Last September, Washington, DC, Fire and Emergency Medical Services Chief Kenneth Ellerbe walked into a city firehouse and found several cans of beer in the refrigerator. He immediately placed all units in the station (engine, truck and ambulance) out of service and ordered alcohol testing for all of the 15 on-duty firefighters.
It turned out that all of the firefighters tested negative, with no alcohol in their systems, and they were returned to service after a couple of hours. A grateful citizen had given the firefighters beer in gratitude for a job well done in extinguishing a fire in his house. Apparently, the firefighters did not drink the beer, but rather placed it in the station refrigerator.
The chief’s action in immediately ordering alcohol testing should remind us of just how seriously the fire service views on-duty drug and alcohol use. It also provides a valuable opportunity to review the legal principles that underlie testing programs.
Drug and alcohol tests intrude on our right to privacy from government searches that is protected under the Fourth Amendment to the Constitution. However, courts have held that firefighters may be subjected to testing due to their critical role in protecting the public’s safety. In many departments (including DC), firefighters have consented to testing as part of collective bargaining agreements. That is the first place to look in any case involving drug or alcohol testing because it defines what tests that firefighters have previously agreed to. If the testing is consistent with the terms of the agreement, then there are few grounds for appeal.
Aside from consensual testing, such as that in a collective bargaining agreement, courts have accepted five types of testing: pre-employment; periodic; post-accident or incident; random; and for cause (or reasonable suspicion). Although DC fire officials did not respond to a request for comment on this case, it seems clear that the chief’s order must have been based on his “reasonable suspicion” that the firefighters might have been drinking while on duty. But what is “reasonable suspicion” and did the chief have a legal basis for his action?
“Reasonable suspicion” is not a precise term that can be defined by a simple, objective test. Each case must be considered on the basis of its own circumstances. The test is less stringent than the requirement that a law enforcement officer have probable cause in order to make an arrest. There must, however, be some factual basis for the action, typically based on the events leading up to the order.
While courts have recognized that each case must be based on its particular facts, they have found factors that provide a basis for “reasonable suspicion” testing:
• Observation of an employee engaged in drug-related activity
• A pattern of abnormal conduct or erratic behavior
• An arrest or conviction for a drug-related offense
• Sudden change in work performance, including unexplained or excessive absenteeism, tardiness or negligence
• Evidence the employee has tampered with a drug test
• Information provided by credible sources or independently corroborated.
Each of these factors involves a specific action or pattern of actions by an individual who is under suspicion. Based on the publicly available reports about the DC incident, however, none of these elements is present. Even if the chief had been provided information consistent with the last bulleted item, none of the information appears to have shown evidence of consumption or intoxication by any firefighter at the station on the day the tests were ordered.
Did the chief have a “reasonable suspicion” that each firefighter in the station had been drinking beer or just that someone had been drinking? There does not appear to be any direct precedent, so it would be interesting to see whether the courts would allow testing of everyone in a group when there is reasonable suspicion of the group as a whole, but not any individual in the group. However, since everyone tested negative for alcohol, it is unlikely we will see litigation based on this incident.
The chief’s actions provide an opportunity to review an important part of the law and they raise questions about the limits of drug and alcohol testing. As I have written previously (“Strong Testing Policy Needed to Address Drug & Alcohol Abuse,” Firehouse®, July 2004), a comprehensive testing program is critical. But it also must be done consistent with our basic laws in order to maintain its credibility. As we can see from this example, that is not always easy to do.
STEVE BLACKISTONE, a Firehouse® contributing editor, is a Maryland attorney who directs state and local liaison activities for an agency of the federal government. Prior to his current position, he served in a variety of posts on the staff of the U.S. House of Representatives, working both on the personal staffs of members of Congress and on congressional committees. Blackistone also is an active volunteer EMT/firefighter with the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.