Federal Workers Fight Drug Testing. Federal employees have filed at least 14 lawsuits challenging the legality of drug testing. CALIFORNIA: DRUG DEBATE
SAN FRANCISCO — A MAJOR component of the White House's war on drugs - drug testing in the workplace - is itself under heavy assault by workers who argue such tests are unconstitutional. In the two years since Ronald Reagan first called for government workers to set a national standard by submitting to drug testing, federal employees have filed at least 14 lawsuits challenging the idea. While Mr. Reagan's executive order created a huge wave of interest in drug testing, sweeping far beyond the nation's capital and into the private-sector workplace, the lawsuits nonetheless have partly stymied the plan.
Now, all eyes are on the US Supreme Court. Decisions pending in two key cases are expected to help lay the ground rules for any future testing programs - or, possibly, to prohibit them.
``A lot of people are waiting for the court decision, hoping it will clarify how to write [drug-testing] policies that still protect the rights of the individual worker,'' says Carlton E. Turner, former White House director of drug-abuse policy and now president of a drug-testing laboratory. If the Supreme Court finds testing of federal workers to be constitutional, Dr. Turner also expects to see ``a whole second wave of interest coming from the private sector.''
Meanwhile, opponents of on-the-job drug testing have convinced many lower courts to halt employee testing temporarily. Because unions and civil libertarians often have prevailed in federal court in San Francisco, more challenges have been filed here than in any other jurisdiction in the nation. Just last month, federal district Judge Marilyn Hall Patel in San Francisco ruled that random testing endangered workers' privacy rights - and she halted the US Transportation Department's sweeping plan to conduct random drug tests among 4 million truckers, bus drivers, and other transportation workers.
``The lawsuits have definitely played a role in postponing implementation'' of Reagan's executive order, says Elaine Kaplan, a lawyer for the National Treasury Employees Union, whose case challenging a US Customs Service drug-testing program is one of the two currently before the Supreme Court. To date, rulings in the lower courts, particularly the various US Circuit Courts of Appeals, have split over the issue, she says. ``The lower courts are in a lot of confusion.''
At issue in every case is where to draw the fine line between a worker's constitutional right to privacy and the government's right to secure the public safety.
Under the Fourth Amendment, citizens are protected from ``unreasonable search and seizure'' - and most courts have ruled that workers who are required to submit urine samples are subjected to bodily searches. ``So the question becomes: What is unreasonable?'' says attorney Vicki Marani of the Washington Legal Foundation, which supports most types of drug testing in the workplace. ``To answer that question, you have to address the circumstances under which testing is being conducted.'' (Types of drug tests, below.)
It's almost impossible to determine how many workers - either in the government sector or the private sector - have been exposed to drug testing. Programs are in place to test a plethora of federal employees, including members of the military, weather forecasters, immigration officers, park rangers, prison guards, and Secret Service agents. Some federal agencies are also planning to require companies in heavily regulated industries - such as railroads, nuclear plants, and defense contractors - to test their workers.
In the private sector, less than 1 percent of the work force underwent drug testing last year, according to a recent US Labor Department survey. Only 3 percent of employers have some kind of drug-testing program, but they are large corporations that employ 20 percent of America's workers, according to the report. Of the workers who were tested, about 9 percent showed positive for drug use.
Whatever the actual amount of drug testing, one thing is for certain: Many more workers are being tested than before Reagan issued his executive order on Sept. 15, 1986.
``This push is coming entirely from the federal sector,'' says Ed Chen, a lawyer with the American Civil Liberties Union in San Francisco. ``There was virtually no drug testing in the workplace five years ago. Now, we get calls in our office every day from people who complain about having to undergo drug testing.''
The Supreme Court decisions will give an indication of whether the wave set in motion by the Reagan administration will continue to sweep across the country, or whether it will run afoul on constitutional grounds. Either way, most experts agree, it is only the first round in what is likely to be a long process of determining when drug testing is ``reasonable'' and when it is not.
Drug test results for railway workers involved in accidents*
1986 170 accidents 738 employees tested 34 workers (4.6 percent) tested positive for substance abuse
1987 179 accidents 770 employees tested 42 workers (5.2 percent) tested positive for substance abuse * Federal Railway Administration tests entire train crew involved in an accident. Average crew size is 4. Source: Federal Railway Administration, US Department of Transportation.