Major urban fire departments on both coasts have been struck in recent months by incidents of drug and alcohol abuse on duty. Following on the heels of alcohol-related tragedies involving smaller, volunteer fire departments (see Fire Law, December 2003), these episodes raise questions about the adequacy of the fire service’s anti-drug and anti-alcohol programs.
In New York City, an engine operator tested positive for cocaine after his involvement in a crash while responding to a call in February that resulted in 11 injuries. This was one in a series of substance abuse incidents involving FDNY personnel, which also included an alcohol-related fight in a Staten Island firehouse on New Year’s Eve that seriously injured one firefighter.
Two San Francisco firefighters tested positive for banned substances following a Feb. 26 raid on a fire station. Fire department officials found a truck tillerman-driver who tested positive for marijuana and an acting lieutenant who had a positive blood alcohol content. Previously, the fire department had requested the city attorney to probe the possibility of on-duty drinking. According to the San Francisco Chronicle, the driver has acknowledged being at a party at which people were smoking marijuana. The officer told authorities that the alcohol in his system had come from an over-the-counter cold remedy.
While I don’t believe drug and alcohol abuse is widespread in the fire service, it is naive to believe that it doesn’t happen. And, as the recent episodes illustrate, the problem occurs in departments of all sizes, both career and volunteer. No one is exempt. Fire service leaders must recognize this reality and make full use of the legal tools available to deter alcohol and drug abuse. We in the fire, rescue and EMS services must hold ourselves to a higher standard.
A comprehensive anti-drug and alcohol abuse program starts with a strong policy statement. For example, the International Association of Fire Chiefs (IAFC) has adopted a zero-tolerance standard for the use of alcohol by fire service members at any time they might be called to duty. Any person who has consumed alcohol within eight hours (or still is noticeably impaired by alcohol consumed earlier) should not participate in department activities.
Effective workplace anti-drug programs must educate, identify, deter, treat and punish, if necessary, drug and alcohol abusers. Testing has been a common element of workplace anti-drug programs for more than a decade. So, IAFC calls for fire department policies that include alcohol testing for personnel involved in any accident that causes property damage to apparatus, or injury or death. There are longstanding federal requirements for drug testing of “safety sensitive” employees, such as pilots, truck drivers and nuclear power plant workers.
A strong testing policy serves as an effective deterrent, as well as a means of identifying personnel with potential drug or alcohol abuse problems. Random tests typically are designed to deter violations of the policy as much as to catch offenders. Procedures to assure accurate results must be a critical element of any drug testing program.
New York Fire Commissioner Nicholas Scoppetta has announced his intention to require random drug and alcohol tests for all uniformed department members as a result of the New York incidents. FDNY, like most departments, already has a zero-tolerance drug policy. This change will strengthen that policy and further deter abuse.
Government agencies may test employees whenever they have reasonable suspicion or probable cause to believe that the employee is a drug user. In addition, because of the sensitive nature of firefighters’ work, they should be subject to pre-employment, periodic, post-accident (or incident) and random testing.
In addition to its deterrent effect, drug and alcohol testing serves as the basis for treatment since it is the first step toward assessing the nature of an individual’s problem. Effective treatment should be tailored to the individual, based on a comprehensive assessment.
However, testing has long been a source of controversy, largely because of the concern that it represents an invasion of privacy. Others fear the harm that inaccurate test results might cause. These concerns have led to numerous legal challenges, often based on the Fourth Amendment to the U.S. Constitution, which prohibits the government from conducting “unreasonable searches and seizures.” Drug and alcohol testing generally is considered to be a form of search subject to this limitation. The key issue, then, is whether the test is “reasonable.”
This question is open to endless debate because it involves balancing the government’s interest against the amount of intrusion into a person’s privacy. Often, the outcome depends upon the specific facts of the testing program or the particular test itself. With respect to the fire service, the balance is between the public safety role of emergency personnel and the reasonable expectation of privacy of emergency workers. It is reasonable to expect more of emergency personnel than other workers.
A comprehensive testing program is essential to an effective anti-drug and alcohol abuse program. Strong fire service rhetoric must be backed up by action, and testing is one of those essential actions.
Steve Blackistone will present “Fire Law: Liability” at Firehouse Expo 2004 in Baltimore, July 13-18.Steve Blackistone, a Firehouse® contributing editor, is an attorney and a member of the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.
