth Amendment requires only that the tests take place pursuant to a uniform, non-discretionary policy, and they do. This testing program bears a reasonable relationship to the Authority's legitimate goal or insuring employee and public safety by fostering a work environment free of the effects of alcohol and controlled substances. We will deny plaintiffs' motion for a preliminary injunction.
An appropriate order will follow.
ORDER OF COURT
AND NOW, this 19th day of July, 1988, IT IS ORDERED that plaintiffs' motion for a preliminary injunction is denied for the reasons stated in this court's memorandum opinion of this day; and,
IT IS FURTHER ORDERED that within twenty (20) days of this order the plaintiffs file with the court a statement of whether they intend to pursue this action any further; and, if they do, a statement of the issues that remain to be tried. If plaintiffs fail to file this statement as ordered, the court will assume that the memorandum opinion and order of today dispose of plaintiffs' claim, and the court will enter judgment for the defendant.