LODER v. CITY GLENDALE (1994)

This taxpayer's action challenges the validity of promotional and preemployment drug testing conducted by the City of Glendale.   Both the taxpayer (hereafter Ms. Loder) and the City of Glendale appeal from judgment granting an injunction against certain aspects of the program, denying it as to others, and awarding attorney's fees to Ms. Loder.

Appellant and cross-respondent Ms. Loder contends the trial court should have issued a broader injunction and should have allowed more attorney's fees and costs than it did.   Respondent and cross-appellant City of Glendale (hereafter City) contends the trial court erred in restricting its drug testing program in any manner and should not have awarded any attorney's fees.

In the published portion of this opinion, we conclude the City has failed to demonstrate sufficient justification for mass testing of all job applicants and promotional candidates.   We also conclude that sufficient justification was demonstrated as to some, but not all, of the job categories as to which the trial court allowed testing.   Therefore, we remand for further proceedings consistent with this opinion.

FACTS

In 1985 and 1986, City's personnel department noted an increase in the number of employee disciplinary cases in which substance abuse was a significant factor and an increase in voluntary referrals of substance abuse cases.   A pilot program was instituted which involved drug testing of candidates who were being considered for final appointment.   That program revealed a failure rate of 21 percent.¹

On April 23, 1986, the City adopted a drug and alcohol screening program pursuant to which every job applicant and every employee seeking a promotion was tested, without regard to the position sought and without reason to suspect use or abuse of drugs.   In support of this policy, the City created a “justification” for each and every employee position in the city including clerical workers, library workers, engineers, professional staff, managers and supervisors.

Pursuant to this program, job and promotional applicants are requested to sign a written consent for medical examination.   The form includes a place to list all medications and drugs being taken at the time.   Applicants who refuse to sign the consent form are medically disqualified and advised that the disqualification will remain in effect for the applicant's entire period of eligibility for the job.   Those who consent are subjected to a medical examination which includes the collection of a urine sample.

The procedure for collecting the sample begins with the breaking of a seal on an empty sterile container which is then given to the applicant.   A medical representative accompanies the applicant, who is garbed in a hospital gown, to the restroom.   The medical representative stands in a cubicle next to the applicant.   There is no direct visual observation of the applicant urinating.   To prevent fraud, blue water is used in the toilet bowls and the temperature of the urine sample is tested.   If the urine is cold, the applicant is requested to provide another sample.

A “dipstick” test is used to determine whether there is any blood, sugar or protein in the urine, after which the container is sealed.   A certified laboratory tests the urine, using an enzyme immunoassay (EMIT) test, for amphetamines and methamphetamines (including speed and crystal), benzodiazepines (including Valium, Librium, Oxazepam, Serex, Dalmine), barbiturates (including Amobarbital, Butabarbital, Pentobarbital, Phenobarbital, Secobarbital), cocaine, methadone, methaqualone (i.e., Quaalude), opiates (including codeine, heroin, morphine, hydromorphone, hydrocodone), PCP, marijuana and alcohol.   A positive test is confirmed by gas chromatography/mass spectrophotometry (GCMS).

If the test reveals the presence of drugs for which the applicant has no legitimate medical reason, the applicant is disqualified.   A disqualified job applicant is ineligible for the period during which the job is offered or until other openings occur.   A disqualified promotional applicant is referred to a mandatory assistance program which includes group counseling and a wide variety of educational programs.   Disqualified applicants may appeal to the Glendale Civil Service Commission.

All positive test samples are retained by the laboratory for 12 months to allow for retesting at the direction of the Civil Service Commission or the request of the applicant.   Upon the applicant's request, the retesting is limited to gas chromatography at one of three laboratories.   The applicant must agree the results may be released to the City's personnel division.   If the second test is also positive, the applicant's appeal may be denied or the Civil Service Commission may subject the original sample to a test conducted by another qualified laboratory.   If the third test is negative, a doctor who conducts medical exams for the City recommends qualification or disqualification to the Civil Service Commission.

Chain of custody procedures begin with the signing of a chain of custody form by the applicant and the medical representative at the time the sample is collected.   This form is placed in a special laboratory envelope along with the sample.   The envelope is picked up by the laboratory, which examines the sealed sample for signs of tampering and assigns a serial number to avoid individual identification.   During the time the sample is in the possession of the laboratory a positive chain of custody is kept at all times and the laboratory is secured by magnetically controlled doors.   If a specimen screens positive, a portion of the sample is assigned a separate chain of custody for gas chromatography/mass spectrophotometry confirmation.   Following this analysis, a scientist reviews the chain of custody information and certifies the report, which is then sent to the physician.   If an applicant files an appeal, the specimen is shipped under strict chain of custody procedures to a selected laboratory for testing.

It is the city's position that “Each and every job in the City of Glendale ․ affects the public health, safety, welfare, benefits, morals or fisc,” and 56 of the City's job categories involve the immediate safety of the employee or others.²  Each year approximately six of City's 1,650 employees are involved in its Employee Assistance Program due to substance abuse problems.   This costs the City approximately $90,000 per year.   It also creates morale problems for other employees and results in decreased productivity.

The trial court found the City had a compelling interest in conducting drug testing, and a compelling need for information on drug use in light of its showing of an existing problem of employee drug abuse.   After balancing (as to each and every job category) the privacy interests against the government interest, the trial court concluded that employee testing was justified in the absence of individualized suspicion, but not as to all job categories.

The court sustained drug testing for the following categories:  police department personnel, community service officer, jail administrator, police department helicopter mechanic, identification technicians, records and identification administrator of the police department, clerical staff of the police department, fire department personnel, fire department clerical personnel, shop superintendent for civic center garage, equipment mechanic and senior equipment mechanic, service worker, mechanic helper, electrical services construction personnel, electrical dispatch center personnel, electrical engineering personnel, senior building repairer and building repairers, facilities maintenance personnel, street and field services administration personnel and operations personnel, integrated waste management personnel, mechanical maintenance superintendent and supervisor, sanitation truck operators and workers, equipment welder, mechanic and mechanic helper, service worker, storekeeper and janitor, reprographics administrator, duplicating machine operator, duplicating shop operator, power plant personnel, director of public service, water services engineering personnel, water services operations personnel, equipment operator II and water systems helper, health services administrator and administrative assistant, permit services personnel, building inspectors, city engineer's office, traffic and transportation personnel, parks, recreation and community services (with the exception of certain employees), seasonal laborer, pesticide applicator, equipment operator, gardeners, maintenance workers, park ranger, lifeguards, data services personnel, customer services administrator, supervisor, field representative and conservation personnel, community development and housing personnel, finance and administrative services professional personnel, city treasurer clerical personnel, finance and administrative services clerical personnel, and parking meter collector.

The trial court enjoined the drug testing program in the absence of reasonable grounds for individualized suspicion of illicit drug involvement, as to custodial personnel, street section clerical personnel, clerical staff in integrated waste management, senior graphics illustrator, graphics illustrator, pasteup artist and display artist, meter reader and meter reader supervisor, public service division clerical personnel, city attorneys and their secretaries, clerks and stenographers, permit services center clerical personnel, personnel and employee relations division, city engineer's clerical personnel, planning section personnel, planning services clerical personnel, parks secretary and clerical personnel, finance and administrative services personnel, public works administration, city manager's office personnel, city manager and community relations coordinator, clerical personnel in the city manager's office, redevelopment agency personnel and clerical support, public service division customer service clerical personnel, clerical personnel in community development and housing, maintenance workers in the community development and housing section, library personnel, city clerk personnel, public works clerical personnel, clerical personnel in the building section, purchasing personnel, fire department executive assistant, finance and administrative services internal audit personnel, and power plant senior accountant.

The trial court explained that the injunction was applicable only to “the drug testing aspects of the existing preemployment and pre-promotional drug testing program” and did not extend to “conducting the remainder of the existing physical examination as to the above position categories, including the taking of urine samples from the applicants or employees for purposes other than the detection of illegal drug use, including for ascertainment of medical condition and physical fitness.”

I

The parties agree the relevant facts are essentially without dispute and that the validity of City's drug testing program presents an issue of law which must be decided de novo.  (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40, 47, 26 Cal.Rptr.2d 834, 865, P.2d 633.)

 Although a large body of federal law has developed in the area of employee drug testing,³ there is no controlling California case law.   Federal and state courts agree, however, that the collection and testing of urine infringes upon legally protected privacy interests (Skinner v. Railway Labor Executives' Assn. (1989) 489 U.S. 602, 617, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639;  Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 41, 26 Cal.Rptr.2d 834, 865 P.2d 633), and that the validity of an employer's drug testing program must be determined by balancing the privacy interests of the employee against the interests promoted by the search.   (Ibid.)  The California Supreme Court has declared that when the source of the asserted privacy interest is the state Constitution, a court must determine whether the drug testing program in question results in a serious invasion of a specific, legally protected privacy interest as to which the employee has a reasonable expectation of privacy under the circumstances, and if so, whether the invasion is, nevertheless, justified.  (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at pp. 35–38, 26 Cal.Rptr.2d 834, 865 P.2d 633.)

 Following the Hill court's approach, we begin our analysis with an identification of the privacy interests at stake.   City's drug program invades two types of privacy:  the interest in precluding the unnecessary collection, compilation and dissemination of sensitive and confidential information, i.e., “informational privacy,” and the interest in conducting personal activities without observation or intrusion, i.e., “autonomy privacy.”  (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at pp. 35–36, 26 Cal.Rptr.2d 834, 865 P.2d 633.)   The process by which urine is collected for testing invades autonomy privacy.   Bodily excretory functions are expected in our society to be conducted in the utmost privacy.   “There are few activities in our society more personal or private than the passing of urine.   Most people describe it by 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.”  (National Treasury Employees Union v. Von Raab (1987) 816 F.2d 170, 175, affd. in part, revd. in part Treasury Employees v. Von Raab (1989) 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685.)   The societal expectation of privacy in the act of urination is so basic that federal courts deem the collection and testing of urine to constitute a search within the meaning of the Fourth Amendment.  (Skinner v. Railway Labor Executives' Assn., supra, 489 U.S. at p. 617, 109 S.Ct. at p. 1413.)   Informational privacy is invaded by both the chemical analysis of the urine and the requirement that applicants disclose all medications they are taking.   Courts have long recognized that “chemical analysis of urine, like that of blood, can reveal a host of private medical facts about an employee, including whether he or she is epileptic, pregnant, or diabetic.”  (Skinner v. Railway Labor Executives' Assn., supra, 489 U.S. at p. 617, 109 S.Ct. at p. 1413.)   A similar host of private facts is revealed by the identification of medications which the City requires as part of its testing program.   Due to this requirement, the City learns such personal information as, e.g., whether a job applicant or a promotional candidate takes birth control pills.   Therefore, the City's drug testing program clearly infringes upon physical functions and information of the most personal nature.

 Given this conclusion, it may seem rhetorical to question whether job applicants and promotional candidates have a reasonable expectation of privacy in the act of urination and the information revealed by chemical analysis and identification of medications taken.   There are situations, however, in which social norms dictate that the degree of privacy which might otherwise be expected in such information is diminished.   In the employment context, diminished expectations of privacy have been found where the job involves some “special, and obvious, physical and ethical demands” (Treasury Employees v. Von Raab, supra, 489 U.S. at p. 679, 109 S.Ct. at p. 1398), such as the need to protect “truly sensitive” information and the integrity of the nation's borders (ibid.), the need for close regulation of industries such as nuclear power (IBEW, Local 1245 v. U.S. NRC (9th Cir.1992) 966 F.2d 521, 525), the physical and emotional requirements essential to safe and effective fire fighting, law enforcement and public transportation (American Fed. of Govern. Emp., Local 1533 v. Cheney (N.D.Cal.1990) 754 F.Supp. 1409, 1422–1423;  McCloskey v. Honolulu Police Dept. (Hawaii 1990) 71 Haw. 568, 799 P.2d 953, 958;  Skinner v. Railway Labor Executives' Assn., supra, 489 U.S. 602, 109 S.Ct. 1402), and security of prisons (McDonell v. Hunter (8th Cir.1987) 809 F.2d 1302).   Job titles such as, e.g., police officer, fire fighter, paramedics, helicopter pilots, helicopter mechanics and electrical services construction personnel, do involve such special and obvious demands.   As to those jobs, applicants have a diminished expectation of privacy.   As to all other City jobs, however, an applicant's expectation of privacy in excretory functions and medications is not diminished simply by virtue of an application for employment or promotion.

 If the employer gives sufficient advance notice that employees will be required to participate in urinalysis for drug testing purposes, this fact provides an additional basis for a diminished expectation of privacy.   (Kemp v. Claiborne County Hosp. (S.D.Miss.1991) 763 F.Supp. 1362, 1368;  McKenzie v. Jackson (2 Dept.1989) 152 A.D.2d 1, 547 N.Y.S.2d 120, 124.) ⁴  This concept has obvious logical limits, however.   An employer cannot be allowed to decimate the right to privacy by simply giving notice that it will not be respected.   The invasion must, at the very least, be one which society regards as relatively inoffensive under the circumstances.   Thus, notice is a factor which should be taken into consideration only if the invasion is otherwise permissible.   It is undisputed that City gives notice of its drug testing program to all job applicants and promotional candidates.   Therefore, to the degree that the privacy invasions involved in the testing are not illegal or otherwise socially unacceptable, this notice serves to diminish the reasonable expectation of privacy held by City's job and promotional applicants.

 Analysis of the seriousness of the invasion must take into consideration both the breadth of the program and the manner in which the testing is implemented.   The parties stipulated that City tests “every job applicant” and “every employee who seeks a promotion.”  (Emphasis added.)   If this were the case, the invasion would be serious for that reason alone.   Subjecting thousands of persons to the indignity of monitored urination would, by any standard, constitute a serious invasion of privacy.   A fortiori, the compilation of medication profiles of all applicants would be nothing short of oppressive.   Counsel for both parties agree, however, the true fact is that testing is not required until an offer of employment has been made.   Therefore, our analysis will proceed on that assumption, despite the record to the contrary.   The question then becomes whether testing of applicants for all jobs, including those which have no remarkable or unusual physical or ethical requirements, exacerbates the seriousness of the invasion.   The answer is in the affirmative.   The greater the number of persons subjected to the test, the more serious the intrusion.

 As to the manner of testing, procedures similar to those involved in City's program were found to be permissible in Treasury Employees v. Von Rabb, supra, 489 U.S. at page 699, 109 S.Ct. at page 1441.   In that case, however, the employee was required to remove only outer garments, such as a coat or a jacket, and was allowed to produce the sample either behind a partition or in a bathroom stall.   Here, the employee is garbed in underwear and a hospital gown.   The parties stipulated that there is “no direct visual observation” of the applicant, but this statement is quite vague and leaves open the possibility of indirect visual observation.   Given the fact that the applicant has on minimal clothing in which to smuggle a counterfeit sample, indirect observation of any type is an unnecessary intrusion into whatever physical privacy remains under these circumstances.

 Even more important to our analysis of the seriousness of the intrusion is the requirement that the applicants identify all medications which they are taking.   City claims this information is necessary to the validity of the test.   As a result of this requirement, City learns, even without the chemical analysis, things it has no right to know.   For example, if the applicant responds that he or she is taking AZT, insulin or tamoxafin, the employer has, in effect, been informed that the applicant has been diagnosed as being HIV positive, or having diabetes or breast cancer, respectively.   Or, to cite our earlier example, if an applicant is taking birth control pills, the employer has learned that the applicant is a sexually active woman of heterosexual orientation.   This privacy intrusion is not only unnecessary, it is illegal.

The Americans With Disabilities Act (42 U.S.C. §§ 12101–12213 and 47 U.S.C. §§ 225, 611) prohibits direct questions concerning physical condition and medical history unless and until a conditional job offer has been made.  (42 U.S.C. § 12112(d)(2)(A).) ⁵  Even after a job offer, questions concerning physical condition and history must be limited to those related to job functions.  (42 U.S.C. § 12112(d)(4)(A).)   State regulations designed to implement parallel protections under the California Fair Employment and Housing Act, prohibit employers from asking whether an applicant has “ ‘any particular disabilities' ” or “ ‘any of the following diseases or conditions.’ ”  (Cal.Code Regs., tit. 2, § 7294.0, subd. (b)(2).)   Despite these restrictions, the questionnaire which must be completed as part of City's drug testing program may reveal, indirectly, answers to questions which could not be asked directly.

City argues that the identification of medications being taken does not seriously invade privacy because applicants are also required to undergo a medical evaluation (including urinalysis) in which they are asked whether they have or ever had “heart trouble, coughed up blood, jaundice, cirrhosis, piles or rectal bleeding, loss of memory, recent weight gain or loss, alcohol or drug problems, depression, gynecological history, emotional or mental disorders, attempted suicide, sugar in urine, a cyst” and other questions which City admits are highly personal.   This argument is quite remarkable because it is clear from the record that City is aware, and since 1987 has been aware, that it may not ask job applicants to reveal such information unless it relates directly to the duties and physical requirements of the job.⁶  Thus, the fact that the questions asked in the course of the medical examination also violate the ADA does nothing to lessen the seriousness of the drug testing program's intrusion on protected privacy rights.

 While it is true that neither the Americans With Disabilities Act nor the parallel provisions of the California Fair Employment and Housing Act (Gov.Code, § 12935) prohibit drug testing, it is only reasonable to require that if drug testing is to be conducted, it may not be implemented in a manner which constitutes a de facto violation of those acts.   Where, as here, the drug testing program violates those protections, the invasion of protected privacy rights is onerous.   Thus, both the manner in which the program is implemented and the scope of the program demonstrate a serious intrusion into constitutionally protected privacy interests.

The justifications advanced by the City to vindicate this serious invasion of privacy interests include the need to control the use of illicit drugs, the need to avoid the negative effects resulting from drug abusing employees including decreased employee morale and increased costs (i.e., greater demand for medical benefits, increased use of employee assistance programs, more workers' compensation and third party claims, and more sick days), the need to preserve the integrity of City's image in the eyes of the public, the need to ensure that its employees are alert and able to implement the City Emergency Preparedness Plan on short notice and at any hour, and the need to ensure the sobriety and fitness of all employees who must drive on the job.   Before we can properly assess these claims, we must determine the proper standard by which to judge the City's justification.

 Federal courts require governmental agencies and employers to demonstrate a compelling interest for subjecting private citizen employees to urinalysis for the purpose of urine testing.  (Skinner v. Railway Labor Executives' Assn., supra, 489 U.S. at pp. 624, 633–634, 109 S.Ct. at pp. 1417, 1421–22;  Treasury Employees v. Von Raab, supra, 489 U.S. at pp. 670, 672, 677, 109 S.Ct. at pp. 1393, 1394, 1396–97.)   They impose this heavy burden of justification due to the fundamental nature of the right to privacy and their conclusion that invasion of this right by the government constitutes a search within the meaning of the Fourth Amendment.  (Skinner v. Railway Labor Executives' Assn., supra, 489 U.S. at p. 617, 109 S.Ct. at p. 1413.)   They reason that “ ‘[T]he Fourth Amendment protects individuals from unreasonable searches conducted by the Government, even when the Government acts as an employer․’  [Citation.]”  (Local 2391 (AFGE) v. Martin (9th Cir.1992) 969 F.2d 788, 791.)   Therefore, any attempt to burden that right must pass the strict scrutiny test, and the challenged governmental action will be upheld only if it advances a compelling governmental interest and is narrowly tailored to meet that interest.  (Donatelli v. Mitchell (3rd Cir.1993) 2 F.3d 508, 513.)

No California case has decided whether the state Constitution requires a governmental employer to demonstrate a compelling interest in order to justify a drug testing program.   The California Supreme Court recently rejected the idea that compelling public need must be demonstrated to justify every intrusion on the state constitutional right to privacy.   In Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at page 21, 26 Cal.Rptr.2d 834, 865 P.2d 633, a case challenging the NCAA's random testing of college athletes, the court questioned the usefulness of a constitutional standard “dominated by the vague and ambiguous adjective ‘compelling’ ” (id. at p. 57, 26 Cal.Rptr.2d 834, 865 P.2d 633), and embraced “a constitutional standard that carefully weighs the pertinent interests at stake in an ordered fashion [.]”  (Ibid.)   The Hill court acknowledged, however, that employment situations are very different from intercollegiate athletic competitions (id. at p. 54, 26 Cal.Rptr.2d 834, 865 P.2d 633), and that governmental intrusion into protected privacy interests presents a greater danger than similar intrusions by private organizations.  (Id. at p. 38, 26 Cal.Rptr.2d 834, 865 P.2d 633.)   It also acknowledged that in the context of government employment, “[d]rug testing has been upheld when particular kinds of employment settings—including prison guarding, train operations, or customs inspection—present extraordinary risks to employer or public interests from employee drug use.”  (Id. at pp. 54–55, 26 Cal.Rptr.2d 834, 865 P.2d 633;  emphasis added, fn. omitted.)

Presently, there are only three reported decisions of California appellate courts involving urinalysis-based drug testing of employees, and all involved a private employer.   One applied a “reasonableness” balancing test and concluded the state Constitution was not violated where urinalysis drug testing was conducted under circumstances which minimized the intrusiveness of the privacy invasion after a conditional job offer had been made.   (Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3d 1034, 1047–1049, 264 Cal.Rptr. 194.)   Another applied a compelling interest test to an unannounced order requiring all engineering departmental employees of a railroad, including a computer programmer, to provide a urine sample and to consent to its testing for drugs, alcohol or medications.  (Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 23, 267 Cal.Rptr. 618.) ⁷  The third held that under either test, periodic drug screening of catering company employees was justified due to their hazardous work environment on an oil drilling platform.  (American Federation of Labor v. Unemployment Ins. Appeals Bd. (1994) 23 Cal.App.4th 51, 66, 28 Cal.Rptr.2d 210.)

Given this state of the law and the fact that Ms. Loder's challenge invokes both state and federal Constitutions, we believe it would be illogical to apply any standard other than the compelling interest standard.   That is the standard required under federal law, and the California Supreme Court has not precluded use of that standard in cases involving a governmental employer.   Additionally, the seriousness of the governmental intrusion in this case warrants use of the compelling interest standard even if it is not applied in every such case.

 It is settled that the compelling interest standard cannot be satisfied by an employer's generalized concerns or expressed desire to have a drug free workplace.  (See American Federation of Labor v. Unemployment Ins. Appeals Bd., supra, 23 Cal.App.4th at p. 61, 28 Cal.Rptr.2d 210;  IBEW, Local 1245 v. U.S. NRC, supra, 966 F.2d at p. 525, fn. 9;  Taylor v. O'Grady (7th Cir.1989) 888 F.2d 1189, 1196.)

Precisely what will satisfy the standard is not so easily stated.   Federal cases applying the standard in urine testing cases are instructive by example, but do not provide a concise general statement of law.   The Ninth Circuit uses phraseology such as “truly serious concerns of a safety nature” and “ ‘exceptionally grave damage to the national security’ ” to describe interests sufficiently compelling to justify urine testing for drugs.  (Acton v. Vernonia School Dist. (9th Cir.1994) 23 F.3d 1514, 1524.)   This echoes the language used by the United States Supreme Court in Skinner v. Railway Labor Executives' Assn., supra, 489 U.S. at page 628, 109 S.Ct. at page 1419, where it found a compelling interest in testing employees who “discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.”  (Ibid.)

 We conclude, after careful consideration of all persuasive authority, that a compelling interest in conducting urinalysis-based drug testing is established where an employer demonstrates that the regular duties of the job for which drug testing is required involves some special (i.e., uncommon or unique) and obvious (i.e., conspicuous or easily discernible) physical or ethical demands which, if compromised, could have a disastrous consequence upon public safety or security.  (See Skinner v. Railway Labor Executives' Assn., supra, 489 U.S. at p. 628, 109 S.Ct. at p. 1419;  Acton v. Vernonia School Dist., supra, 23 F.3d at p. 1524;  AFGE Local 1533 v. Cheney (9th Cir.1991) 944 F.2d 503, 508.)

 Applying this standard to the interests asserted by City, its concern for controlling expenses, while unquestionably legitimate, does not constitute a compelling interest sufficient to overcome the counterbalancing interest in securing a fundamental right.  (See James v. Jane (1980) 221 Va. 43, 282 S.E.2d 864, 870;  Gargiulo v. Ohar (1990) 239 Va. 209, 387 S.E.2d 787, 791 [state's interest in avoiding increase in cost of medical malpractice insurance is not compelling];  Mills v. Reynolds (Wyo.1992) 837 P.2d 48, 54 [prevention of increased insurance costs is legitimate, but is not a compelling interest sufficient to justify infringement on a fundamental right].)

Furthermore, the City's interest in the integrity of its image does not constitute a compelling interest.   Two examples of “integrity” interests which were found to be compelling in Treasury Employees v. Von Raab, supra, 489 U.S. 656, 109 S.Ct. 1384, are the need to protect “truly sensitive information for those who, ‘under compulsion of circumstances or for other reason, ․ might compromise [such] information’ ” (id. at p. 677, 109 S.Ct. at 1397), and the need to prevent “the promotion of drug users to positions where they might endanger the integrity of our Nation's borders or the life of the citizenry[.]”  (Id. at p. 679, 109 S.Ct. at p. 1398.)   City's generalized concern for the integrity of its public image does not have the same type of urgency.

Similarly insufficient is the City's interest in implementing its Emergency Preparedness Plan.   Certainly, a compelling need could be shown as to those employees who are vested with discretion to make critical decisions upon which lives may depend during a time of emergency.   City made no showing, however, that tasks of such importance are assigned to new employees.   Presumably, they would be assigned to employees who have, over a period of time, demonstrated the ability to function well in crises.   Thus, no compelling interest for testing was demonstrated on the basis that all employees have some role to play in the Emergency Preparedness Plan.

In short, none of the general interests advanced by City is sufficient to support its contention that compelling need justifies drug testing of each and every applicant for City employment and all promotional candidates without regard to the position sought and without reason to suspect use or abuse of drugs.   Therefore, the trial court properly rejected City's request that testing be allowed as to all job categories.

The City did not rest its case entirely on generalities, however.   It also submitted to the trial court individual justifications tailored to each job category.   The trial court reviewed each of these categories in laborious detail before coming to its conclusion that City had demonstrated a compelling need to test applicants for certain job titles.   A careful review of the record reveals that the compelling interest standard was satisfied as to some, but not all, of those job titles.

 For example, it appears that the trial court may have included a number of job categories for testing on the basis that some driving was required.⁸  A compelling interest for drug testing cannot be demonstrated on this basis unless driving is the primary job duty, as opposed to being incidental to other duties which have no special or obvious physical or ethical demands.  (Bannister v. Board of County Comm'rs (D.Kan.1993) 829 F.Supp. 1249, 1250;  Watson v. Sexton (S.D.N.Y.1991) 755 F.Supp. 583, 589.)   The rationale for this conclusion was well-stated in Watson v. Sexton, supra:  “․ Burka [v. New York City Transit Authority (S.D.N.Y.1990) 739 F.Supp. 814, 822] ․ held that New York City Transit Authority workers who drive a car while on the job are in safety-sensitive positions:  ‘Like a gun, a motor vehicle on a public motorway can instantly become a deadly instrument, if misused.’  [Citation.]  But that logic, extended, would justify drug testing for anyone who is licensed to drive a car.   Nor would it be administratively feasible to measure this interest ad hoc, based on the frequency of a particular employee's driving, in order to determine whether that employee may be tested randomly for substance abuse.   Here, the rule of law must be a rule of thumb.   When the employee's duties require driving, such as the duties of one who patrols or makes pick-ups, that employee's position is safety sensitive.   When driving is only incidental to other duties that engage no safety concern, the employee's position is not safety sensitive.”  (755 F.Supp. at p. 589.)

Thus, to the extent the trial court allowed drug testing of certain job categories simply because incidental driving is required, it erred.⁹

 Other job categories may have been included because they require maintenance of confidential records such as field interrogation notes, booking sheets and driving history reports.   The United States Supreme Court has found a compelling interest to exist on this basis only where the government concern is for the protection of “truly sensitive information.”   (Treasury Employees v. Von Raab, supra, 489 U.S. at p. 677, 109 S.Ct. at p. 1397.)   Federal courts have interpreted this phrase to refer to “top secret” national security information.  (Harmon v. Thornburgh (D.C.Cir.1989) 878 F.2d 484, 489;   American Fed. of Govern. Emp., Local 1533 v. Cheney, supra, 754 F.Supp. at pp. 1420–1421.)   None of the information maintained by the City, presumably, rises to this level.   Therefore, City cannot demonstrate a compelling need for drug testing on the basis that a primary duty of the job is the maintenance or use of confidential records.¹⁰  Accordingly, a compelling need is not shown where the position merely provides the employee with the possibility of access to such information.¹¹  To the extent that the trial court allowed testing in jobs based on access to or maintenance of confidential records, it erred.   Such testing should be enjoined.

 Another area of concern are those jobs as to which drug testing may have been allowed where one of the job requirements is the ability to exercise sound judgment.   For example, this is one of the requirements for the city engineer and the city treasurer.   Our research has revealed no case holding that this requirement, in and of itself, can justify the invasion of the fundamental right of privacy posed by drug testing.   Instead, courts look to the nature and immediacy of the harm which will result in the event of impaired judgment.  (See, e.g., American Fed. of Gov. Emp. v. Derwinski (N.D.Cal.1991) 777 F.Supp. 1493 [drug testing was sustained as to doctors and nurses, but denied as to occupational health specialists].)   Thus, the determinative issue is whether impaired judgment would present an immediate danger to the public.   To the extent that the trial court allowed testing without regard to the immediacy of the harm to the public, it erred.¹²

 A related, and final, concern is that the trial court allowed testing for safety reasons in some categories even though improper performance would create a danger of less than disastrous proportions.¹³  This, also, was error.   As the Ninth Circuit explained in Acton v. Vernonia School Dist., supra, 23 F.3d at page 1526:  “It is widely conceded that what drug usage has done to the fabric of our society is a tragedy of national proportions․  However, it is not the type of potential disaster that has caused the Court or us to find a governmental interest compelling enough to permit suspicionless testing.   It has been lurking as a background condition for our determinations, but that is all.   Its presence has been referred to, but the disaster or tragedy has been some additional horrible element, some terrible threat to safety that can flow from the presence of drugs—some shooting, some explosion, some crash of train, truck, or aircraft, or some breach of top secret national security.”  (Original emphasis.)   We agree with the Ninth Circuit's conclusion in this regard.   Thus, to the extent that the trial court allowed testing for safety concerns of lesser degree, it erred.

 In summary, we hold that drug testing is valid only as to positions in which the regular duties involve some special and obvious physical or ethical demand, and the compromise of the employee's ability to meet such demands could have an immediate disastrous consequence upon public safety or security.   We further hold that testing may be required as to such positions only (1) upon initial employment in the job category, whether by hire or promotion;  and (2) after a job offer has been made;  and (3) if the test is conducted in a manner which does not violate the Americans With Disabilities Act, i.e., without requiring disclosure of any medical history information (including drugs which the applicant is taking upon advice and or prescription of a medical doctor) which is not relevant to the applicant's ability to perform the job; ¹⁴  and (4) if the sample is collected in a manner which does not intrude unnecessarily upon the right to personal privacy;  and (5) if an initial positive test is confirmed by a second test regarded as reliable by the relevant scientific community.¹⁵

Therefore, we reverse the judgment and remand this matter for the sole purpose of further limiting those job titles as to which preemployment and promotional drug testing may be conducted.

II–IX **

DISPOSITION

For the foregoing reasons, the judgment is affirmed in the part which enjoins drug testing as to specified categories, reversed in the parts which allow drug testing as to specified categories where inconsistent with the views expressed herein and which denies attorneys' fees and costs.   The matter is remanded for further proceedings in accord with this opinion.   Each party to bear its own costs.

FOOTNOTES

1.   The record does not indicate whether this result was based only on the EMIT test, which is known to produce a high rate of false positives, or whether it is the rate of confirmed positive tests.   There are other details about the testing process that resulted in this statistic that are not part of the record.

2.   City includes in this category the following:  recreation supervisor, shop superintendent, mechanic, mechanic's helper, facilities maintenance, health services administrator, communications system employees, radio technician, telephone technician, water system supervisor II, instrument technician, building repairer, pumping plant operator, equipment operator II, water system mechanic, power line mechanic, power line apprentice, electrical helpers, maintenance worker, electrical underground unit, fire department (except certain clerical and office positions), power plant operations supervisor, power plant shift supervisor, power plant control operator, power plant auxiliary operator, power plant operator apprentice, power plant technician, power plant mechanical supervisors, power plant mechanic, power plant mechanic helper, senior electrical mechanic, electrical mechanic, utility welder, senior graphics illustrator, graphics illustrator, duplicating machine operator, duplicating shop operator, building inspector, police, customer service clerk I and II, sanitation truck operator, sanitation worker, equipment welder, equipment maintenance supervisor, mechanic, mechanic's helper, service worker, auditorium supervisor, auditorium specialist, seasonal laborer, pesticide applicator, equipment operator, gardeners, maintenance workers, and street and field services employees (with certain exceptions).

3.   In 1986, President Reagan issued an executive order declaring that users of illegal drugs were not suitable for federal employment and directing the head of each federal agency to develop a plan designed to achieve a drug free workplace.  (51 Fed.Reg. 32890.)   One of the aftermaths of this executive order is a proliferation of cases challenging the legality of a variety of drug testing programs.   As a result, authority exists for a wide range of generalizations on the subject which are meaningful only with reference to the particular facts from which they arise.

4.   City cites Fowler v. New York City Dept. of Sanitation (S.D.N.Y.1989) 704 F.Supp. 1264, 1268–1271, as authority for the assertion that job applicants have no reasonable expectation of privacy in light of the fact that preemployment physical examinations are a “familiar ․ feature of the job market on all levels․”  We find no such statement in Fowler.   Rather, Fowler found a diminished expectation of privacy in the preemployment situation and held that a preemployment drug testing which was limited to the disclosure of unprescribed or controlled substance abuse was not a search within the meaning of the Fourth Amendment.   The court acknowledged, however, most courts had found urinalysis to be a search.  (Fowler v. New York City Dept. of Sanitation, supra, 704 F.Supp. at p. 1268.)   The United States Supreme Court stated, in much stronger terms, “․ Federal Courts of Appeals have concluded unanimously, and we agree, that these intrusions [the collection and testing of urine] must be deemed searches under the Fourth Amendment.”  (Skinner v. Railway Labor Executives' Assn., supra, 489 U.S. at p. 617, 109 S.Ct. at p. 1413, fn. omitted.)

5.   See, for example of conditions protected by the act, Coghlan v. H.J. Heinz Co. (N.D.Tex.1994) 851 F.Supp. 815 [insulin dependent diabetic];  Bombrys v. City of Toledo (N.D.Ohio 1993) 849 F.Supp. 1210, 1212 [diabetic police applicant];  Finley v. Giacobbe (S.D.N.Y.1993) 827 F.Supp. 215, 217 [AIDS];  U.S. E.E.O.C. v. AIC Sec. Investigations, Ltd. (N.D.Ill.1993) 823 F.Supp. 571, 572 [cancer].)

6.   In 1987, City's personnel director recommended the elimination of general inquiries concerning physical condition from job application and preemployment questionnaires.   The record does not inform us whether the City acted upon this recommendation.   Certainly, it had additional impetus to do so when the Americans With Disabilities Act became effective in 1992.   Trial in this case was held in July of 1991.   Therefore, we presume City has modified its procedures since that time.

7.   The California Supreme Court has “offer[ed] no analysis of the continuing vitality of” Wilkinson v. Times Mirror Corp., supra, 215 Cal.App.3d 1034, 264 Cal.Rptr. 194, and Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d 1, 267 Cal.Rptr. 618, in light of its holding in Hill.  (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 56, fn. 20, 26 Cal.Rptr.2d 834, 865 P.2d 633.)   Instead, it explained that “future claims arising in the employment context will be subject to the elements and standards we announce [in Hill ], which require careful consideration of reasonable expectations of privacy and employer, employee, and public interests arising in particular circumstances.”  (Ibid.)

8.   The specific basis for the trial court's conclusions is not entirely clear.   The court at one point identified 46 positions which it considered to be “safety sensitive.”   Some of these positions, e.g., fire department store keeper, are strictly administrative and appear to have been designated as “safety sensitive” because some driving is required.   Also, in each instance where drug testing was sustained, the trial court incorporated from the parties' joint statement a lengthy description of the job's duties, both primary and incidental.   No indication was given as to which of the duties was determinative.

9.   It appears that testing may have been improperly allowed on the basis that some driving was required in the following categories:  jail administrator, equipment mechanic and senior equipment mechanic, fire department store keeper.

10.   It appears that testing may have been improperly allowed on the basis that they require maintenance or use of confidential records in the following categories:  records and identification administrator of the police department, clerical staff of the police department, fire department clerical personnel, building repairers.

11.   It appears that testing may have been improperly allowed on the basis that the job involves access to confidential records in the following categories:  clerical staff of the police department, duplicating shop operator, health services administrative assistant, data services personnel, customer service personnel, finance and administrative services professional personnel, finance and administrative services clerical personnel.

12.   It appears that the need to exercise sound judgment may have been an improper basis for allowing testing in the following categories:  community service officer, jail administrator, records and identification administrator of the police department, fire department clerical personnel, electrical dispatch center personnel, electrical engineering personnel, integrated waste management personnel, duplicating shop operator, water services engineering personnel, water services operations personnel, city engineer's office, customer services personnel, community development and housing personnel, finance and administrative services professional personnel, city treasurer.

13.   It appears that the following categories may have been improperly included within the drug testing program for safety reasons:  superintendent for civic center garage, equipment mechanic and senior equipment mechanic, service worker, senior building repairer and building repairers, building maintenance supervisor, custodian, street and field services administration personnel, mechanical maintenance service worker, mechanical maintenance personnel, including warehouse superintendent, warehouse storekeeper and janitor, reprographics administrator, permit personnel, building inspectors, traffic and transportation personnel, parks and recreation employees, seasonal laborer, gardeners and maintenance workers.

14.   One possible manner of accomplishing this requirement is to allow the applicant, at his or her option, to present a reasonable explanation for a confirmed positive test or medical opinion indicating that the confirmed positive result was not caused by illegal drugs.

15.   Although not discussed in the briefs, the requirements of due process would be served by a written policy which identifies (a) the specific positions subject to testing, (b) a manner of giving advanced written notice of testing, (c) the right of the person to refuse to be tested and consequences of refusal, (d) the disciplinary or other action that may be taken as a result of the test, (e) the right of the person to pay for a retest, and (f) appeal procedures.

FOOTNOTE.   See footnote *, ante.

ARLEIGH M. WOODS, Presiding Justice.

CHARLES S. VOGEL and HASTINGS, JJ., concur.