Testing employees for drug use -- civil rights battle brews

A clash between technology and civil rights is developing in the United States as employers, particularly those in the public sector, initiate programs to test their employees for possible use of illegal drugs. The issue, which has reached the courts in Iowa, Washington, D.C., and on Long Island in New York, has raised concern on the part of public employee unions and civil liberties lawyers.

Richard Emery, an American Civil Liberties Union (ACLU) lawyer in New York City, says the matter of subjecting employees to urine analysis (urinalysis) in search of drug users ``is certain to become a big issue nationally.'' Mr. Emery says he believes professional baseball's headline-making cocaine problem and commissioner Peter Ueberroth's effort to have major-league players voluntarily take drug tests will influence many employers. ``School administrators, police chiefs, and others will say, `My peopl e are more important to the public welfare than baseball players, so maybe we'd better have a drug-testing program.' ''

Emery and other civil liberties lawyers say that privacy and other civil rights are involved, and that a US Supreme Court test is an eventual likelihood.

In recent years urinalysis systems have been developed that can, when properly used, establish an individual's recent use of about 10 substances -- including alcohol, cocaine, marijuana, and opiates. The US Navy has used the deterrent effect of random urinalysis to dramatically reduce illegal drug use in its ranks.

School systems, responsible for the safety and well-being of pupils in classes and aboard school buses, have taken note of the Navy experience, and some have applied it.

But in the two current court cases, employees have objected to urinalysis as an invasion of privacy and violation of the Fourth Admendment guarantee of ``the right of the people to be secure in their persons . . . against unreasonable searches and seizures.''

On Long Island, 23 teachers seeking tenure in the Patchougue-Medford School District were told that they would have to submit to tests for use of 10 drugs under a program to control drug abuse. They challenged the policy in a court suit, and last June a State Supreme Court justice ruled that although the school system could continue drug-testing of new candidates for employment, tests of probationary teachers seeking permanent status must be discontinued.

In Washington, a school bus driver fired by the District of Columbia school system after failing a drug-use test is challenging that action in US District Court. Another fired bus driver's case is in arbitration.

Drug testing, especially for school bus drivers, has been proposed in other communities. In Boston, where a bus drivers' strike is threatened in connection with a dispute over dismissal of those with criminal records, a member of the school committee recently suggested that a urinalysis program for drivers might be a good safety measure. But he explained that it would have to be negotiated as part of the drivers' union contract.

Checking of the criminal records of employees and job applicants is a widespread practice among school systems as well as other employers, public and private. Some, including the Patchougue district, also fingerprint all employees and applicants. Drug violations are among the most common offenses found, school officials note.

Objections have been raised to fingerprints in some instances, but the strongest opposition is to urinalysis tests.

In court, Patchogue-Medford school superintnedent Henry P. Read declared, ``You can't have role models [teachers] who use cocaine.'' But Anthony Conetta, a high school mathematics teacher who is president of the district's Congress of Teachers, called the tests ``demeaning and unnecessary,'' and ``like a witch hunt.''

Susan Aleva, a spokeswoman for the school administration, said the ruling that probationary teachers cannot be tested is being appealed. She explained that Patchogue-Medford's four-year-old drug-abuse program for students was one of four recently cited by state officials as outstanding. Teachers are ``expected to support the program and adhere to its standards themselves,'' she added.

ACLU's Emery says urinalysis programs such as those used in Patchougue and Washington are ``very questionable.'' They involve no ``focused suspicion'' as required by court precedent and are, in effect, ``dragnet mechanisms.''

Emery and others point out that urinalysis as part of physical examinations required for hiring are not in question. It is the testing of people already on the job that is being challenged.

The only justification for subjecting employess to drug tests, say Emery and other civil liberties lawyers, is ``observed behavior.''

A spokeswoman for the American Federation of State, County, and Municipal Employees (AFSCME) said the union is very concerned about members being subjected to urinalysis for drug-abuse detection. Corrections officers are particular targets, she said, citing a US District Court ruling last summer that the drug test could be administered to guards in Iowa state prisons only on the basis of ``reasonable suspicion.'' The AFSME spokeswoman noted three other circumstances in which the union says the dru g tests are justified: when a person is being considered for employment, when there is some question of fitness for duty, or in a ``post-accident'' situation. She added that union officials believe the tests are being used as a form of ``harassment'' in some instances, and that they are not as reliable as some advocates claim.

ACLU attorney Arthur Spitzer, who has been involved in the Washington, D.C., school bus driver's case, says school authorities had no right, either under their contract or the US Constitution, to require drivers to submit to urinalysis.

Mr. Spitzer warns, ``Technology is overtaking the right to privacy. Just because the means to invade people's privacy is there -- that doesn't mean it should be used.''

Two physicians who run a cocaine ``help line'' in the New York City advocate widespread drug-use testing of many people whose job performance affects public safety and welfare.

Dr. Mark Gold, founder of the 800-COCAINE service at Fair Oaks Hospital in Summit, N.J., has urged that a range of people who ``deal in public safety'' be required to submit to random drug tests.

Last March Dr. Gold and Dr. Arnold M. Washton, director of research for the referral and information service, reported that in a survey of 227 people who called the help line, 25 percent said they used drugs at work every day and 45 percent did so on a weekly basis. ``Mandatory drug testing of employees whose jobs directly affect public safety . . . is more compelling in the light of [these] findings,'' Dr. Gold said.