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NFFE Successfully Challenges Forest Service Random Drug Testing Policy

by Susan McGuire Smith |

Calling the Forest Service’s drug testing policy for employees of the Job Corps Civilian Conservation Centers a “solution in search of a problem…” the appeals court has sent the agency back to the drawing board. (National Federation of Federal Employees-IAM v. Vilsack, C.A.F.C. No. 11-5135 (6/8/12))

According to the court’s opinion, the Job Corps program is run by the Department of Labor throughout the U.S. at both residential and non-residential centers, including 28 residential centers in remote rural areas that are run by the Forest Service. The Forest Service jobs centers offer vocational training related to conservation and management of public natural resources and recreational areas. The participants range from 16 to 24 ears and live and work at the Centers. They cannot keep cars on site. (Opinion pp. 1-3)

Job Corps has a Zero Tolerance Policy toward drugs. When they enroll students are told of the policy and given an initial drug test. If they fail it they go into a special training program and have to repeat the test within 45 days. If they test positive a second time, they are thrown out of the Job Corps. If they pass the test then they may be tested in the future if there is suspicion of drug use.

The parent agency of Forest Service, U.S. Department of Agriculture, has its own Drug Free Workplace policy. Under that policy all Forest Service Job Corps staff positions were designated for random drug testing. When the union objected, the agency backed off. However, in new contract negotiations in 2010 the Forest Service told the union that all Job Corps Center staff would be subject to random testing. The union went to court and asked for a declaratory judgment that this random testing policy violates the Fourth Amendment. (pp. 3-7)

The lower court sided with the agency, noting the agency’s interest in preventing illegal drugs by both students and staff at these Job Corps Centers was sufficient justification. (p. 7)

The union successfully took its case to the appeals court. The court held that the sweeping inclusion of all Job Corps Center employees in random drug testing without “special needs” to justify it was not warranted. The appeals court has tossed the case back to the district court and ordered that the union be given a preliminary injunction. (p. 27)

NFFE v Vilsack 11-5135

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Susan McGuire Smith

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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