Glover v. Eastern Nebraska Community Office of Retardation
| Decision Date | 06 February 1989 |
| Docket Number | No. 88-1678,88-1678 |
| Citation | 867 F.2d 461 |
| Parties | 49 Empl. Prac. Dec. P 38,765, 57 USLW 2470, 4 Indiv.Empl.Rts.Cas. 65 Patricia Ann GLOVER; Michael R. Macrander; Susan I. Davidson; Mary St. George; Rebecca A. Demuth; Timothy Sikora; Daphne Holmes; Shawne A. Kinsman; Daniel B. Champ, on behalf of themselves and all other persons similarly situated, Appellees, v. EASTERN NEBRASKA COMMUNITY OFFICE OF RETARDATION; Eastern Nebraska Human Services Agency; Michael Albert; Donald Claasen; Ronald Hineline; Ray Lind; Rogers Hilton, in their capacities as members of the Governing Board of the Eastern Nebraska Human Services Agency; Ray Christianson; Donald Moray, Appellants, The American Public Health Association, Amicus Curiae. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Bruce G. Mason, Omaha, Neb., for appellants.
Patrick W. Kennison, Omaha, Neb., for appellees.
Before HEANEY * and FAGG, Circuit Judges, and HANSON, ** Senior District Judge.
This case concerns the validity of a Nebraska administrative agency's personnel policy requiring certain employees to submit to blood testing for the viruses associated with acquired immune deficiency syndrome (AIDS) and hepatitis B. In this class action brought by affected employees, the district court held the policy violated the employees' fourth amendment rights against unreasonable searches and seizures. Glover v. Eastern Neb. Community Office of Retardation, 686 F.Supp. 243, 251 (D.Neb.1988). The court issued a corresponding order permanently enjoining implementation of the challenged portions of the policy. After carefully considering the district court's decision, we affirm.
Eastern Nebraska Human Services Agency (ENHSA) is a state agency dedicated to serving the needs of mentally retarded persons in Nebraska. Eastern Nebraska Community Office of Retardation (ENCOR) is a subagency of ENHSA covering a five-county area in the eastern part of the state. In response to a variety of events, ENHSA in 1987 adopted its Chronic Infectious Disease Policy No. 8.85. The policy, which applies to certain designated job descriptions, includes mandatory blood testing for the AIDS and hepatitis B viruses. In addition to testing, the policy requires employees to inform a personnel officer when they know or suspect they have one of the infectious diseases and to disclose medical records relating to treatment they receive for those diseases. Medical indications of the diseases or violation of the policy have employment consequences.
ENHSA's stated purpose for the policy is "the pursuit of a safe work environment for all employees and a safe training and living environment for all developmentally disabled persons receiving services from the [a]gency." The policy applies to job descriptions in which direct contact with clients occurs most frequently. The rationale for testing these employees is ENHSA's concern that clients who engage in violent or aggressive behavior associated with their conditions, such as biting and scratching, risk contracting one of the diseases from an infected employee.
After an initial court challenge, ENHSA revised the policy and readopted it in 1988. Several affected ENCOR employees then brought this class action, challenging the policy on a number of constitutional and statutory grounds.
During a trial to the court, the parties presented extensive evidence. This evidence included expert testimony on the following: the medical, psychological, and behavioral characteristics of the clients ENCOR serves; the training ENCOR employees receive; and the medical characteristics of the AIDS and hepatitis B viruses.
Based on this evidence, the court found:
The evidence establishes that the risk of transmission of the AIDS virus from staff to client, assuming a staff member is infected with [the AIDS virus], in the ENCOR environment is extremely low, approaching zero. The medical evidence is undisputed that the disease is not contracted by casual contact. The risk of transmission of the disease to clients as a result of a client biting or scratching a staff member, and potentially drawing blood, is extraordinarily low, also approaching zero. The risk of transmission of the virus from staff to client due to the staff member attending to a client's personal hygiene needs is zero. Further, there is absolutely no evidence of drug use or needle sharing at ENCOR, nor is there a problem of sexual abuse of clients by staff.
In short, the evidence in this case establishes that the risk of transmission of the [AIDS] virus at ENCOR is minuscule at best and will have little, if any, effect in preventing the spread of [AIDS] or in protecting the clients. Further, from a medical viewpoint, this policy is not necessary to protect clients from any medical risks.
* * *
* * *
* * * There [also] is no evidence in this case that the clients are at risk of contracting [the hepatitis B virus] from staff members.
Glover, 686 F.Supp. at 249, 251. Relying primarily on these findings, the district court concluded that under the fourth amendment, the mandatory blood testing policy was "not justified at its inception" for either the AIDS virus, id. at 250, or the hepatitis B virus, id. at 251. We agree.
Mandatory blood testing is a search and seizure that must comply with the standards of reasonableness imposed by the fourth amendment. Schmerber v. California, 384 U.S. 757, 767-68, 86 S.Ct. 1826, 1833-34, 16 L.Ed.2d 908 (1966). The search's reasonableness is measured by " 'balanc[ing] the nature and quality of the intrusion on the individual's [f]ourth [a]mendment interests against the importance of the governmental interests alleged to justify the intrusion.' " O'Connor v. Ortega, 480 U.S. 709, 719, 107...
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