The federal court for the District of Columbia ruled that a former employee of the D.C. Office of the Chief Medical Examiner (“OCME”) could proceed to trial with her claims that drug and alcohol tests she was required to take violated her Fourth Amendment rights against unreasonable searches as well as the Americans with Disabilities Act. Lewis v. Gov’t of Dist. Columbia, No. 15-521 (D.D.C. October 18, 2017).

Patricia Lewis worked as a Human Resources Advisor for the OCME. The OCME performed autopsies as well as other forensic and medico-legal investigations for the District.  In 2012, the employees in the OCME department were advised that their department was moving into a newly-built Consolidated Forensic Laboratory (“CFL”) which also would house a number of other departments, including the Department of Forensic Sciences, and the DNA laboratory and Firearms and Fingerprint Examination Division of the Metropolitan Police Department.  Because of the nature of the work being performed at the CFL, the District determined that all employees to be assigned to work in the CFL would be required to undergo mandatory criminal background checks and drug and alcohol tests.

Lewis refused to consent to the drug and alcohol tests. Because she wouldn’t sign the consent form and would not agree to be tested, Lewis was prohibited from working in the CFL and ultimately terminated for neglect of duty and insubordination.  In response to her termination, Lewis filed suit against the District, OCME and other District officials for violations of the Americans with Disabilities Act and her First and Fourth Amendment rights.  Both sides filed motions for summary judgment.  The Court denied Lewis’ motion, and granted in part and denied in part Defendants’ motion.

The Court first reviewed Lewis’ claims that she was fired in retaliation for exercising her right to free speech. The Court reviewed Lewis’ position as a H.R. Advisor and determined that Lewis was not speaking as a citizen; rather, she made comments objecting to the drug and alcohol tests in relation to her job and, therefore, the speech was not protected.

The Court then turned to Lewis’ claim that the drug test violated her Fourth Amendment right to be protected from unreasonable searches, a claim that the Court characterized as the “heart of the suit.” The Court first recognized that public employees “have a serious and legitimate privacy interest in not being subject to random drug tests.” Therefore, the Court considered whether the District had demonstrated a legitimate need for the drug test.  In support of its position, the District asserted that Lewis would have unlimited access to “rooms containing sensitive and/or confidential material, the exposure of which could disrupt the justice system.”  The “unbridled access” to the information, the District argued, necessitated blanket drug testing of all employees in the CFL.  Lewis denied that she would have had access to anything other than confidential personnel files in her role as an H.R. Advisor.  The Court was unpersuaded that the drug testing was warranted based on “office security” alone and held that the District failed to show a “clear, direct nexus between the nature of the employee’s duty and the nature of the feared violation.” Due to the material disputed facts, the Court denied both motions for summary judgment on the Fourth Amendment claim.

Finally, the Court reviewed Lewis’ ADA claims that the drug testing illegally required her to disclose alcohol and prescription drug use. It is well established that, under the ADA, an employer “cannot make inquiries of an employee as to existence or extent of her disability unless such knowledge is shown to be job-related and consistent with business necessity.”  The Court determined that the District had not “established beyond dispute here that the substance use testing is job related or necessary.” As a result, the Court decided that there was a triable issue of material fact on whether the drug and alcohol tests violated the ADA.

The case highlights the danger for public employers who conduct random or “blanket” drug and alcohol tests of employees who do not occupy dangerous, safety-sensitive positions.