1 See Exec. Order No. 12,564, 51 Fed. Reg. 32,889, 32,889 (1986).

2 See Smith, Leef, Want a U.S. Job? Take a Drug Test, or Don't Apply, Int'l Herald Trib., Sept. 20, 1996, at 1Google Scholar. This figure includes approximately 8.5 million employees covered by federally mandated drug testing regulations, among them, rail, maritime, airline and other transportation workers, as well as pipeline workers. See infra note 34 and accompanying text. Also tested are workers employed by federal contractors with contracts of $25,000 or more, and federal grantees, both of whom are required by the Drug-Free Workplace Act of 1988, 41 U.S.C. §§ 701-707 (1994), to certify maintenance of a "drug-free workplace." See Fenton, James W. Jr & Kinard, Jerry L., A Study of Substance Abuse Testing in Patient Care Facilities, Health Care Mgmt. Rev., Fall 1993, at 87, 87CrossRefGoogle Scholar.

3 The American Management Association has a corporate membership of 9500 organizations, which employ an aggregate quarter of the American workforce. See AMA Research, American Management Ass'n, 1996 AMA Survey on Workplace Drug Testing and Drug Abuse Policies 9 (1996)Google Scholar [hereinafter American Management Survey].

4 See id. at 1. This increase is also recorded by smaller companies where, among those organizations employing 500 employees or fewer, 67% now drug test at least some class of employees, a 37% increase since 1990. See Boyer, Mike, Testing for Drugs on Rise: Small Firms Seeking to Protect Themselves, Cincinnati Enquirer, Sept. 15, 1996Google Scholar, available in LEXIS, News Library, Cinnqr File. Some commentators attribute the increase by smaller firms to a perception that testing is a necessary defense against applicants who have been previously screened out by another company's drug testing program. See id.

Support for testing among employers remains strong notwithstanding the American Management Association's concession that there is little empirical data to show that drug testing promotes deterrence, see id., and given the fact that few companies commit the time or resources necessary to document the costs and benefits of drug testing. See Parrish, Molly R., Drug Testing Support Noted Even Without Proof of Benefit, Drug Detection Rep., June 20, 1996, at 5, 5Google Scholar. Such documentation would include charting rates of absenteeism, on-the-job accidents or disability claims. See DeLancey, Marci M., Creating a Successful Drug-Free Workplace Program, Employment Rel. Today, Summer 1995, at 53, 58CrossRefGoogle Scholar. Support for employer-mandated testing has also grown among employees. See Smith, supra note 2, at 3. In a 1995 Gallup poll of 1006 white- and blue-collar workers, 38% believed drug testing was a necessity (up from 26% in 1989), and 70% favored denying a job to applicants who fail preemployment drug screening. See id.

Although support for drug testing has grown, the percentage of people testing positive continues to decline. Of the four million general workforce drug tests conducted by SmithKline Beecham PLC (one of the largest laboratories in the United States), only 5.8% resulted in a positive finding. See Workplace Drug Test Positives Drop to a 10-Year Low, PR Newswire, Jan. 30, 1997Google Scholar, available in LEXIS, News Library, Txtnws File. The lab first began tracking positive test rates in 1987. See id. Since that time, the percentage of positives has steadily declined. See id.

The American Management Association's 1996 survey shows that the overall rate of positive test results among the survey respondents has remained stable at 1.9% for the past two years, down from 4.2% in 1990. See American Management Survey, supra note 3, at 5; Greenberg, Eric Rolfe, Drug-Testing Now Standard Practice, HR Focus, Sept. 1996, at 24, 24Google Scholar. According to Eric Greenberg, the Director of Management Studies at the American Management Association, the lower rate of positives is not attributable to a decrease in drug use but to an increase in the number of employees subject to random and periodic testing and to the more widely used suspicion-based testing. See id.

5 See Fenton & Kinard, supra note 2, at 88.

6 See Kemp v. Claiborne County Hosp., 763 F. Supp. 1362, 1367-68 (S.D. Miss. 1991).

7 See Southwick, Arthur F., Hospital Liability: Two Theories Have Been Merged, 4 J. Legal Med. 1, 47 (1983)CrossRefGoogle ScholarPubMed.

8 See Burdeau v. McDowell, 256 U.S. 465, 475 (1921) (stating that the Fourth Amendment only applies to government agencies).

9 See Fenton & Kinard, supra note 2, at 88-89. Balancing the public's interests against the individual's constitutional rights is a classic analytical tool crafted by the Supreme Court, and one that implicitly engages both public policy and moral considerations. See Miller, David A., Mandatory Urinalysis Testing and the Privacy Rights of Subject Employees: Toward a General Rule of Legality Under the Fourth Amendment, 48 U. Pitt. L. Rev. 201, 212 (1986)Google Scholar (describing the purpose of the Fourth Amendment as one designed "to protect the privacy and dignity of the individual").

10 See Skinner v. Railway Labor Ass'n, 489 U.S. 602, 619-20 (1989) (holding that the "special needs" allow for departure from the Fourth Amendment's usual warrant and probable cause requirement).

11 See infra notes 148-57 and accompanying text (discussing cases that adjudicated drug testing programs governing a variety of safety-sensitive employees).

12 See Cairns, Scott S. & Grady, Carolyn V., Drug Testing in the Workplace: A Reasoned Approach for Private Employers, 12 Geo. Mason L. Rev. 491, 501-02 (1990)Google Scholar. Urine sampling is by far the leading methodology used by employers to test for drugs. See American Management Survey, supra note 3, at 6. Of the 961 respondents to the American Management Association's 1996 survey, 92% of those who tested their employees relied on urinalysis; another 15% used blood sampling (down from 22% in 1990); 2% used hair sampling; and 2% used performance testing (both up from 0% in 1990). See id. at 6, 9.

13 See id. at 3. As a matter of comparison, the percentage of employers testing new hires in 1987 was 19%. See id. at 3. The American Management Association estimated that in 1996, one- third of all new hires had been drug tested. See id.

14 See Cairns & Grady, supra note 12, at 495.

15 See Wilkinson v. Times Mirror Corp., 264 Cal. Rptr. 194, 204 (Ct. App. 1989) (stating that applicants for jobs have a simple choice, they "may consent to the limited invasion of their privacy resulting from the testing, or may decline both the test and the conditional offer of employment"). In evaluating a challenge to a private employer's preemployment drug testing of all applicants under the state constitution's privacy clause, the California Court of Appeals found that the inclusion of a drug urinalysis in a preemployment medical examination imposes only a minimal amount of intrusion on an applicant's expectation of privacy. See id.

16 See Michelle Lynn O'Brien, Comment, Webster v. Motorola: Employees Reclaiming the Right to Privacy: Random Drug Testing for Safety-Sensitive Employees Only, 30 New Eng. L. Rev. 547, 553 (1996); see also Loder v. City of Glendale, 927 P.2d 1200, 1234-35 (Cal. 1997) (holding that an across-the-board drug and alcohol testing policy violates the Fourth Amendment as applied to current city employees seeking promotions to new positions, but the same program is constitutionally permissible as applied to city job applicants). In support of its conclusion, the Loder court reasoned:

Id. at 1222. But see O'Keefe v. Passaic Valley Water Comm'n, 602 A.2d 760 (N.J. Super. Ct. App. Div. 1992) (holding that preemployment testing of all county water meter readers is unconstitutional absent showing of some nexus between the nature of the job and public safety interests).

17 See Loder, 927 P.2d at 1224.

18 See Cairns & Grady, supra note 12, at 495 (citing a Gallup Poll showing that 68% of employees believed that employers should have the right to drug test applicants).

19 See id. at 496. Suspicion-based testing is also referred to as for-cause or reasonable suspicion testing. See id. at 496-97; DeLancey, supra note 4, at 62.

20 See Cairns & Grady, supra note 12, at 495-96 (reporting the results of a Gallup Poll which found that 73% of private employers utilized suspicion-based testing, compared to 94.5% of private employers who utilized preemployment testing); see also American Management Survey, supra note 3, at 4 (reporting that 70.3% of polled companies test only for cause).

21 See Cairns & Grady, supra note 12, at 496; see also cases cited infra note 34 (discussing the various situations in which employers may implement a random drug testing program).

22 See Cairns & Grady, supra note 12, at 495-96 (reporting the results of a Gallup Poll which found that 68% of the employees polled believed employers should have the right to test job applicants, and 70% of the employees supported suspicion-based drug testing).

23 See id. at 498-99; see also Miller, supra note 9, at 206-07 (discussing the potential abuse of drug test results).

24 See Kizziar, James H. & Nichols, Robert S., Testing Health Care Workers for Drugs: Developing and Implementing a Program, Persp. Healthcare Risk Mgmt., Summer 1991, at 18, 21Google ScholarPubMed.

25 See Garrison v. Department of Justice, 72 F.3d 1566, 1567 (Fed. Cir. 1995) (citing Alabama v. White, 496 U.S. 325, 330 (1990)), cert, denied, 117 S. Ct. 358 (1996).

26 Cairns & Grady, supra note 12, at 496 (quoting Smith v. White, 666 F. Supp. 1085, 1089 (E.D. Tenn. 1987)).

27 See id.

28 See National Inst, on Drug Abuse, U.S. Dep't of Health And Human Servs., Comprehensive Procedures for Drug Testing in the Workplace 5 (1991)Google Scholar.

29 See Cairns & Grady, supra note 12, at 496. For a case upholding reasonable suspicion drug testing on the basis of secondary sources, see Garrison, 72 F.3d at 1569. Outside the zone of safety- sensitive job positions, however, an employer cannot base the legitimacy of its drug testing scheme on evidence and statistics of drug use among the general population. See Burka v. New York City Transit Auth., 739 F. Supp. 814, 828-29 (S.D.N.Y. 1990). The suspicion must be individualized and "directed to a specific person." Id. at 827 (quoting Security and Law Enforcement Employees, Dist. Council 82 v. Carey, 737 F.2d 187, 205 (2d Cir. 1984)).

30 See DeLancey, supra note 4, at 62.

31 See id.

32 See Cairns & Grady, supra note 12, at 497.

33 See Coil, James H., III & Rice, Charles M., State Limits on Drug-testing Programs After Accidents; State Regulations Update, 20 Employment Rel. Today 103 (1993)CrossRefGoogle Scholar, available in LEXIS, News Library, Asapii File.

34 See American Fed'n of Gov't Employees, Council 33 v. Barr, 794 F. Supp. 1466, 1471 (N.D. Cal. 1992). Random testing has been upheld for a variety of federal employees. See, e.g., Railway Labor Executives' Ass'n v. Skinner, 934 F.2d 1096, 1100 (9th Cir. 1991) (railroad employees); International Bhd. of Teamsters v. Department of Transp., 932 F.2d 1292, 1306 (9th Cir. 1991) (commercial motor vehicle operators); International Bhd. of Elec. Workers, Local 1245 v. Skinner, 913 F.2d 1454, 1464 (9th Cir. 1990) (pipeline workers); Bluestein v. Skinner, 908 F.2d 451, 455-57 (9th Cir. 1990) (airline employees); Harmon v. Thornburgh, 878 F.2d 484, 496 (D.C. Cir. 1989) (employees of the U.S. Department of Justice (DOJ)). For a more complete list of cases where random testing of federal employees has been upheld, see Lundquist, Laura A., Weighing the Factors of Drug Testing for Fourth Amendment Balancing, 60 Geo. Wash. L. Rev. 1151, 1179 n.161 (1992)Google Scholar.

The necessity for a connection between the job responsibilities of the employee(s) to be randomly tested and the potential threat to the public was reaffirmed in Harmon v. Thornburgh. See 878 F.2d at 491-92. Harmon affirmed a district court's injunction that prohibited the DOJ from implementing those portions of a drug testing program that required random testing of all federal criminal prosecutors and all employees with access to grand jury proceedings. See id. at 496. Relying on National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), discussed infra notes 190-93 and accompanying text, the court of appeals held that random employee testing is justified only when a "clear, direct nexus exists between the nature of the employee's duty and the nature of the feared violation." Id. at 490.

The absence of a nexus between the nature of the employee's job and the potential public injury also formed the basis for rejecting random testing in the following cases: Stanziale v. County of Monmouth, 884 F. Supp. 140, 146 (D.N.J. 1995) (stating that "the nexus between the [sanitation] employee's blunder and the potential injury is so attenuated as to alleviate the risk of creating irremedial consequences"); Burka v. New York City Transit Authority, 739 F. Supp. 814, 846 (S.D.N.Y. 1990) (holding that the Fourth Amendment requires individual suspicion for drug testing of transit employees in non-safety-sensitive positions); Loder v. City of Glendale, 34 Cal. Rptr. 2d 94, 105 (Ct. App. 1994) (holding that city's burden of establishing a compelling interest in testing all municipal job applicants and promotional candidates is satisfied only where the jobs in question entail some "special (i.e., uncommon and 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").

Where random testing has been upheld, the circumstances are specific to a compelling government interest. See, e.g., American Fed'n of Gov't Employees, AFL-CIO v. Roberts, 9 F.3d 1464, 1466 (9th Cir. 1993) (upholding random testing of all federal correctional employees who have contact with inmates); AFGE Local 1533 v. Cheney, 944 F.2d 503, 506-07 (9th Cir. 1991) (upholding the Department of Navy's random testing of civilian employees with high level security clearance); Keaveney v. Town of Brookline, 937 F. Supp. 975, 984-87 (D. Mass. 1996) (upholding a city ordinance requiring the random testing of all commercial drivers); Rushton v. Nebraska Pub. Power Dist., 653 F. Supp. 1510, 1524-25 (D. Neb. 1987) (upholding random testing of certain employees of nuclear power plant), aff’d, 844 F.2d 562, 566-67 (8th Cir. 1988).

35 In 1987, companies surveyed by the American Management Association were five times more likely to drug test for cause only. See American Management Survey, supra note 3, at 4. Since 1987, the use of random drug testing has increased 1200%, making its use equivalent to other forms of drug testing. See id.

36 For example, the U.S. Department of Transportation (DOT) issued regulations, effective January 2, 1990, that require random testing in the aviation, motor carrier, railroad, maritime, mass transit and pipeline industries. See 49 C.F.R. §§ 40.1, 40.3 (1996); FellowsFellows, Henry D., Legal Aspects of Drug and Alcohol Testing in the Workplace, Risk Mgmt., Mar. 1993, at 21, 25Google Scholar. These regulations cover approximately four million employees whose jobs are deemed safety- or security- sensitive, including

See id.

37 At least eight states (Connecticut, Iowa, Maine, Minnesota, Montana, Oregon, Rhode Island and Vermont) restrict the right of private employers to randomly test employees absent reasonable suspicion or a safety concern. See Sorohan, Erica, Making Decisions About Drug Testing, 48 Training & Dev. 111, 112-13 (1994)Google Scholar. An additional five states (Alaska, California, Massachusetts, New Jersey and West Virginia) confine random testing to only those employees working in safety- sensitive jobs. See O'Brien, supra note 16, at 554-55.

38 See Kizziar & Nichols, supra note 24, at 19-20.

39 See Cairns & Grady, supra note 12, at 499.

40 See O'Brien, supra note 16, at 554.

41 See Cairns & Grady, supra note 12, at 497.

42 See Hudock, Michael J., Behind the Hysteria of Compulsory Drug Screening in Employment: Urinalysis Can Be a Legitimate Tool for Helping Resolve the Nation's Drug Problem If Competing Interests of Employer and Employee Are Equitably Balanced, 25 Duq. L. Rev. 597, 746 (1987)Google Scholar.

43 See Cairns & Grady, supra note 12, at 497.

44 See Michaels, Connie L., Employment Law Considerations Stress Management and Elimination of Bias: The Risk Management Perspective, in MCLE Compulsories 1996, at 285, 368Google Scholar (PLI Litig. & Admin. Practice Course Handbook Series No. H-555, 1996).

45 See id.

46 See DeLancey, supra note 4, at 61. For further discussion of return-to-work contracts, see infra Parts X.B, X.E.

47 See Joanne Ossi, Substance Abuse and Dependence in the Hospital Workplace: Detection and Handling, Persp. health care risk mgmt., Spring 1991, at 21, 22-23; see also American Fed'n of Gov't Employees, L-2110 v. Derwinski, 777 F. Supp. 1493, 1499 (N.D. Cal. 1991) (stating that "[t]he constant presence and dispensing of medicinal preparations containing drugs is part of the currency of hospital life").

48 See Malatestinic, William N. & Jorgenson, James A., Dealing with Substance Abuse in the Workplace, 26 Hosp. Pharmacy 102, 102 (1991)Google ScholarPubMed (asserting that "casual drug use among health professionals in such a way as to expose them to the risks of drug abuse and addiction may be higher [than in the general workforce]"); see also id. (reporting that although substance abuse is estimated to affect 12% of the workforce at large, the reported percentage for health care employees is approximately 15%).

49 Orentlicher, David, Drug Testing of Physicians, 264 JAMA 1039, 1039 (1990)CrossRefGoogle ScholarPubMed.

50 Safety-sensitive positions in health care are staffed by professionals "who are responsible for direct patient care, either with direct patient contact or in the performance of diagnostic testing or therapeutic functions or the preparation and dissemination of drugs and medicines." Derwinski, 777 F. Supp. at 1498; see Kemp v. Claiborne County Hosp., 763 F. Supp. 1362, 1368 (W.D. Miss. 1991) (holding that any hospital employee in hands-on patient care occupies a safety-sensitive position).

See also American Federation of Government Employees, Council 33 v. Barr, 794 F. Supp. 1466, 1471 (N.D. Cal. 1992), where the DOJ's random drug testing program for all physician and dentist employees of the Federal Bureau of Prisons (FBP) was upheld on public safety grounds. In emphasizing the physical and mental rigors of the medical profession, the court further stated:

Id. at 1472 (citing Derwinski, 777 F. Supp. at 1499).

51 See id 1472-73.

52 777 F. Supp. 1493 (N.D. Cal. 1991).

53 Id. at 1498.

54 Id. at 1499.

55 See id. But cf. Glover v. Eastern Neb. Community Office of Retardation, 867 F.2d 461, 464 (8th Cir. 1989) (holding that a health care worker's employment in a highly regulated state agency does not result in a diminished privacy interest justifying mandatory blood testing for acquired immune deficiency syndromes and hepatitis B when the risk of disease transmission is deemed negligible).

56 See American Hosp. Ass'n, Substance Abuse Policies for Health Care Institutions 1-2 (1992)Google Scholar [hereinafter AHA Policies].

57 There is no fixed consensus on what percentage of the physician population abuses drugs or alcohol. According to the American Medical Association (AMA), estimates on the rate of impairment among practicing physicians is 7-9%. See Wachsman, Harvey F., Who Protects Patients' Rights?, Med. World News, Oct. 23, 1989, at 57, 57Google Scholar. Other surveys go as high as 15%. See De Sanctis, Dona, Helping Health Care Professionals Confront Substance Abuse, Trustee, Dec. 1991, at 13, 13Google Scholar (stating that the rate of drug addiction among health care professionals is 10-15%); Malatestinic & Jorgenson, supra note 48, at 102 (stating that alcohol and drug abuse affects 15% of health care professionals); Should Hospitals Test Doctors for Drugs?, Wash. Post, July 16, 1991 (Health), at 14Google Scholar (noting an addiction specialist's claim that 15% of physicians are addicted to drugs and alcohol). The rate of drug and alcohol abuse among the general workforce has been estimated to be 12%. See Malatestinic & Jorgenson, supra note 48, at 102.

In any case, drug and alcohol abuse is the leading cause of suspension and revocation of physician licenses. See Thompson, Larry, Finding Doctors with Addictions, Wash. Post, Feb. 20, 1990 (Health), at 9Google Scholar (finding that 85% of licensure actions taken against doctors involve drugs or alcohol (quoting Michael Compton, Acting Director of the Maryland Board of Physician Quality Assurance)).

58 Studies have indicated that health care workers, and in particular, physicians and dentists, have a higher recovery rate than those in other occupations. See Walzer, Robert S., Impaired Physicians: An Overview and Update of the Legal Issues, 11 J. Legal Med. 131, 134-36, 197-98 (1990)CrossRefGoogle ScholarPubMed; see also Fleming, Michael F., Physician Impairment: Options for Intervention, 50 Am. Fam. Physician 41, 41 (1994)Google ScholarPubMed (stating that 80-90% of alcohol- and drug-addicted physicians recover and refrain from further abuse).

59 See Cairns & Grady, supra note 12, at 511 (finding that drug testing is a way to reduce injuries caused by impaired employees and the cost to the employer of those injuries that do occur); Walzer, supra note 58, at 188-89 (discussing how in some jurisdictions a hospital will not be held responsible if it takes precautions to ensure that only professional, non-drug-using staff are hired).

60 See Cairns & Grady, supra note 12, at 493.

61 See id. at 506.

62 The lack of meaningful information offered by a positive drug test points to a weak correlation with impaired job performance. As pointed out by the AMA's Office of General Counsel, "a test that is positive for drug use may be falsely positive for drug impairment." Orentlicher, supra note 49, at 1039.

In explaining the lack of correlation between a positive urinalysis and on-the-job impairment, commentators Edward M. Chen, Pauline T. Kim and John M. True offered the following scientific background of urinalysis:

Chen, Edward M. et al., Common Law Privacy: A Limit on an Employer's Power to Test for Drugs, 12 Geo. Mason L. Rev. 651, 676-77 (1990)Google Scholar (citations omitted).

Passive inhalation of marijuana may also undermine testing validity, depending on the threshold required to trigger a positive result. See Rothstein, Mark A., Workplace Drug Testing: A Case Study in the Misapplication of Technology, 5 Harv. J.L. & Tech. 65, 75 (1991)Google Scholar.

63 See Fleming, supra note 58, at 43.

64 See Walzer, supra note 58, at 131. Generally the state agency or licensing board retains the licensure and disciplinary functions, and the medical society manages the identification, investigation and treatment functions with a protocol for exchanging information, usually for a failed rehabilitative effort. See id. at 134. For a detailed description of some states' governance and regulation of physicians, see id. at 139-45.

65 See id. at 145.

66 See Fleming, supra note 58, at 41; Thompson, supra note 57, at 9.

67 See Walzer, supra note 58, at 169. The Health Care Quality Improvement Act of 1986,42 U.S.C. §§ 11101-11152 (1994), overseen by the U.S. Department of Health and Human Services (HHS), also calls for the reporting of incompetent (but not specifically impaired) physicians to HHS and to the appropriate state licensing board, see id. § 111 34(b)—(c), and requires that this information be made available to hospitals and other health care entities. See id. § 11137(a).

68 See Orentlicher, supra note 49, at 1040.

69 See id. The AMA's Council of Scientific Affairs (CSA) has addressed the issue of whether neurobehavioral tests would more accurately measure performance impairment. In a 1992 report, the CSA concluded that although application of neurobehavioral tests to health care professionals had not been fully explored, they appeared to lack the necessary sensitivity and specificity to identify current drug users with impaired job performance. See Council on Scientific Affairs, American Med. Ass'n, CSA Report 2-1-95, at 3 (1995)Google Scholar [hereinafter CSA Report]. The CSA, therefore, did not yet consider performance testing an appropriate substitute for urine testing. See id. Although acknowledging the limitations of drug tests, the CSA argues that drug tests can and do accomplish the specific task of identifying those whose drug use puts them at greater risk of mental or physical impairment. See id. at 2.

70 "Because of its leadership role in the community, its mission of providing safe and effective health and medical care, and its responsibility as an employer, every health care institution should strive to establish and maintain an alcohol- and drug-free work environment." AHA Policies, supra note 56, at 1.

71 See id. at 3. Approximately six months after issuing this advisory report, the AHA implemented a similar testing policy for its 850 employees in Chicago and Washington, D.C. See What's Good for the Goose.. ., Mod. Healthcare, Dec. 14, 1992, at 52, 52Google Scholar.

72 See AHA Policies, supra note 56, at 1.

73 See id. at 2.

74 See id. at 3.

75 See id. One of the more recent comprehensive studies to measure physician substance abuse was based on a mailed, self-reporting anonymous survey of 9600 physicians across the country. See Hughes, Patrick H. et al., Prevalence of Substance Abuse Among US Physicians, 267 JAMA 2333, 2334 (1992)CrossRefGoogle ScholarPubMed. The study found that physicians were less likely than the general population to use illicit drugs (such as cocaine, marijuana and heroin), but were more likely to use alcohol and to self-treat with prescription medications, most notably, opiate analgesics and benzodiazepine-like tranquilizers. See id. at 2336. Prescription drugs rank third behind alcohol and tobacco as the most used substance among physicians. See id.

76 AHA Policies, supra note 56, at 3.

77 See id.

78 See id.

79 See id. at 1.

80 See id.

81 See id.

82 See CSA Report, supra note 69, at 6.

83 See id.

84 See id. at 1-2.

85 Id. at 3.

86 See Lemon, Stephen J. et al., Physicians' Attitudes Toward Mandatory Work Place Urine Drug Testing, 152 Archives Internal Med. 2238, 2240 (1992)CrossRefGoogle ScholarPubMed. When broken down by age, the study revealed that older physicians were far more likely than their younger counterparts to approve of mandatory drug testing of physicians: 61% of the respondents between the ages of 45 and 60 supported such testing compared with 45% of the respondents between the ages of 30 and 44. See id.

87 See id.

88 CSA Report, supra note 69, at 6.

89 Id.

90 See Odewahn, Charles A. & Webb, Darryl L., Negligent Hiring and Discrimination: An Employer's Dilemma?, 40 Lab. L.J. 705, 705 (1989)Google Scholar. Liability for negligent hire or retention attaches if the employer knows of the employee's unfitness, or fails to take reasonable steps to discover it. See id.

Liability may also be imputed to the employer for the negligent actions of an employee under the doctrine of respondeat superior, provided the negligence occurred during the course of employment. See Restatement (Second) of Agency § 219 (1958). This theory of liability applies to the negligence of such employees as interns, resident physicians, nurses and other hospital staff members. See Arthur L. Southwick, supra note 7, at 8; see also Bearden, Diana Joseph & Maedgen, Bryan J., Emerging Theories of Liability in the Managed Care Industry, 47 Baylor L. Rev. 285, 300 (1995)Google Scholar (noting that courts have recently recognized hospital liability for the negligence of the physicians over whom it has control). It does not, generally, reach the conduct of the negligent independent physician. See Bearden & Maedgen, supra, at 299-300; Southwick, supra note 7, at 5.

Liability under respondeat superior is vicarious and extends only to negligent employee conduct committed during the course of employment. See Odewahn & Webb, supra, at 705. In contrast, the doctrine of negligent hiring imposes direct employer liability and extends to intentional acts committed by employees outside the scope of employment. See id.

The negligent hiring doctrine has been followed in the following jurisdictions: Alaska, see Svacke v. Shelley, 359 P.2d 127, 130-31 (Alaska 1961); Arizona, see Kassman v. Busfield Enters., 639 P.2d 353, 356-57 (Ariz. Ct. App. 1982); California, See Virginia G. v. ABC Unified School Dist., 19 Cal. Rptr. 2d 671, 675-76 (Ct. App. 1993); Colorado, see Colwell v. Oatman, 510 P.2d 464, 466 (Colo. Ct. App. 1973); Connecticut, see Shore v. Town of Stonington, 444 A.2d 1379, 1383 (Conn. 1982); District of Columbia, see Levy v. Currier, 587 A.2d 205, 211-12 (D.C. 1991); Florida, see Mallory v. O'Neil, 69 So. 2d 313, 315 (Fla. 1954); Georgia, see Mitchell County Hosp. Auth. v. Joiner, 189 S.E.2d 412, 414 (Ga. 1972); Hawaii, see Janssen v. American Haw. Cruises, Inc., 731 P.2d 163, 166 (Haw. 1987); Illinois, see Johnson v. Mers, 664 N.E.2d 668, 672-73 (Ill. App. Ct. 1996); Iowa, see D.R.R. v. English Enters., CATV, 356 N.W.2d 580, 583 (Iowa Ct. App. 1984); Kansas, see Plains Resources, Inc. v. Gable, 682 P.2d 653, 661-63 (Kan. 1984); Louisiana, see Roberts v. Benoit, 605 So. 2d 1032, 1044 (La. 1991); Maryland, see Evans v. Morsell, 395 A.2d 480, 483 (Md. 1978); Michigan, see Hersh v. Kentfield Builders, Inc., 189 N.W.2d 286, 288 (Mich. 1971); Minnesota, see Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 910-13 (Minn. 1983); Missouri, see Gaines v. Monsanto Co., 655 S.W.2d 568, 570 (Mo. Ct. App. 1983); New Jersey, see DiCosala v. Kay, 450 A.2d 508, 514-16 (N.J. 1982); New Mexico, see F & T Co. v. Woods, 594 P.2d 745, 747 (N.M. 1979); New York, see Detone v. Bullit Courier Serv., Inc., 528 N.Y.S.2d 575, 576 (App. Div. 1988); North Carolina, see Moricle v. Pilkington, 462 S.E.2d 531, 533 (N.C. Ct. App. 1995); Oklahoma, see Jordan v. Cates, 935 P.2d 289, 292-93 (Okla. 1997); Oregon, see Chesterman v. Barmon, 727 P.2d 130, 131-32 (Or. Ct. App. 1986); Pennsylvania, see Dempsey v. Walso Bureau, Inc., 246 A.2d 418, 419-20 (Pa. 1968); Tennessee, see Doe v. Rogers, No. 03A01-9606-CV-00212, 1997 WL 36834, at *1 (Tenn. Ct. App. Jan. 31, 1997); Texas, see Akins v. Estes, 888 S.W.2d 35, 41-42 (Tex. App. 1994); Utah, see Stone v. Hurst Lumber Co., 386 P.2d 910, 911-12 (Utah 1963); and Washington, see Peck v. Siau, 827 P.2d 1108, 1110 (Wash. Ct. App. 1992). The American Law Institute defines the doctrine as when "[a] person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless ... in the employment of improper persons or instrumentalities in work involving risk of harm to others." Restatement (Second) of Agency § 213 (1958).

91 See Cohoon, James B., Piercing the Doctrine of Corporate Hospital Liability, 17 San Diego L. Rev. 383, 385(1980)Google Scholar.

92 See id. at 384-85.

93 See Hall, Mark A., Institutional Control of Physician Behavior: Legal Barriers to Health Care Cost Containment, 137 U. Pa. L. Rev. 431, 457 (1988)CrossRefGoogle Scholar. Because it was difficult to determine the amount of control hospitals had over medical decision making, hospitals were originally held liable for administrative errors, not medical actions. See id.

94 See Smith v. Duke Univ., 14 S.E.2d 643, 647 (N.C. 1941), overruled by Rabon v. Rowan Mem'l Hosp., Inc., 152 S.E.2d 485, 499 (N.C. 1967).

95 See Bost v. Riley, 262 S.E.2d 391, 395 (N.C. Ct. App. 1980) (addressing the changing role of the hospital and its more intimate involvement in direct provision of medical care); see also John son v. Misericordia Community Hosp., 301 N.W.2d 156, 164 (Wis. 1981) (challenging the notion that hospitals are merely treatment facilities and do not undertake the treatment of patients through its doctors and nurses).

The significance of the increased complexity of patient care is succinctly explained as follows:

Southwick, supra note 7, at 47.

96 See Southwick, Arthur F., The Hospital as an Institution—Expanding Responsibilities Change Its Relationship with the Staff Physician, 9 Cal. W. L. Rev. 429 (1973)Google Scholar. Additionally, patients today may not have the opportunity to select their own physician; rather, the patient is often directed by an employer, hospital or insurance company to a particular physician or group of physicians. See id.

97 See Southwick, supra note 7, at 5.

98 Taking note of the operational changes that have marked the modern medical facility, some jurisdictions have proceeded on the doctrine of apparent agency to attach liability to the hospital for negligent treatment administered by an independent physician. See id. at 10. Courts have pointed out that hospitals have increasingly contracted with such medical specialists as radiologists, anesthesiologists and emergency room practitioners who receive a percentage of the department's income in exchange for services. See id. at 9-10. Under these circumstances, although physicians may remain independent contractors, liability for their tortious conduct may extend to the hospital under the doctrine of apparent agency. See id. Apparent agency can be demonstrated where it can be shown that: (1) the hospital has invited the patient to use the services of the medical specialists and may have left the patient with no choice but to do so; (2) the hospital represents that it provides a full range of medical care including those of the specialists; (3) patients rely on the hospital's representations; and (4) patients conclude, based on these representations, that the specialists are either employees or an integral part of the hospital. See id. at 10.

The theory of corporate hospital liability was first articulated in Darling v. Charleston Community Memorial Hospital, 211 N.E.2d 253 (Ill. 1965). The Supreme Court of Illinois affirmed a jury's verdict in favor of a patient-plaintiff whose leg amputation was necessitated by an emergency room physician's improper setting of a broken leg. See id. at 258. By finding the hospital negligent in its failure to require consultation or examination by a staff physician and to supervise properly the patient's treatment, Darling created an affirmative duty on the part of the hospital to exercise reasonable care in the supervision of physicians and to take proper action. See id. Such action might include a temporary or permanent revocation of privileges if a physician is subsequently found to be incompetent.

99 See id. at 17.

100 Johnson v. Misericordia Community Hosp., 301 N.W.2d 156, 165 (Wis. 1980).

101 See, e.g., Purcell v. Zimbelman, 500 P.2d 335, 341 (Ariz. Ct. App. 1972); Elam v. College Park Hosp., 183 Cal. Rptr. 156, 161 (Ct. App. 1982); Kitto v. Gilbert, 570 P.2d 544, 550 (Colo. Ct. App. 1977); Mitchell County Hosp. Auth. v. Joiner, 189 S.E.2d 412, 414 (Ga. 1972); Johnson v. Saint Bernard Hosp., 399 N.E.2d 198, 204 (Ill. App. Ct. 1979); Ferguson v. Gonyaw, 236 N.W.2d 543, 550 (Mich. Ct. App. 1975); Gridley v. Johnson, 476 S.W.2d 475, 484 (Mo. 1972); Foley v. Bishop Clarkson Mem'l Hosp., 173 N.E.2d 881, 884 (Neb. 1970); Moore v. Board of Trustees of Carson-Tahoe Hosp., 495 P.2d 605, 608 (Nev. 1972); Corleto v. Shore Mem'l Hosp., 350 A.2d. 534, 537 (N.J. Super. Ct. Law Div. 1975); Felice v. Saint Agnes Hosp., 65 A.D.2d 388, 396 (N.Y. App. Div. 1978); Bost v. Riley, 262 S.E.2d 391, 395 (N.C. Ct. App. 1980); Capan v. Divine Providence Hosp., 430 A.2d 647, 648 (Pa. Super. Ct. 1980); Brownsville Med. Ctr. v. Gracia, 704 S.W.2d 68, 75 (Tex. App. 1985); Pedroza v. Bryant, 677 P.2d 166, 168 (Wash. 1984); Utter v. Hospital Ctr., 236 S.E.2d 213, 215 (W. Va. 1977); Johnson v Misericordia Community Hosp., 301 N.W.2d 156, 164 (Wis. 1981).

102 See Odewahn & Webb, supra note 90, at 707 (citing Scott v. Watson, 359 A.2d 548, 552 (Md. 1976)).

103 See id. at 708.

104 See Fenton, James W. Jr et al., Negligent Hiring and Retention: Some Evidence of Hospital Vulnerability, Health Care Mgmt. Rev., Winter 1991, at 73, 79Google Scholar.

105 See Johnson, 301 N.W.2d at 168-69; see also Martinez v. Lifemark Hosp., 608 So. 2d 855, 857 (Fla. Dist. Ct. App. 1992) (stating that "[t]he selection and review of health care personnel is a duty of hospitals under Florida's medical malpractice statute"). The JCAHO was previously known as the Joint Commission on the Accreditation of Hospitals. See Furrow, Barry R. et al., Health Law: Cases, Materials and Problems 99-100 (2d ed. 1991)Google Scholar.

106 See 57A Am. Jur. 2d Negligence § 83 (1989).

107 See id. § 154.

108 See Elam v. College Park Hosp., 183 Cal. Rptr. 156, 161 (Ct. App. 1982). The distinction between negligent selection and negligent retention is discussed in Garcia v. Duffy, 492 So. 2d 435, 438-39 (Fla. Dist. Ct. App. 1986) (citation omitted):

109 See Joiner v. Mitchell County Hosp. Auth., 186 S.E.2d 307, 308 (Ga. Ct. App.), aff'd, 189 S.E.2d 412, 414 (Ga. 1972) (holding that a hospital may not avoid liability for the negligent selection of a physician based on delegating credentialing authority to a medical staff committee which acts as an agent of the hospital).

110 See Shaw, Jack W. Jr., Annotation, Hospital's Liability for Negligence in Selection or Appointment of Staff Physician or Surgeon, 51 A.L.R.3d 981, 983 (1973)Google Scholar.

111 See id.; see also Odewahn & Webb, supra note 90, at 707 (stating that "[t]he plaintiff must prove a causal connection (proximate cause) between the harm sustained and the negligence of the employer").

112 Cf. Portlock v. Perry, 852 S.W.2d 578, 583 (Tex. App. 1993) (finding that negligent action by treating physician severed the causal connection between the medical facility's negligent hiring and the resulting harm to patient). See generally Odewahn & Webb, supra note 90, at 707 (discussing how employers often assert that their employees' criminal acts break the chain of causation).

113 500 P.2d 335, 341 (Ariz. Ct. App. 1972); see also Bost v. Riley, 262 S.E.2d 391, 397 (N.C. Ct. App. 1980) (finding that hospital's failure to take any action against defendant-surgeon's failure to keep patient progress notes violated hospital rules and may be used as evidence of hospital's breach of duty to oversee quality of patient's care).

114 Purcell, 500 P.2d at 342.

115 See Focke v. United States, 597 F. Supp. 1325, 1351 (D. Kan. 1982) (stating that proximate cause involves a foreseeable injury); Johnson v. Misericordia Community Hosp., 301 N.W.2d 156, 163-64 (Wis. 1980) (stating that the harm element of negligence must be foreseeable).

116 See Elam v. College Park Hosp., 183 Cal. Rptr. 156, 161 (Ct. App. 1982) (citing Weirum v. RKO Gen., Inc., 539 P.2d 36, 39 (Cal. Ct. App. 1975); Dillon v. Legg, 441 P.2d 912, 918 (Cal. Ct. App. 1968).

117 Odewahn & Webb, supra note 90, at 709; see Byford, Katrin U., Comment, The Quest for the Honest Worker: A Proposal for Regulation of Integrity Testing, 49 SMU L. Rev. 329, 359-60 (1996)Google Scholar. When examining foreseeability, if "the plaintiff's injury could not be reasonably foreseeable by the employer at the time of the hiring, the employer's conduct will not be considered the proximate cause of the injury." Odewahn & Webb, supra note 90, at 709.

118 See Elam, 183 Cal. Rptr. at 164. Reasonable care in the selection of medical staff requires the screening of applicants pursuant to procedurally fair and established criteria. See Moore v. Board of Trustees, 495 P.2d 605, 608 (Nev. 1972); Southwick, supra note 7, at 47.

119 See Johnson, 301 N.W.2d at 171 (stating that a hospital will be liable if it "failed to exercise that standard of care usually exercised in similar situations by other members of the medical profession and thus breached that legal duty owed to the patient" (quoting Mossey v. St. Luke's Hosp., 218 N.W.2d 514, 517 (Wis. 1974)).

120 A large teaching hospital may typically have hundreds of private admitting physicians. See id. at 168-71.

121 See Cohoon, supra note 91, at 394. Following evaluation of an applicant's qualifications, the credentialing committee forwards a recommendation, sometimes in conjunction with a concur ring recommendation from the staff executive committee, for the governing board's approval. See id. at 392.

122 See Mitchell County Hosp. Auth. v. Joiner, 189 S.E.2d 412, 414 (Ga. 1972) (stating that "[t]he delegation of authority to screen applicants for staff membership on the medical staff does not relieve the [hospital] of its responsibility, since the members of such staff act as agents for the [hos pital]").

123 See 1 Joint Comm'n on Accreditation Of Healthcare orgs., Accreditation Manual for Hospitals 213 (1996)Google Scholar (discussing the responsibility of the credentialing process to oversee appointments to the medical staff, clinical privileges granted to independent practitioners and practitioners' general ability to provide patient care services).

124 Pedroza v. Bryant, 677 P.2d 166, 170 (Wash. 1984) (quoting Koehn, Susan B., Hospital Corporate Liability: An Effective Solution to Controlling Private Physician Incompetence?, 32 Rutgers L. Rev. 342, 369-70 (1979)Google Scholar). The state supreme court subscribed to the theory of corporate hospital negligence, but declined to apply it where a patient was treated in a staff physician's private office, outside hospital premises. See id. at 171-72. The court pointed to the defendant hospital corporation's by-laws, adoption of which are mandated by statutory and regulatory law, as an additional source for defining the standard of care owed by a hospital to its patients. See id. at 171. For additional cases in which courts held hospitals liable for the negligence of its staff or conferred on them a duty to supervise the quality of care provided by its staff, see Purcell v. Zimbelman, 500 P.2d 335, 341 (Ariz. Ct. App. 1972) (holding a hospital liable for medical staffs negligence in failing to supervise properly physician and in failing to alert board to possible problem); Darling v. Charleston Community Memorial Hospital, 211 N.E.2d 253, 261 (Ill. 1965) (holding that hospitals have an independent duty to supervise the medical treatment provided by its staff physicians).

125 186 s.E.2d 307, 309 (Ga. Ct. App. 1971), aff'd, 189 S.E.2d 412, 414 (Ga. 1972); see also Focke v. United States, 597 F. Supp. 1325, 1345 (D. Kan. 1982) (holding that the duty to exercise care in hiring may require an employer to conduct some "minimal" investigation, but not an "in- depth" investigation); Johnson, 301 N.W.2d at 164 (stating that "the failure to investigate a medical staff applicant's qualifications . . . gives rise to a foreseeable risk of unreasonable harm").

126 See Perryman v. DeKalb County Hosp. Auth., 398 S.E.2d 745, 746 (Ga. Ct. App. 1990).

While it may be negligent to hire or retain a physician whose performance is compromised by illegal drug use,

Id.

127 See Focke, 597 F. Supp. at 1345.

128 See Johnson v. Misericordia Community Hosp., 301 N.W.2d 156, 164 (Wis. 1981).

129 See id. at 160. Reasonable care in the investigation of a physician's application for hospital privileges may include "education, training, health, ethics and experience through contacts with his peers in the specialty in which he is seeking privileges, as well as the references listed in his application to determine the veracity of his statements and to solicit comments dealing with the applicant's credentials." Id.

130 See infra notes 151-57 (discussing Kemp v. Claiborne County Hosp., 763 F. Supp 1362 (S.D. Miss. 1991)).

131 Southwick, supra note 96, at 429.

132 Pedroza v. Bryant, 677 P.2d 166, 169 (Wash. 1984).

133 See, for example, Keeton, W. Page et al., Prosser and Keeton on the Law of Torts § 33, at 193-94 (5th ed. 1984)Google Scholar (footnotes omitted) which states:

134 See American Management Survey, supra note 3, at 1.

135 Neither the AMA nor the American Hospital Association has published any studies of drug testing in the health care sector. One 1988 hospital survey indicated that approximately 10% of those questioned had a drug screening policy for applicants. See Fenton et al., supra note 104, at 76 tbl. 1. But the number of hospitals instituting some type of testing program is clearly on the rise. See Fenton & Kinard, supra note 2, at 93.

136 See Fenton & Kinard, supra note 2, at 91. This survey is based on a questionnaire sent to a randomly selected group of 453 human resource personnel listed in the 1991-1992 membership directory of the American Society for Healthcare Human Resources Administration. See id. at 90. Responses were received from 120 institutions: 78 respondents represented private, for-profit hospitals and 36 represented public facilities. See id. at 91; see also Fenton et al., supra note 104, at 75, 76 tbl.l (reporting the results of a 1988 survey of 93 responses from 394 randomly selected human resource managers in which approximately 10% used preemployment drug screening).

137 See Fenton & Kinard, supra note 2, at 91.

138 See id.

139 See id. at 92. The other tested positions included custodial workers, maintenance workers, nurses, pharmacists, technicians, medical record personnel, nurse aides/orderlies, administrative personnel, food service personnel, therapists, phlebotomists, security personnel and others (e.g., emergency medical personnel and contract service personnel). See id. tbl.4.

140 See id.

141 See id.

142 The authors of this study attributed the gap between testing of physicians and physician- related positions and the testing of other hospital employees to an assumption made by hospital administrators that "physicians, because of their medical training, represent less risk of illicit drug use." Id. at 94. But as the authors point out, the statistics on physician and resident physician impairment do not support this assumption. See id. at 92.

143 See id. at 94.

144 See id. at 92.

145 Although the omission of a drug screening program in a hospital employment setting may not be unreasonable, and is in fact consistent with current industry standards, the failure to test in individual circumstances may be considered negligent if the hospital had cause to test, i.e., the hos pital knew or should have known of a reason to test a medical staff member. Cf. Stephens v. A-Able Rents Co., 654 N.E.2d 1315, 1319 (Ohio Ct. App. 1995) (finding that a reasonable jury could have found employer negligent for not investigating employee's past history of drug use). But see Perry- man v. DeKalb County Hosp. Auth., 398 S.E.2d 745, 746 (Ga. Ct. App. 1990) (holding there was no negligence on hospital's part for failure to investigate physician's "rumored" drug use where physician denied such use and there was no evidence in physician's employment history, or otherwise, to controvert the denial). See generally Odewahn & Webb, supra note 90 (discussing the increasing number of employers held directly liable for harm to third parties for negligently hiring employees they knew or should have known were unfit).

Negative drug test results could become part of a hospital's defense in any future third-party hospital negligence claim, particularly if the alleged misconduct by a physician, nurse or technician stemmed from a purported drug problem. See, e.g., Fenton & Kinard, supra note 2, at 88 (advocating the use of drug testing to protect hospitals from patient care liability).

146 See Stephens, 654 N.E.2d at 1320.

147 See generally supra notes 108-29 and accompanying text (discussing negligent hiring and retention doctrine and recent case law).

148 See Odewahn & Webb, supra note 90, at 707 (discussing Welsh Mfg. v. Pinkerton's Inc., 474 A.2d 436 (R.I. 1984)).

149 See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 634 (1989) (finding that the safety interests and diminished expectation of privacy made conducting drug tests reasonable in the absence of a warrant or reasonable suspicion).

150 Id. at 628.

151 763 F. Supp. 1362, 1367-68 (S.D. Miss. 1991).

152 See id. at 1365. The program specified that all employees were to be given advance notice of the test and a date and time to report. See id. at 1364.

153 See id. at 1368.

154 See id. at 1364.

155 Id. at 1367 (citing American Fed'n of Gov't Employees v. Sullivan, 744 F. Supp. 294, 300 (D.D.C. 1990)).

156 Id.

157 See id. at 1368. The court discussed other federal court decisions that had recognized that the jobs of certain nurses were "safety-sensitive." See id. at 1367 (citing Plane v. United States, 750 F. Supp. 1358, 1367-68 (W.D. Mich. 1990) (registered nurses); Leckelt v. Board of Comm'rs of Hosp. Dist. No. 1, 909 F.2d 820, 832-33 (5th Cir. 1990) (licensed practical nurses)).

158 In one of the few cases involving drug testing in the context of negligent hiring, Stephens v. A-Able Rents Co., 654 N.E.2d 1315, 1319-20 (Ohio Ct. App. 1995), an Ohio appellate court deter mined that a truck rental company's failure to test its employee drivers did not constitute negligence per se because its duty to drug test was based on concerns for traffic safety rather than felonious assault and attempted rape. In that case, a driver-employee was accused of sexually assaulting a customer while making a delivery at her home. See id. at 1318. The employee admitted that he had smoked crack cocaine the day before and that ingestion of the drug was the motivating factor behind the assault. See id. at 1319. Because the employee's history of drug abuse was known and documented by his former employer, see id. at 1318, the court concluded that a reasonable jury could have found that the present employer's failure to conduct any type of preemployment investigation directly contributed to the plaintiff's injuries and reversed summary judgment as to the negligent hiring issue. See id. at 1319, 1322.

159 See Byford, supra note 117, at 330 n.l (citing Silver, Michael, Negligent Hiring Claims Take Off, A.B.A. J., May 1, 1987, at 72, 72Google Scholar). In the health care setting, this tort translates into the doctrine of corporate hospital liability. See Mark Minuti, Note, $$$Employer Liability Under the Doc trine of Negligent Hiring: Suggested Methods for Avoiding the Hiring of Dangerous Employees, 13 Del. J. Corp. L. 501, 521 n.143 (1988)Google Scholar.

160 See In re Cincinnati Radiation Litig., 874 F. Supp. 796, 810-11 (S.D. Ohio 1995); Clement, Susan et al., Note, The Evolution of the Right to Privacy After Roe v. Wade, 13 Am. J.L. & Med. 365, 381-82 (1987)Google Scholar.

161 See Rothstein, supra note 62, at 67.

162 In Skinner v. Railway Labor Association, 489 U.S. 602, 617 (1989) (quoting National Treasury Employees Union v. Von Raab, 816 F.2d 170, 175 (5th Cir. 1987)), the Supreme Court commented:

163 See Miller, supra note 9, at 207.

164 See Chen et al., supra note 62, at 673.

165 Although lacking an explicit reference to privacy, a number of amendments are contained in the Bill of Rights that, when viewed in the aggregate, support a theoretical and legal basis for a privacy right: First Amendment's right to free speech, press, assembly and petition; Fourth Amendment's right against unreasonable search and seizure; Fifth Amendment's guarantee against self- incrimination, and a guarantee of due process prior to the deprivation of a liberty or property; Ninth Amendment's reservation to the people of other rights not enumerated in the Constitution; and Tenth Amendment's conference to the states and the people of all rights not expressly granted to the federal government. See Gerhart, Paul F., Employee Privacy Rights in the United States, 17 Comp. Lab. L.J. 175, 176 n.6 (1995)Google Scholar.

166 768 P.2d 1123, 1128 (Alaska 1989). See generally Clement et al., supra note 160 (high lighting the development of the U.S. Supreme Court's definition of the right to privacy after Roe v. Wade, 410 U.S. 113(1973)).

167 Brandeis, Louis D. & Warren, Samuel D., The Right to Privacy, 4 Harv. L. Rev. 193 (1890)Google Scholar; see also Luedtke, 768 P.2d at 1127 (accrediting Brandeis and Warren with creating the right to privacy).

168 "A person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other." Restatement of Torts § 867(1939).

169 "[Intrusion upon Seclusion:] One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person." Restatement (Second) of Torts § 652B (1977).

170 381 U.S. 479,484(1965).

171 Id. at 486.

172 See id. at 485. The right to use contraceptives free from governmental intrusion was ex tended to unmarried individuals in Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). The right of individuals to exercise control over their reproductive functions, a right premised on the Fourteenth Amendment's liberty guarantee, was further expanded in Roe v. Wade, 410 U.S. 113, 163 (1973), which upheld a woman's right to terminate a pregnancy, subject to certain limitations.

173 See Jenero, Kenneth A. & Mapes-Riordan, Lynne D., Electronic Monitoring of Employees and the Elusive Right to Privacy, 18 Employee Rel. L.J. 71, 71-72 (1992)Google Scholar; see also Piller, Charles, Bosses with X-Ray Eyes, Macworld, July 1993, at 118, 123Google Scholar (polling corporate executives from 301 businesses of all sizes and industries to determine how many had engaged in electronic monitoring of employees).

Also contributing to the general erosion of employee privacy are government-mandated record-keeping requirements. Employers are required by a variety of federal and state statutes to retain records relating to "equal employment opportunity and affirmative action, minimum wages and overtime pay, industrial accidents and illnesses, job applications, and actual test papers" including other relevant categories such as "records of physical examinations, sex, date of birth, occupation, rate of pay, promotions, demotions, transfer, layoff, recall, selection for training, on-the-job injuries, pension contributions and immigration verification." Gerhart, supra note 165, at 193-94.

174 See Jenero & Mapes-Riordan, supra note 173, at 71.

175 Hair analysis, scientifically known as radioimmunoassay hair analysis, has the capability of testing for cocaine as far back as 90 days. See Nevada Employment Sec. Dep't v. Holmes, 914 P.2d 611, 613 (Nev. 1996). In Nevada Employment, the Nevada Supreme Court upheld the random drug testing of casino employees via hair sampling, concluding that the compelling reasons behind an employer-sponsored drug testing policy justifies the intrusion into an employee's off-the-job con duct in light of the "reasonable relationship" existing between the testing policy and job performance. See id. at 617.

176 See Hecker, Steven & Kaplan, Mark S., Workplace Drug Testing as Social Control, 19 Int'l J. Health Services 693, 701 (1989)CrossRefGoogle Scholar; see also Decker, Kurt H., Employment Privacy Law for the 1990's, 15 Pepp. L. Rev. 551, 579 (1988)Google Scholar (discussing the importance of limiting "employee lifestyle regulation" to instances that would directly affect the employer's business).

177 See Division 241, Amalgamated Transit Union v. Suscy, 405 F. Supp. 750, 751 (N.D. 111. 1975). The court legitimized for the first time the use of urinalysis as a drug screening device in the workplace by upholding the Chicago Transit Authority's blood and urine testing following a driver's involvement in a serious accident or on reasonable suspicion. See id. at 751. The court's determination of the policy's reasonableness was based on a balancing analysis which concluded that the state's interest in safeguarding the safety of the public outweighed an individual interest in privacy. See id.

178 See Kemp v. Claiborne County Hosp., 763 F. Supp. 1362, 1368 (S.D. Miss. 1991) (asserting that "expectation of privacy in the work place may also be diminished if the industry or position is subject to other regulations and requirements such as background investigations or medical examinations" (citing National Treasury Employees Union v. Von Raab, 489 U.S. 656, 677 (1989)); see also Shoemaker v. Handel, 795 F.2d 1136, 1142 (3d Cir. 1986) (stating jockeys' privacy interests are diminished by their voluntary employment in an intensely regulated industry).

179 See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 617 (1989) ("Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable . . . these intrusions must be deemed searches under the Fourth Amendment.").

The definition of a search often rests on a reasonable person's expectation of privacy under the circumstances; any infringement of that expectation triggers a Fourth Amendment inquiry. See New Jersey v. T.L.O., 469 U.S. 325, 338 (1985) (stating that the Fourth Amendment protects expectations of privacy that society is "prepared to recognize as legitimate" (citing Hudson v. Palmer, 468 U.S. 517, 526(1984)).

Holding a drug test to be a Fourth Amendment search is consistent with other Supreme Court decisions that have expanded the definition of a "search" to accommodate the pace of technological advancement. See, e.g., Skinner, 489 U.S. at 616-17 (holding that subjecting a suspect to a breathalyzer test for purpose of conducting chemical analysis infringes Fourth Amendment privacy expectations in one's bodily integrity); Katz v. United States, 389 U.S. 347, 353 (1967) (wiretapping held as search within the meaning of the Fourth Amendment); Schmerber v. California, 384 U.S. 757, 767 (1966) (holding that compulsory blood test to detect alcohol level constitutes a search and seizure within the meaning of the Fourth Amendment); Barlow v. Ground, 943 F.2d 1132, 1139 (9th Cir. 1991) (holding that HIV testing of suspect without a warrant, without consent and absent exigent circumstances violates Fourth Amendment).

180 The Fourth Amendment provides:

U.S. Const, amend. IV. The Fourth Amendment is made applicable to the states through the Due Process Clause of the Fourteenth Amendment. See Wolf v. Colorado, 338 U.S. 25, 27-28 (1949).

181 See Clancy, Thomas K., The Role of Individualized Suspicion in Assessing the Reasonable ness of Searches and Seizures, 25 U. Mem. St.L. Rev. 483, 529 (1995)Google Scholar (stating how the Framers were "seeking to ensure that freedom from suspicionless intrusions were guaranteed" by prescribing the probable cause and particularity requirements necessary to procure a warrant).

182 See Carroll v. United States, 267 U.S. 132, 147 (1925). Generally, searches conducted without a warrant and without probable cause or individualized suspicion of illegal activity will be considered "reasonable" only if conducted for purposes unrelated to criminal law enforcement, such as preventive or administrative searches. See infra notes 186-98 and accompanying text.

183 What is deemed reasonable is determined on a case-by-case basis, taking into consideration all the facts and circumstances—"the total atmosphere of the case." See Capua v. City of Plainfield, 643 F. Supp. 1507, 1513 (D.N.J. 1986). For cases discussing how the Court uses the balancing test to determine reasonableness, see T.L.O., 469 U.S. at 337-43 (holding that reasonableness of the search of students in the school context depends on whether the search was justified at its inception and if it was reasonably related to the circumstances surrounding the search); United States v. Martinez-Fuerte, 428 U.S. 543, 562-64 (1976) (holding that routine checkpoint stops by border patrol may be made in the absence of individualized suspicion because they serve legitimate state interests and were procedurally defensible); Camara v. Municipal Court of San Francisco, 387 U.S. 523, 533-34, 536-39 (1967) (holding that a warrant is required to support the reasonableness of an inspection for building code violations, but the inspections need not depend on specific knowledge of a dwelling's condition).

184 See Cornish, Craig M. & Louria, Donald B., Employment Drug Testing, Preventive Searches and the Future of Privacy, 33 Wm. & Mary L. Rev. 95, 97-98 (1991)Google Scholar.

185 See id.

186 See Richman, Roger, Balancing Government Necessity and Public Employee Privacy: Re constructing the Fourth Amendment Through the Special Needs Doctrine, 26 Admin. & Soc'y 99, 112 (1994)CrossRefGoogle Scholar.

187 See O'Connor v. Ortega, 480 U.S. 709, 720 (1987) (plurality opinion) (upholding the valid ity of a public employer's warrantless and suspicionless search of an employee's work-related property based on a "special need" that makes the probable cause requirement "unsuitable" for workplace searches); see also T.L.O., 469 U.S. at 332 n.2, 341 (holding that public school teachers and administrators are bound by the Fourth Amendment's prohibition against unreasonable searches and seizures, however, interests such as "providing a safe environment conducive to education" modify warrant and probable cause requirements so that a search is reasonable if justified at its inception and if its scope is reasonably related to the circumstances justifying the initial intrusion).

188 489 U.S. 602, 606(1989).

189 See id. at 626-31. In Skinner, employees subject to drug testing were delegated "duties fraught with such risk . . . that even a momentary lapse of attention can have disastrous consequences." Id. at 628. Emphasis on the safety-sensitive nature of the drug interdiction responsibilities was also present in National Treasury Employees Union v. Von Raab, 489 U.S. 656, 679 (1989): "The Government's compelling interests in preventing the promotion of drug users to positions where they might endanger the integrity of our Nation's borders or the life of the citizenry outweigh the privacy interests of those who seek promotion to these positions . . . ."

190 489 U.S. 656, 660-61, 663 (1989). There was insufficient evidence in the record for the Court to determine the validity of the testing requirements with respect to employees handling classified materials. See id. at 677. This issue was remanded to the court of appeals for further record development. See id. at 678. On remand by the court of appeals, see National Treasury Employees Union v. Von Raab, 876 F.2d 376, 376 (5th Cir. 1989), the district court reconsidered the issue and held that requiring drug testing of employees seeking jobs with secret or confidential clearances is reasonable under the Fourth Amendment. See National Treasury Employees Union v. Hallett, 756 F. Supp. 947, 952-53 (E.D. La. 1991).

191 See 489 U.S. at 670. For a discussion on the use of the Fourth Amendment's search and seizure clause as a tool of deterrence, see Cornish & Louria, supra note 184, at 97-98.

192 Von Raab, 489 U.S. at 668-69.

193 See id. at 672. Justice Scalia's dissent in Von Raab pointed out that, unlike the record in Skinner, which indicated drug use among the targeted class of employees, the government in this case had failed to introduce any evidence linking drug use with employee performance, any evidence of a "drug problem" among Customs Service employees or evidence of even a single employee who had actually used drugs. See id. at 683-84 (Scalia, J., dissenting). Under these circumstances, Justice Scalia characterized the Customs Service drug testing rules as "a kind of immolation of privacy and human dignity in symbolic opposition to drug use." Id. at 681.

194 117 S. Ct. 1295,1305(1997).

195 See id. at 1299.

196 See id. at 1305. A similar observation underpins Justice Scalia's dissent in Von Raab, 489 U.S. at 681, 683.

197 See Chandler, 117 S. Ct. at 1034.

198 See id. at 1035.

199 American Fed'n of Gov't Employees, Council 33 v. Barr, 794 F. Supp. 1466, 1472 (N.D. Cal. 1992) (upholding random testing of FBP's physician and dentist employees who had regular patient contact).

200 See Kemp v. Claiborne County Hosp., 763 F. Supp. 1362, 1368 (S.D. Miss. 1991) (upholding suspicionless drug testing of public hospital employees involved in direct patient care).

201 See American Fed'n of Gov't Employees, L-2110 v. Derwinski, 777 F. Supp. 1493, 1499 (N.D. Cal. 1991) (upholding random testing of medical professionals involved in direct patient care, including physicians, pharmacists and nurses).

202 See Kemp, 763 F. Supp. at 1368

203 Absent a finding of state action, courts have been reluctant to extend the guarantees of the Bill of Rights to constitutional transgressions experienced in the private sector workplace. See generally Jenero & Mapes-Riordan, supra note 173, at 100 n.ll (discussing that private actions "under color of state or federal law" are an exception to the general nonapplicability of Fourth Amendment protections to private sector employees, and citing Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 614-16 (1989) as an example).

Most state constitutions include analogues to the Fourth Amendment's proscription against unreasonable search and seizure. See id. at 80. Additionally, the following ten states have included in their constitutions specific guarantees addressing the right of privacy: Alaska, see Alaska Const, art. I, § 6; Arizona, See Ariz. const, art. II, § 8; California, see Cal. const, art. I, § 1; Florida, see Fla. const, art. I, § 23; Hawaii, see Haw. const, art. I, § 6; Illinois, See Iii. const, art. I, § 6; Louisiana, see La. const, art. I, § 5; Montana, see Mont. const, art. II, § 10; South Carolina, see S.C. Const, art. I, § 10; and Washington, see Wash. const, art. I, § 7. Generally, these provisions apply only to public sector employees. See Jenero & Mapes-Riordan, supra note 173, at 80. However, in some instances, the courts have looked to a state constitutional privacy right as the basis for a public policy exception to at-will employment. See Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1132-33 (Alaska 1989) (holding that the Alaska Constitution's privacy provision applies only to public employees, but indicating that the clause may be considered "evidence of a public policy supporting privacy"); Hennessey v. Coastal Eagle Point Oil Co., 609 A.2d 11, 19 (N.J. 1992) (finding that "constitutional privacy protections may form the basis for a clear mandate of public policy supporting a wrongful discharge claim" arising from an employer's drug testing policy). But see Gilmore v. Enogex, Inc., 878 P.2d 360, 365 (Okla. 1994) (declining to infer a public policy mandate from a state constitutional privacy provision that would prohibit employers from discharging employees for refusing to submit to a drug test); Roe v. Quality Transp. Servs., 838 P.2d 128, 130-31 (Wash. Ct. App. 1992) (rejecting the state constitutional privacy right as the proper source for a public policy restricting a private employer's right to discharge an at-will employee for refusing to submit to random drug testing).

The California courts, on the other hand, have extended the state constitutional right of privacy to employees in both the public and private sector. See Hill v. National Collegiate Athletic Ass'n, 865 P.2d 633, 644 (Cal. 1994); Luck v. Southern Pac. Transp. Co., 267 Cal. Rptr. 618, 628 (Ct. App. 1990); Semore v. Pool, 266 Cal. Rptr. 280, 283 (Ct. App. 1990); Wilkinson v. Times Mirror Corp., 264 Cal. Rptr. 194, 198-200 (Ct. App. 1989); Jenero & Mapes-Riordan, supra note 173, at 80. To determine whether encroachments on individual privacy by nongovernment entities are justified, the California Supreme Court rejected the "compelling interest" standard and developed a legal standard that weighs the relative interests of private organizations and their willing participants. See Hill, 865 P.2d at 653, 656-57, 667 n.20 (reviewing California case law and observing that the compelling interest standard only applied to "obvious government action impacting freedom of expression or association" and that future claims for invasion of privacy in the employment context will be "subject to . . . careful consideration of reasonable expectations of privacy and employer, employee, and public interests arising in particular circumstances"); see also Luck, 267 Cal. Rptr. at 631-32 (discussing the various interests that must be "placed on the scale to balance against the employee's privacy right" and upholding a verdict for wrongful discharge of a nonsafety railroad employee who refused to take a urinalysis drug test); Semore, 266 Cal. Rptr. at 286 (appeal from demurrer stating that a dispute over drug testing in the workplace can only be resolved by "balancing an employee's expectations of privacy against the employer's needs to regulate the conduct of its employees at work"); Wilkinson, 264 Cal. Rptr. at 203 (balancing the relative interests of employers and job applicants, the court upheld as reasonable preemployment testing of all publishing company applicants).

204 States that have enacted drug testing laws regulating the type of tests and/or testing procedures employers may utilize are Arizona, Connecticut, Florida, Georgia, Hawaii, Iowa, Louisiana, Maine, Maryland, Minnesota, Mississippi, Montana, Nebraska, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, Utah and Vermont. See Mark De Bernardo Et Al., Institute for a Drug- Free Workplace, Lawyers' Guide to State and Federal Drug-Testing Laws 9-10 (4th ed. 1995).

205 See New 'Road Map' to State Regulations Outlines Disparate Workplace Testing Laws, 10 Nat'l rep. on substance abuse (lrp) no. 4, at 1,4 (Feb. 1, 1996)Google Scholar (stating that regardless of variation among states' attitudes toward employment drug testing, failure to observe properly the confidentiality and privacy rights of employees in formulating drug testing policies might expose employers to "substantial legal liability").

206 See Fenton & Kinard, supra note 2, at 88.

207 See Hurd, Sandra N., Recent Slate Drug Testing Laws Depart from Early Statutes, Employment Testing L. & Pol'y Rep., Jan. 1995, at 1, 5.Google Scholar

208 See, e.g., Hurd, Sandra N., States Enact Comprehensive Drug Testing Laws in 1995-6, Employment Testing L. & Pol'y Rep., May 1996, at 65,Google Scholar available in LEXIS, News Library, Emptst File (discussing how Georgia's statute "mandates confidentiality of all test results"); id. (two bills in the Massachusetts legislature would "require written consent for most disclosures [of test results]" and require that test results not "become part of an employee's personal record"); id. (New York bill would require the "confidentiality of test results"); id. (South Carolina bill "mandates confidentiality of test results"); Hurd, supra note 207, at 2 (Arizona's statute provides for "confidentiality of test results").

209 See, e.g., Hurd, supra note 208 (discussing how North Carolina is considering a law that would allow on-site drug testing provided employers sent positive test samples to an approved laboratory for confirmatory testing); Hurd, supra note 207, at 2 (Arizona's drug testing statute provides for confirmatory testing); id. at 3 (Georgia's statute requires follow-up testing for those who have "entered an employee assistance or rehabilitation program as the result of a positive test").

210 See, e.g., Hennessey v. Coastal Eagle Point Oil Co., 609 A.2d 11, 20-21 (N.J. 1992) (holding that random drug testing can violate common law and statutory right to privacy unless employee's duties "are so fraught with hazard that his or her attempts to perform them while in a state of drug impairment would pose a threat to co-workers, to the workplace, or to the public at large").

211 See id.; see also Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1133 (Alaska 1989) (holding that random drug testing of an employee working on a drilling rig was permissible because individual privacy right was outweighed by risk of harm posed to public); Luck v. Southern Pac. Transp. Co., 267 Cal. Rptr. 618, 631 (Cal. 1990) (holding that railroad employer's application of random drug testing policy to computer programmer breaches employee privacy rights where there is an insufficient nexus between the programmer's job duties and the feared harm); Twigg v. Hercules Co., 406 S.E.2d 52, 55 (W. Va. 1990) (holding that explosive manufacturer's interest in random drug testing of employee whose job duties included assisting in maintenance of stock sup plies outweighs employee's privacy interests only if there exists reasonable suspicion to test, or job responsibilities directly implicate public health and safety concerns).

212 See Hennessey, 609 A.2d at 23 (holding that, with respect to safety-sensitive positions, public safety may outweigh individual privacy concerns, and consequently employers should "formulate and implement measures designed to minimize the intrusiveness of the testing process[,] . . . includ[ing] a testing procedure that allows as much privacy and dignity as possible"). But see Baggs v. Eagle-Pitcher Industries, Inc., 957 F.2d 268, 275 (6th Cir. 1992) (holding that a "Michigan employer may use intrusive and even objectionable means to obtain employment-related information about an employee").

213 At least four states have codified the common law tort for invasion of privacy: Massachusetts, see Mass. Gen. Laws. ch. 214, § 1B (1996); Nebraska, see Neb. Rev. Stat. §§ 20-201 to -211 (1991); Rhode Island, see R.I. Gen. Laws § 9-1-28.1 (1997); and Wisconsin, see Wis. Stat. Ann. § 895.50 (1997).

214 See Cavico, Frank J., Invasion of Privacy in the Private Employment Sector: Tortious and Ethical Aspects, 30 Hous. L. Rev. 1263,1266 (1993).Google Scholar

215 Id. at 1312; see also Folmsbee v. Tech Tool Grinding & Supply, Inc., 630 N.E.2d 586, 589 (Mass. 1994) (in evaluating whether employer's drug test unreasonably invaded employee privacy interests, court balanced the manner and scope of the testing program against the employer's legitimate interest to test and the 30-day notice given to the employees prior to the institution of the testing).

216 The fourth is the tort of appropriation, wherein an individual's name or likeness is appropriated for personal use or benefit. See Cavico, supra note 214, at 1279 (citing Restatement (Second) of Torts § 652C (1977)).

217 See Restatement (Second) of Torts § 652B (1977) ("One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.").

218 See Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 622 (3d Cir. 1992).

219 See e.g., Borse, 963 F.2d at 623 (noting that "citizens' right to be protected against unwarranted intrusions into their private lives has been recognized in the law of Alaska" (quoting Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1133 (Alaska 1989)); Kelley v. Schlumberger Tech. Corp., 849 F.2d 41, 44 (1st Cir. 1988) (holding that Louisiana's common law privacy right was violated by employer's drug testing program that required direct observation of urination); see also Rothstein, Mark A., Drug Testing in the Workplace: The Challenge to Employment Relations and Employment Law, 63 Chi.-kent L. Rev. 683,729 (1987)Google Scholar (explaining that requiring the observation of a urine test might be an invasion of employee's privacy in violation of public policy). But cf. Mares v. Conagra Poultry Co., 971 F.2d 492, 496 (10th Cir. 1992) (upholding summary judgment against employee-plaintiffs action for intrusion upon seclusion based on employer's request for pro drug testing medical information, including a list of all prescription and over-the-counter medications currently utilized by employees).

220 See Borse, 963 F.2d at 621 (citing Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602,617(1989)).

221 John D. Blackburn et al., Invasion of Privacy: Refocusing the Tort in Private Sector Employment, 6 Depaul Bus. L.J. 41, 53 (1993).

222 See id. at 54.

223 See Restatement (Second) of Torts § 652D (1977).

224 See Cavico, supra note 214, at 1272 & n.25.

225 See Minckler v. Exxon Corp., No. 05-95-01015-CV, 1997 Tex. App. LEXIS 343, at *9 (Tex. App. Jan. 30, 1997) (noting that a defense is available if an "employer makes a statement in good faith, on a subject in which the person communicating has an interest or duty, to a person having a corresponding interest or duty"); Cavico, supra note 214, at 1274.

226 Closely akin to an action for casting an individual in a false light is an action for defamation, which enjoys many of the same defenses available in privacy tort actions. See, e.g., Blackburn et al., supra note 221, at 54 n.41 (noting that there is often, but not always, an "overlap" of the actions and defenses of false light and defamation). In a defamation action, a claimant must show that he or she was injured as a result of the negligent articulation and publication of a false and defamatory statement to a third party. See Jacobs, Roger B., Defamation and Negligence in the Workplace, 40 Lab. L.J. 567,567 (1989)Google Scholar (discussing defamation and negligence claims in the employment con text).

227 See Restatement (Second) of Torts § 652E; Cavico, supra note 214, at 1276-77 n.43. For a detailed discussion of the interrelationship between defamation and false light publicity, see id. at 1276&n.42.

228 See Cavico, supra note 214, at 1277-78.

229 See id. at 1281-83 (discussing the privileges, both absolute and qualified, that "constrain the tort of invasion of privacy").

230 No. 05-95-01015-CV, 1997 Tex. App. LEXIS 343, at *13 (Tex. App. Jan. 30, 1997). Absolute immunity from the tort of invasion of privacy is granted when the plaintiff gives consent to the privacy invasion and the scope of that consent was not exceeded, or "where the law requires the employer to intrude on the employee's solitude, or disclose information about the employee." Cavico, supra note 214, at 1281-82 & nn. 74-75.

231 See Minckler, 1997 Tex. App. LEXIS 343, at *2.

232 See id.

233 The trial court dismissed the action against the supervisor, and Minckler did not appeal that portion of the lower court's ruling. See id. at *3.

234 Id. at *9.

235 Id. at* 10.

236 Minckler also lodged a defamation claim against Exxon based on the publication of his drug test results, but the appellate court concluded that the same qualified privilege applicable to invasion of privacy cases operates in defamation cases. See id. at *12 (citing Hines v. Arkansas La. Gas Co., 613 So. 2d 646, 656 (La. Ct. App. 1993)). The court also dismissed Minckler's action for intentional infliction of emotional distress, concluding that such a cause of action could be maintained only on a showing of conduct "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency." Id. at *18.

237 See infra notes 247-52 and accompanying text (discussing two cases upholding an employer's right to terminate employees in safety-sensitive positions who fail to submit to drug testing and applying that reasoning to the hospital employer).

238 See Sprang, Kenneth A., Beware the Toothless Tiger: A Critique of the Model Employment Termination Act, 43 Am. U. L. Rev. 849, 850 (1994)Google Scholar (stating that there are approximately 60 million at-will employees in the private sector work force).

239 See DiSabatino, Michael A., Annotation, Modern Status of Rule That Employer May Dis charge At-Will Employee for Any Reason, 12 A.L.R. 4th 544, 549-50 (1981)Google Scholar (stating that the general rule is that employment for an indefinite term is terminable by the employer for any cause); see also Black's Law Dictionary 525 (6th ed. 1990) (defining "employment at will" as a relationship— absent an express agreement to the contrary—with "no specific duration" and terminable "at will by either the employer or the employee, for or without cause").

240 See Kline, Sara Needleman, Comment, Sexual Harassment, Wrongful Discharge, and Employer Liability: The Employer's Dilemma, 43 Am. U. L. Rev. 191,211 (1993).Google Scholar

241 See Peck, Cornelius J., Penetrating Doctrinal Camouflage: Understanding the Development of the Law of Wrongful Discharge, 66 Wash. L. Rev. 719, 727 (1991)Google Scholar; John Jacob Kobus, Jr., Note, Establishing Corporate Counsel's Right to Sue for Retaliatory Discharge, 29 Val. U. L. Rev. 1343, 1345, 1356 n.68 (1995)Google Scholar; Todd M. Smith, Note, Wrongful Discharge Reexamined: The Crisis Matures, Ohio Responds, 41 Case W. Res. L. Rev. 1209, 1209 (1991).Google Scholar

242 See Raymond, Edward L. Jr., Annotation, Liability for Discharge of At-Will Employee for Refusal to Submit to Drug Testing, 79 A.L.R. 4th 105, 109 (1990)Google Scholar (stating that jurisdictions, when faced with a discharge for refusal to submit to a drug test, have recognized causes of action for wrongful discharge based on violation of public policy or breach of an implied covenant of good faith and fair dealing); see also Black's Law Dictionary 1612-13 (6th ed. 1990) (defining "wrongful discharge" as "[a]n at-will employee's cause of action against his former employer, alleging that his discharge was in violation of state or federal anti-discrimination statutes, public pol icy, or an implied covenant of good faith and fair dealing" (citations omitted)).

243 Twenty-five states have statutes protecting both private and public employees from an employer's retaliatory discharge as a result of an employee reporting the illegal conduct of an employer. See Richard J. Brightman, Note, 24 Seton Hall L. Rev. 483, 496 n.77 (1993) (listing all 25 states and their respective statutes).

A claim of wrongful discharge has also been found where an employee was terminated following refusal to engage in a criminal act such as perjury or in retaliation for filing a worker's compensation claim. Note, Protecting Employees At Will Against Wrongful Discharge: The Public Policy Exception, 96 Harv. L. Rev. 1931, 1937 (1983).CrossRefGoogle Scholar

In addition, some states have enacted "whistle blowing" statutes, which bar discharge or other retaliatory action against an employee who reports an employer's unlawful activity to the authorities. See id.

244 See Gilmore v. Enogex, Inc., 878 P.2d 360, 363 (Okla. 1994) (holding that "[a]t-will employees do not have a cognizable cause of action for wrongful discharge unless the claim falls within the narrow class of complaints in which the discharge is contrary to a clear mandate of public policy articulated by constitutional, statutory or decisional law"); see also Johnson v. Carpenter Tech. Corp., 723 F. Supp. 180, 184 (D. Conn. 1989) (holding that statute limiting private sector drug testing to reasonable suspicion or safety-sensitive positions may form the basis of a wrongful discharge in violation of public policy where employee was discharged for refusing to submit to a testing program); Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1132 (Alaska 1989) (stating that in the absence of any specific statute addressing private employees' privacy interests, court looked "to the entire body of law in the state of Alaska" in establishing a strong public policy supporting the protection of employee privacy); Twigg v. Hercules Corp., 406 S.E.2d 52, 54-55 (W. Va. 1990) (stating that public policy prohibiting suspicionless private employment drug testing in non-safety-sensitive positions is derived from state statute prohibiting lie detector tests). But see Roe v. Quality Transp. Servs., 838 P.2d 128, 132 (Wash. Ct. App. 1992) (rejecting state constitutional privacy right, common law tort for invasion of privacy and state statute prohibiting public or private sector use of lie detector tests as evidence of a public policy that would bar an employer from discharging an employee for refusing to take a drug test); see also Jennings v. Minco Tech. Labs, Inc., 765 S.W.2d 497, 500 (Tex. Ct. App. 1989) (stating that absent legislative intent, there is no public policy against discharging worker for failing or refusing company drug test). See generally Hennessey v. Coastal Eagle Point Oil Co., 609 A.2d 11 (N.J. 1992) (holding that discharge of at-will employee in violation of clearly articulated public policy gives rise to cause of action for wrongful discharge); Brightman, supra note 243 (discussing in detail privacy and public policy issues implicated by Hennessey and other New Jersey cases).

245 963 F.2d 611, 622 (3d Cir. 1992).

246 Id. at 621 (quoting Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 617 (1989)). The case was remanded so plaintiff could amend her complaint in order to allege exactly how defendant's drug testing policy invaded her privacy. See id. at 626.

247 609 A.2d 11,13 (N.J. 1992).

248 see id. at 12-13.

249 See id. at 23. The court's recognition of an employee's privacy interest, in the absence of safety considerations, was grounded in part on a state constitutional provision that confers on all persons "material and unalienable rights." See id. at 18.

250 768 P.2d 1123, 1130 (Alaska 1989) (citing Knight v. American Guard & Alert Inc., 714 P.2d 788, 792 (Alaska 1986)). But see Greco v. Halliburton Co., 674 F. Supp. 1447, 1450 (D. Wyo. 1987) (stating that although Wyoming has not determined that termination of an at-will employment contract violates an implied covenant of good faith and fair dealing and has not recognized public policy exceptions to the at-will doctrine, neither cause of action could be sustained where the em-

ployer demonstrated a valid purpose for drug testing and the program was administered even-handedly).

251 See Leudtke, 768 P.2d at 1135-36.

252 See Kemp v. Claiborne County Hosp., 763 F. Supp. 1362, 1368 (W.D. Miss. 1991). ²⁵³ 42 U.S.C. §§ 12101-12213 (1994).

254 See id. § 12112(a).

²⁵⁵ See id. § 12111(5).

256 See id. § 12113(a)-(b). The ADA amends and expands on the coverage provided in the Re habilitation Act of 1973, Pub. L. No. 93-112, § 503(a), 87 Stat. 355, 393 (codified as amended at 29 U.S.C. § 793(a) (1994)), which was limited to government entities and private employers who received federal funds or had federal contracts in excess of $2500. See Ellenwood v. Exxon Shipping Co., 984 F.2d 1270, 1273 (1st Cir. 1993).

Disability is defined by the ADA as, "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2).

257 42 U.S.C. § 12112(a).

258 See Gault, Robert M. & Kinnane, Anne M., Navigating the Maze of Employment Law, Mgmt. Rev., Feb. 1996, at 9, 10 (1996)Google Scholar. For a comprehensive analysis of judicial interpretation of the ADA following the first three years of its enactment, see generally Coil, James H. III & Shapiro, Lori J., The ADA at Three Years: A Statute in Flux, Employee Rel. L.J., Spring 1996, at 5.Google ScholarPubMed

259 See 42 U.S.C. § 12114(a) (providing that "the term 'qualified individual with a disability' shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use"). Illegal drug use "includes the use of unlawful drugs, the unlawful use of prescription drugs, and the possession or distribution of these drugs." Horn, Todd J., Federal Laws Affect Workplace Policies on Drug Use; Sorting Out FMLA and ADA Issues, Employment Testing L. & Pol'y Rep., May 1995, at 65, 66.Google Scholar

260 See Hartman v. Petaluma, 841 F. Supp. 946, 949 (N.D. Cal. 1994) (citing 28 C.F.R. § 35.104 (1996)). "[A] person who casually used drugs illegally in the past, but did not become addicted is not an individual with a disability based on past [sic] drug use." Id. (citing U.S. Equal Employment Opportunity Comm'n, A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans With Disabilities Act § 8.5, at 8-4 (1992) [hereinafter EEOC Technical Assistance Manual].

A protected disability under the ADA requires the employer to make reasonable accommodations to the employee's disability unless the employer can demonstrate that such accommodation would result in undue hardship on business operation. To evoke statutory protection, a disabled employee must otherwise be qualified to perform a job's essential functions, with or without reasonable accommodation. See 42 U.S.C. § 12111(8)-(10).

261 See Flynn v. Raytheon Co., 868 F. Supp. 383, 387 (D. Mass. 1994) (stating that known al coholic employee's discharge "the very first time" he reports to work intoxicated does not violate the ADA because "[r]easonable accommodation does not extend to accommodating an alcoholic employee's showing up for work under the influence of alcohol or drinking alcohol on the job").

262 See 42 U.S.C. § 12114(c)(2).

263 Flynn, 868 F. Supp. at 386 (citing Canon v. Clark, No. 94-8150-CIV-KING, 1994 WL 549759, at *2 (S.D. Fla. Sept. 21, 1994)).

264 See Coil & Shapiro, supra note 258, at 31.

265 See 42 U.S.C. § 12112(d)(3); 29 C.F.R. § 1630.14(b) (1996).

266 See 42 U.S.C. § 12112(d)(3)(C). See also Gordon, Philip L., The Job Application Process After the Americans with Disabilities Act, 18 Employee Rel. L.J. 185, 189-90 (1992)Google Scholar, which states:

267 See 42 U.S.C. § 12114(d)(1). In contrast, alcohol testing, according to the Equal Employment Opportunity Commission's Technical Assistance Manual, is deemed a medical examination under the ADA. See EEOC Technical Assistance Manual, supra note 260, § 8.9, at 8-7.

268 See Coil & Shapiro, supra note 258, at 35. ²⁶⁹See 42 U.S.C. § 12112(d)(3)(B).

270 29 U.S.C. §§ 2601-2654 (1994). ²⁷¹See id. § 2611(4)(A)(i).

272 See id. § 2612. To be eligible for FMLA leave, an employee must have worked at least one year and 1250 hours in the previous 12 months. See 29 C.F.R. § 825.110(a)(l)-(2) (1997). The FMLA also gives employees the right to a leave for the birth or adoption or foster care of a child, or to care for a spouse, parent or child who is suffering from a serious health condition. See id. § 825.112(a)(1)—(3).

273 See 29 C.F.R. § 825.114(a) (1997).

274 See id. § 825.114(d).

275 See 29 U.S.C. § 2614(a)(2) (stating that "[t]he taking of leave ... shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced"); 29 C.F.R. § 825.112(g).

276 See 29 C.F.R. § 825.112(g).

277 See id.

278 See SEIU Announces Campaign Against Three Giant Health Care Companies, Daily Lab. Rep. (BNA) No. 80, at CC-3 (Apr. 25, 1996).Google Scholar

279 See Darryl Van Duch, Employed Physicians Unionizing, Nat'l L.J., July 21,1997, at A1.

280 Medical residents and interns are excluded from coverage under the National Labor Relations Act (NLRA) because they are considered graduate medical students rather than employees. See Cedars-Sinai Med. Ctr., 223 N.L.R.B. 251, 253 (1976). Independent physicians who band together for collective bargaining purposes run the risk of violating federal antitrust laws. See Sobol, Larry V. & Hepner, James O., Physician Unions: Any Doctor Can Join, but Who Can Bargain Collectively?, 35 Hosp. & Health Services Admin. 327, 330 (1990)Google Scholar. And physicians, generally, have fallen outside the scope of the coverage of the NLRA because their responsibilities often include supervisory/managerial style functions, including directing the work of other employees and/or serving on committees that help formulate an institution's medical policies. See FHP, Inc., 274 N.L.R.B 1141, 1143 (1985); see also NLRB v. Yeshiva Univ., 582 F.2d 686, 695 (2d Cir. 1978) (holding that employees who "formulate, determine, and effectuate an employer's policies" fall within the category of managerial employees and are thus exempt from NLRA coverage (quoting Retail Clerks Int'l Ass'n v. NLRB, 366 F.2d 642, 645 (D.C. Cir. 1966), aff'd, 444 U.S. 672, 691 (1979))).

However, the advent of managed care has changed the autonomy and independence of many physician practitioners, and interest is growing among physicians to engage in organized collective bargaining. See AMA Delegates Direct Association to Find Ways for Doctors to Bargain, Daily Lab. Rep. (BNA) No. 125, at C-l (June 30, 1997)Google Scholar. Recently, the National Labor Relations Board (NLRB) ordered Thomas-Davis Medical Centers, a health maintenance organization (HMO) operating offices in Tucson, Arizona, to bargain with the Federation of Physicians and Dentists/National Union of Hospital and Health Care Employees on behalf of 150 full-time salaried physicians. See Health Care Employees: NLRB Orders Thomas-Davis Medical Center to Bargain with AFSCMEfor Tucson Doctors, Daily Lab. Rep. (BNA) No. 150, at A-3 (Aug. 5, 1997)Google Scholar. The issue of whether these HMO physicians are supervisors and managers, and not employees, is now pending before the Court of Appeals for the District of Columbia. See id.

281 See Labor Management Relations Act of 1947, ch. 120, § 301(a), 61 Stat. 136, 156 (codified as amended at 29 U.S.C. § 185(a) (1994)).

282 See Johnson-Bateman Co., 295 N.L.R.B 180, 188 (1989).

283 See id. at 184. In a companion case, Star Tribune, 295 N.L.R.B. 543, 546 (1989)Google Scholar, the NLRB held that the drug testing of employment applicants is not subject to mandatory bargaining.

284 See August A. Busch & Co., Inc., 309 N.L.R.B. 714, 716 (1992)Google Scholar (finding that availability of the grievance-arbitration mechanism triggers the NLRB's deferral doctrine); Inland Container Corp., 298 N.L.R.B. 715, 716 (1990)Google Scholar (holding that deferral to arbitration is proper even though alleged unilateral change in collective bargaining of drug testing programs is not a dispute over the meaning of a specific contractual provision).

285 See Southern Cal. Edison Co., 310 N.L.R.B. 1229, 1230-31 (1993)Google Scholar (deferring to arbitrator's finding that the challenged drug tests were directly and reasonably related to safety considerations).

²⁸⁶See id. at 1230-31. ²⁸⁷See id. at 1231.

288 657 N.E.2d 145 (Ind. Ct. App. 1995).

289 936 F.2d 435 (9th Cir. 1991). This case involved an employee who was fired for failing a unilaterally implemented drug testing program. See id. at 438. The court of appeals upheld the district court's dismissal of state privacy claims because the state claims were too entangled with the interpretation of the collective bargaining agreement. See id. at 440.

290 See Jobes, 657 N.E.2d at 149.

291 29 U.S.C. § 185(a).

292 Jobes, 657 N.E.2d at 149. "Whether Jobes was improperly required to submit to a drug test is inextricably intertwined with management's control and regulation of the terms and conditions of her employment. Because Jobes' claims are inseparable from the parties' rights and obligations under the collective bargaining agreement, they are preempted by Section 301." Id. at 150 (citation omitted).

293 964 F.2d 706, 707 (7th Cir. 1992).

²⁹⁴See id. at 710.

295 See id.

296 Id.; see also United Food & Commercial Workers Union, Local 588 v. Foster Food Prods., Nos. CV-F-93-5557 OWW, CV-F-93-5319 OWW, 1994 WL 570367, at *9-10 (E.D. Cal. May 23, 1994) (stating that the only occasions in which a court can overturn an arbitrator's award are when the arbitrator "has dispensed his or her 'own brand of industrial justice,' issu[ed] an award which 'fails to draw its essence' from the collective bargaining agreement" or has violated public policy (citing Stead Motors of Walnut Creek v. Automotive Machinists Lodge No. 1173, 886 F.2d 1200, 1208 (9th Cir. 1989))), aff'd sub nom. United Food & Commercial Workers, Local 588 v. Foster Poultry Farms, 74 F.3d 169, 175 (9th Cir. 1995).

297 See United Paperworkers Int'I Union v. Misco, Inc., 484 U.S. 29, 36 (1987).

298 See id. at 43.

299 See id. at 33-34, 44-45.

300 See id. at 43 (citing W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766 (1983)).

301 993 F.2d 357, 364 (3d Cir. 1993).

302 See id. In support of its holding, the Third Circuit cited to federal appellate decisions where arbitration awards had been vacated under similar circumstances, including Delta Air Lines, Inc. v. Air Line Pilots Ass'n International, 861 F.2d 665, 674 (11th Cir. 1988)Google Scholar (vacating, by reason of public policy, arbitrator's award reinstating airline pilot discharged for operating airplane under the influence of alcohol) and Amalgamated Meat Cutters v. Great Western Food Co., 712 F.2d 122, 123, 125 (5th Cir. 1983)Google Scholar (vacating, by reason of public policy, arbitration order reinstating employee who had overturned a tractor trailer and admitted to drinking while on duty).

Likewise, the Court of Appeals for the Fifth Circuit, in Gulf Coast Industrial Workers Union v. Exxon Co., 991 F.2d 244, 250 (5th Cir. 1993), concluded that an arbitration award directing reinstatement of an employee in a safety-sensitive position discharged for testing positive for cocaine while on the job, and for having twice before breached company drug policy, violates a national policy against drug use. The court emphasized the extremely safety-sensitive nature of the job at issue, which "had the capacity to place thousands of people, as well as the surrounding environment, at risk." Id. at 252.

303 See Monroe Auto Equip. Co. v. International Union, Unit of Local 878, 981 F.2d 261, 269 (6th Cir. 1992).

304 See id.

305 See id.; see also United Food & Commercial Workers, Local 588 v. Foster Poultry Farms, 74 F.3d 169, 174-75 (9th Cir. 1995) (holding that arbitrator's award for reinstatement of two employees who failed employer's unilaterally implemented random drug testing program did not violate public policy, notwithstanding DOT regulations requiring employers of all commercially operated vehicles to implement random drug testing programs, where regulations did not mandate discharge of employees who fail random drug tests and did not preclude employers from bargaining with un ions over discretionary features of a testing program).

306 See Montoya, Isaac D. & Elwood, William N., Fostering a Drug-Free Workplace, Health Care Supervisor, Sept. 1995, at 1, 5.Google ScholarPubMed

307 See id.

308 See CSA Report, supra note 69, at 6.

309 Because of its demonstrated effectiveness in boosting the success of any drug testing pro gram, inclusion of educational programs in drug testing policies have increased 170% over recent years. See DeLancey, supra note 4, at 57. According to Eric Rolfe Greenberg, Director of Management Studies at the American Management Association, companies that combine a testing policy with an educational program have positive drug testing rates 33-50% lower than those employers who simply drug test without benefit of any educational initiative. See Greenberg, supra note 4, at 24.

310 See AHA Policies, supra note 56, at 1.

311 See id. at 5.

312 See id.

313 See Kizziar & Nichols, supra note 24, at 21; see also supra Part II.B (discussing suspicion- based testing).

314 See DeLancey, supra note 4, at 58.

315 A study by the DOT showed that 85% of drivers tested pursuant to reasonable suspicion were negative. See Jonathan A. Segal, Urine or You're Out, HR Magazine, Dec. 1994, at 30, 34.

316 See CSA Report, supra note 69, at 4; see also American Fed'n of Gov't Employees, L-2110 v. Derwinski, 777 F. Supp. 1493, 1493 (N.D. Cal. 1991) (upholding random testing of any medical position that involved direct patient care, including physician, pharmacist and nurse); Kemp v. Claiborne County Hosp., 763 F. Supp. 1362, 1368 (S.D. Miss. 1991) (stating that any job involved with direct patient care should be considered safety-sensitive for drug testing purposes).

317 AMA Council On Long Range Planning and Dev., American Med. Ass'n, Policy Compendium § 95.984 (1995).

318 See Fellows, supra note 36, at 22.

319 See id.

320 See Rothstein, supra note 219, at 691.

321 See id. at 692. ³²²See id. at 691.

323 See id. at 692.

324 See Cairns & Grady, supra note 12, at 504-05.

325 See id. at 507.

326 See AHA Policies, supra note 56, at 3.

327 An appropriate "chain of custody" procedure includes sealing, labeling and numbering the sample in the presence of the tested employee, and recording the date and time of the sample, the date and time it was sent to the lab, the name of applicant/employee and the name of the sampler. See Cairns & Grady, supra note 12, at 537. A chain of custody document should accompany each sample to the lab and should contain the name of every person who has handled the sample, along with the date and time of transfer to the next person in the chain. See id.

328 See AHA Policies, supra note 56, at 4. In its 1996 drug testing survey, the American Management Association reported that 76% of their respondents now use an MRO, up from 48% in 1994. See American Management Survey, supra note 3, at 6.

329 See Ossi, supra note 47, at 24.

330 See Kinard, Jerry & Fenton, James, Drug-Testing Procedures Used by Hospitals: An Empirical Inquiry, Health Care Mgmt. Rev., Summer 1993, at 75, 76.CrossRefGoogle Scholar See generally Ossi, supra note 47, at 23-24 (stating that the impaired employee and employer should negotiate the terms of pre- treatment or return-to-work contracts and the consequences of an employee breach). A number of states have pending legislation that require certain classes of alcohol- or drug-impaired professionals to complete successfully rehabilitation programs as a condition of retaining their license. See Kinard & Fenton, supra, at 79.

331 "Three elements of preparation for an intervention are (1) documentation of work performance, (2) careful selection of the intervention team, and (3) selection of a specific treatment option, which may include a written agreement intended to bind the impaired professional to seek and complete treatment in order to retain employment." Ossi, supra note 47, at 23.

332 "In many cases with health care workers, it is the threat of job loss that motivates them to seek help." Id. (citing Pauwels, Judith A. & Benzery, David G., The Impaired Health Care Professional, 29 J. Fam. Prac. 477, 479 (1989)).Google ScholarPubMed

333 The American Hospital Association Management Advisory also recommends that continued employment or privileges for the health care employee or medical staff member who has success fully completed rehabilitation be conditioned on a return-to-work agreement that includes "unannounced testing for a specified reasonable period to ensure that a relapse has not occurred." AHA Policies, supra note 56, at 4.

334 See Capua v. City of Plainfield, 643 F. Supp. 1507, 1514 (D.N.J. 1986) (holding that plain tiffs' significant interest in safeguarding medical information disclosed by urinalysis was violated where City published to the media its suspension of firefighters, thereby "subject[ing] all Plainfield fire fighters to public suspicion and degradation"). But cf. Minckler v. Exxon Corp., No. 05-95-01015-CV, 1997 Tex. App. LEXIS 343, at *9-10 (Tex. App. Jan. 30, 1997) (finding that no defamation or privacy violation arose from private employer's disclosure to former co-workers that discharged employee was terminated as a result of testing positive for drugs because statement was made in good faith and former co-workers had a basis to know such information).

335 See AHA Policies, supra note 56, at 4.

336 See Americans with Disabilities Act of 1990, 42 U.S.C. § 12112(d)(3)(B) (1994).

337 See id. The ADA authorizes limited disclosure of confidential medical information to: (1) su pervisors or managers with a legitimate need to know of necessary restrictions of employee's duties; (2) first aid and safety personnel when employee may require emergency treatment; and (3) government officials charged with investigating compliance with ADA requirements. See id. Release of confidential medical records may also be made to state workers' compensation offices or "secondary injury" funds and to organizations that provide employee health or life insurance coverage. See AHA Policies, supra note 56, at 4.

338 See Seifman, Donald H. & Trepanier, Craig W., Electronic Administration of Personnel Records, Benefit Plans, and Direct Payroll Deposits; Evolution of the Paperless Office: Legal Issues Arising Out of Technology in the Workplace, Part II, Employee Rel. L.J., Spring 1996, at 61, 77.Google Scholar

339 See Kizziar & Nichols, supra note 24, at 22.

340 See AHA Policies, supra note 56, at 2. Unannounced random testing should be limited to physicians and employees required to enter into a return-to-work agreement. See id. at 3.