Under Attack : Drug Tests: Privacy Vs. Job Rights

One morning last year, as Barbara Luck sat at her computer terminal, two supervisors came by with an unusual request. They handed her a bottle and told her to produce a urine sample.

Luck was one of 486 Southern Pacific Co. employees in San Francisco to be asked that day for urine samples under the company’s random drug-testing program. She refused to comply. A few days later, she was fired for her refusal.

Now challenging her dismissal in court, the 34-year-old computer programmer has placed herself on the front line of the often rancorous conflict over drug testing in the American workplace.

Drug-testing programs are multiplying rapidly in private industry, professional sports, the armed forces and government offices, including--on orders of President Reagan--the vast federal bureaucracy.

At least 30% of the Fortune 500 companies are doing some form of drug testing, and one estimate is that 50% will be testing by the start of next year. In California, companies with testing programs range from Chevron Corp., the state’s largest private employer, to Transit Contractors, a Long Beach bus firm with fewer than 100 employees.

The tests are most commonly used to screen out job applicants who are drug users. But as drug testing spreads, thousands of workers already employed can expect to be ordered to submit urine samples, whether on a random basis, or on orders of a suspicious supervisor, or as part of a routine physical examination. Sometimes, an attendant will watch as the worker produces the urine sample, to prevent the worker from tampering with the specimen.

Already, tens of thousands of job applicants have been rejected, and hundreds, perhaps thousands, of employees have been fired because they have flunked drug tests, according to interviews with corporate, government and union officials.

Regulating Behavior

Drug testing is under attack on several fronts. Critics argue that urine testing invades a worker’s privacy and violates constitutional protections against unreasonable search and seizure. They attack drug screening as seeking to regulate a person’s behavior off the job and as a potential instrument of harassment. And they argue that the most widely used drug tests are subject to significant error rates--causing innocent persons to be labeled as drug users.

In their haste to begin drug testing, some companies have launched programs without sufficient attention to good laboratory practices, adequately trained staff or sound testing procedures, according to drug-test consultants.

Ted Schramm, a San Diego consultant whose growing firm, Behavior Research Inc., advises companies on drug screening, said 90% of his company’s work involves cleaning up slipshod programs. “Bad programs exist in far more places than good ones,” he said. “They violate people’s rights all the time.”

Proponents of drug screening argue that it will lead to safer and more productive workplaces. At Southern Pacific, for example, accidents that could be attributed to human error declined by two-thirds after the railroad adopted an expanded drug-testing program. The railroad credits the program for much of the drop.

Called a Deterrent

“A drug-testing program in and of itself is a deterrent to employee drug use on the job,” said Robert Taggart, the company’s vice president for public affairs.

Often overlooked in the debate over drug testing is the help that many companies provide workers who are drug addicted, proponents argue. The most elaborate drug-testing programs provide for rehabilitation, including hospitalization if needed, and companies with such programs say they fire drug-disabled workers only if they do not respond to treatment.

Proponents also contend that the privacy issue is exaggerated. In a legal brief filed in a dispute over mandatory testing of Boston’s police force, the U.S. Justice Department argued: “Drug testing raises no greater constitutional concern than . . . physical examinations, fingerprint checks or background investigations routinely employed as screening devices.”

The battle lines in this dispute are not always neatly drawn.

For example, some unions and other employee groups have been racked by internal disagreement over whether to oppose or support drug-testing programs. Many union leaders, in fact, say they are as concerned as employers about a drug-free and safe workplace, and approve of drug testing under some circumstances.

‘Coming in Screwed Up’

“We don’t want someone coming in screwed up who will blow up a refinery and kill his fellow union brothers,” said Dan Edwards, health and safety director of the Oil, Chemical & Atomic Workers Union.

Last month, a union local for construction equipment operators in Texas began requiring its 2,800 members to pass a drug test before accepting a job. The program was approved by 97% of the 700-plus members who voted on it, a union leader said.

The union representing bus drivers for the Southern California Rapid Transit District supports testing of its members if there is reason to suspect that drugs have been used, but opposes random testing.

On the other hand, the United Auto Workers is opposing a General Motors Corp. proposal for on-the-job testing of suspected drug users.

At the same time, employers are far from like-minded on such questions as how strictly to enforce the tests and who should be tested under what circumstances.

Spotless Record

What, for instance, should be done about a valued employee with a spotless record who on a Monday morning tests positive for marijuana use?

And what of companies, such as Greyhound Transportation Co., that require any employee who is off work for more than a month to undergo testing upon return? Since pregnancy leaves often are six weeks or more, such policies can translate into drug tests for returning female employees simply because they decided to have babies.

The motivation behind drug-testing programs appears to be central to the debate.

“Some companies seem to have a genuine concern about people being on the job impaired; others are on pure, gross witch hunts,” Edwards said.

It is in this atmosphere of uncertainty--driven by the nation’s new-found resolve to create a “drug-free America”--that the future of drug testing in the United States is being shaped.

With scores of lawsuits pending in courthouses around the nation, it seems inevitable that the dispute over drug testing will reach the U.S. Supreme Court, perhaps before the decade is over.

Among the issues awaiting resolution:

- What is the appropriate balance between an employee’s right to privacy and the employer’s interest in providing a safe workplace and a drug-free work force?

- Does a worker whose job lacks any substantial effect on safety have a greater right to refuse a drug test than a worker whose job clearly has safety ramifications?

- Should an employee be fired after a test shows the presence of drugs, even if there is no evidence that drug use affected the employee’s work?

- Should jobholders be accorded greater rights than job applicants when it comes to screening?

Although lower court decisions have been mixed and sometimes contradictory, some judicial patterns seem to be emerging.

Cases of Public Safety

Drug-testing programs most likely to survive legal challenge appear to be pre-employment screening and on-the-job testing for cause--when, for example, a worker seems to be impaired. This is especially true if the jobs involve public safety--for example, police officers, airline pilots or nuclear plant workers.

In one such case last year, U.S. District Judge Charles A. Legge in Washington upheld the Department of Transportation’s drug-testing rules permitting supervisors to compel urinalysis of railroad crew members if there is “reasonable cause” to suspect drug-induced impairment. In presenting its case, the department linked drug use to 48 train accidents in the last 10 years, causing 37 deaths and $34 million in property damage. Legge’s decision is on appeal.

Similarly, a federal appeals court in Washington last year upheld the right of the City of Washington, D.C., to compel urinalysis of police officers when a supervisor has a reasonable suspicion of drug use.

“Without a doubt,” said Judge George R. Gallagher, “drug abuse can have an adverse effect upon a police officer’s ability to execute his duties. Given the nature of the work and the fact that not only his life, but the lives of the public, depend upon his alertness, the necessity of rational action and a clear head unbefuddled by narcotics becomes self-evident.”

Applicant Testing

Drug testing for job applicants has generated few legal challenges. One federal court suit is under way in Philadelphia, where 13 job candidates are challenging the constitutionality of the U.S. Postal Service’s pre-employment urinalysis. All 13 flunked the drug screening initially. But several of them demanded that they be retested, passed and then were hired.

Generally, pre-employment drug testing is thought by most lawyers to be on firm legal ground if done with adequate safeguards. This is because a job applicant is regarded as having considerably fewer rights than someone already employed.

Least likely to survive a lawsuit are programs that fail to incorporate due process guidelines, especially random, unannounced on-the-job testing or testing that results from anonymous tips.

This is especially true if it is a government worker who is being tested. Most lawyers agree that government employees, in general, have a greater ability to resist a drug test than workers in private industry. The reason, they say, is that certain constitutional protections may be invoked by an individual against a government agency but not against a private entity.

Firing Voided

In a case decided last year, for example, the firing of an Iowa prison guard for refusing to submit a urine sample was voided by a federal judge on constitutional grounds. Prison officials had received an anonymous tip that the guard was a drug dealer. But U.S. District Judge Harold Vietor ruled that there was insufficient evidence to justify the demand for a urinalysis. The case is on appeal.

In a case involving the police and firefighters of Plainfield, N.J., U.S. District Judge H. Lee Sarokin last month held unconstitutional a “mass roundup urinalysis” conducted by the city.

More than a dozen of Plainfield’s 244 police officers and firefighters tested positive for marijuana or cocaine. They were given the option of resigning or being suspended; instead, they sued.

“The threat posed by widespread use of drugs is real, the need to combat it manifest,” Sarokin ruled. “But it is important not to permit fear and panic to overcome our fundamental principles and protections.”

His ruling came only three days after President Reagan announced plans for mandatory, mass testing of federal employees--a proposal that already has drawn a lawsuit by the 120,000-member National Treasury Employees Union.

Used Less Frequently

Random testing is used less frequently than pre-employment screening or testing for cause. But its use is increasing, and it has inspired the most opposition from civil libertarians, labor unions and other employee groups.

Proponents of random testing include Baseball Commissioner Peter Ueberroth and Los Angeles Police Chief Daryl F. Gates. According to Cmdr. William Booth, LAPD’s chief spokesman, “The chief feels that drugs are the No. 1 problem we face in this country, more important than Russian missiles pointing at us or any foreign ideology.”

Opponents of random testing include Sherman Block, Los Angeles County sheriff, and Lawrence Tisch, chairman and chief executive of Loews Corp. and now interim CBS president.

“We still live in America,” Tisch said. “I think if you wanted to destroy the morale of the company, that would be it. In effect, you’re accusing your employees of being on drugs.”

Some drug testing disputes turn especially bitter, with workers complaining that they are being harassed by their employers and the employers complaining that the workers are being insubordinate.

One such case involves five workers at a nuclear power plant under construction in Waynesboro, Ga. The five were accused of drug use in anonymous calls to the Georgia Power Co.’s “drug hot line.” Three of them refused to submit urine samples; two tested positive but insisted that they were not drug users.

All five were fired--for insubordination or because they were not “drug free,” according to a company spokesman.

But the American Civil Liberties Union, in a complaint to the Department of Labor, said the five were ordered tested and later fired because they had complained to the Nuclear Regulatory Commission about alleged safety violations at the plant.

Woman’s Experience

One of them was Susan Register, 32, who had worked at Georgia Power for 4 1/2 years.

When Register, a junior coordinator in the mechanical division, was initially called in for testing on Jan. 22, 1985, she said she willingly complied because she was not a drug user. Later that day, Register said, she was told to return the following day and produce another sample because she had not provided enough urine the first time.

Register gave the following account of what happened the following day:

“I walked into the bathroom with a company nurse and sat down on the commode. The nurse said, ‘Stand up, we’re going to do it differently today.’

“The nurse made me bend over at the waist and hold my right hand in the air. My blue jeans were around my ankles. I had a bottle in my left hand between my thighs. If you were a woman you could understand how hard it would to be to get urine this way. I was barely hitting the bottle. I wet all over my pants and my left hand.”

When she was finished, Register said, she transferred the bottle from her left hand to her right hand because she did not want to give the nurse a bottle from her “soaking wet” left hand.

Refused Further Tests

“I handed her the bottle. She yelled at me and said I had not followed the procedure and said I would have to take the test again,” Register said. “I wish I had thrown the bottle in the nurse’s face.”

She said she pulled up her pants, walked out, vomited and then left work.

The next day, she was told to submit yet another urine sample. She refused. “No one will ever make me do that again. I’ll never humiliate myself that way again,” Register said.

She was fired.

Georgia Power officials have denied that retaliation was a motive in ordering tests on the five workers. They declined to discuss any of the individual cases, including Register’s.

The Georgia Power case, and that of Barbara Luck, may help clarify the rights of employers to test workers who show no evidence of drug use.

No Evidence of Use

In Luck’s case, even Southern Pacific acknowledges that there was no evidence that she was a drug user.

Moreover, as Taggart, the public relations director for Southern Pacific, conceded, “The quality of her work did not indicate any drug problem.”

Why, then, was she fired?

“Insubordination,” Taggart said. “Practically speaking, it does you very little good to have a rule that says an individual is subject to testing if the rule cannot be enforced.”

Luck’s pending lawsuit is being closely monitored, particularly by companies and government agencies in California because the right to privacy is specifically embodied in the state’s Constitution--as it is in a dozen other states.

Southern Pacific is involved in another widely watched case, that of Raymond Alan Pettigrew, an office manager for the railroad in San Francisco until last December.

Contested Accuracy of Test

On May 3, 1985, Pettigrew showed “positive” for cocaine on a random drug test. He contested the accuracy of the results, saying that the only drugs he had taken were non-prescription medicines for asthma and allergies.

He took a second urine test five days later. The results were negative, but that did not resolve the matter because cocaine generally is undetectable 48 hours after ingestion.

The railroad put Pettigrew in a five-day drug evaluation program at an Oakland hospital, where Pettigrew admitted that he had been a “weekend user” of cocaine more than three years earlier, but denied that he was then using the drug.

After interviewing and examining him, a hospital doctor, Edward Goldstein, wrote a report that concluded: “IMPRESSION: Rule out cocaine abuse.”

Pettigrew thought that was the end of it because a Southern Pacific counselor had indicated that the five-day program might be sufficient. But Pettigrew was misinformed, according to an Southern Pacific lawyer. In fact, the lawyer said, the railroad’s policy required any employee who had used cocaine to participate in a monthlong rehabilitation program or be fired. So Pettigrew was placed in a 28-day program at a Petaluma hospital.

Showed No Evidence

Pettigrew successfully completed the Petaluma hospital program; two medical reports concluded that he showed no evidence of chemical dependency.

Then, the 30-year-old Pettigrew was told that in order to return to his job he must totally abstain from alcohol and other drugs, and attend two Alcoholics Anonymous or Narcotics Anonymous meetings per week. He also had to submit to unannounced alcohol and/or drug screening tests.

During a four-month period after he returned to work on July 8, 1985, Pettigrew was compelled to submit to 10 random urinalyses. All proved negative, according to court documents.

After the 10th test, he sued the company, contending that Southern Pacific had damaged him by branding him as a drug user and subjecting him to intentional infliction of emotional distress, “false imprisonment” and loss of consortium, a reference to the fact that he had been separated from his wife and three children while in the Petaluma hospital.

In December, a San Francisco Superior Court judge issued a preliminary injunction barring Southern Pacific from testing him further or compelling him to attend AA or NA meetings.

Demoted, Pay Cut

A few days later, Pettigrew was demoted and his salary was lowered from $722.65 a week to $507.85 a week.

Pettigrew then amended his lawsuit, alleging that the company had breached its employment contract with him and retaliated against him for exercising his constitutional rights.

Southern Pacific denied that it had slandered Pettigrew, falsely imprisoned him or demoted him in retaliation for having filed a lawsuit. In papers filed in response to Pettigrew’s suit, the company stressed his admission of prior cocaine use and the positive test for cocaine on May 3, 1985. A Southern Pacific attorney also said that the railroad’s medical director had spoken to personnel at the Oakland hospital who “disagreed” with Dr. Goldstein’s assessment of Pettigrew.

Pettigrew has also sued the Oakland hospital.

The Pettigrew case is being watched because it may help define an employer’s right to require participation in a drug rehabilitation program and submission to urinalyses as a condition of continued employment.

Most drug-testing programs assume that an employee who is found to be “positive” on a drug test is unfit to work, and no actual evidence need be produced to show that the employee cannot perform his job.

It is an assumption not yet tested in the courts. But it is running into trouble with labor arbitrators, who increasingly are limiting the freedom of employers to fire workers solely on the basis of a positive drug test.

In Detroit last year, an arbitrator ordered Greyhound to reinstate a mechanic who tested positive for marijuana because, the arbitrator ruled, there was “a total absence of evidence establishing any relationship between the presence of marijuana in grievant’s urine and the company’s operations, including such relevant factors as safety, efficiency and productivity.”

Such rulings recognize the limitations of drug tests, medical experts say. It is generally agreed that such tests do not measure actual impairment, but only show that drugs are present in the body. In some instances, tests are detecting traces of drugs ingested days earlier. Marijuana is of particular interest because traces can remain weeks after it is taken.

Adviser to NFL

“You diagnose (marijuana) impairment by physical examination and not by a laboratory test,” said Dr. Forrest Tennant of West Covina, who advises the National Football League on drug testing.

In another case involving a Greyhound employee, a driver tested positive for marijuana upon returning to work after an extended layoff. Greyhound refused to give him his job back.

A year later, the driver won in arbitration, got his job back and received $37,000 in back pay. The arbitrator ruled that since the driver had no reasonable expectation of driving a bus while laid off, what he did on his own time was his own business.

Such cases have led some companies to tailor their anti-drug efforts specifically to assess an employee’s fitness to work, rather than making decisions on the basis of urinalysis results alone.

Southern California Edison, for example, has trained supervisors at its San Onofre nuclear power plant to look for aberrant behavior among employees. And in the last year, Edison pulled 24 employees out of the San Onofre work force and had their blood tested. An Edison spokesman said blood tests were done because they can determine much more reliably than urinalysis how recently alcohol or drugs had been ingested--and, presumably, how much impact the substances might have on a person’s ability to work.

All Tested Positive

All 24 tested positive and were deemed unfit to work, an Edison spokesman said. The bulk of them were drunk; the rest had taken amphetamines.

Relatively few companies resort to blood tests because they are far more expensive and are considered an even greater invasion of privacy than urinalysis.

Proving that a positive drug test means that a worker is impaired is only one example of how drug testing is intruding upon labor relations. With few exceptions, companies with union contracts can expect resistance if they try to install drug-testing programs without first negotiating.

In Pennsylvania, a federal court judge in August barred the imposition of mandatory testing at the Three Mile Island nuclear plant until a union challenge is resolved by an arbitrator. The union asserted that a drug-testing program constitutes a material change in its collective bargaining agreement, which cannot be imposed unilaterally.

Pacific Gas & Electric Co., the San Francisco-based utility, is an example of a company that has successfully negotiated a drug policy with union leaders. Among other things, the policy limits the circulation of drug test results within PG&E.;

Can Demand Examination

A suspicious supervisor can demand that an employee be examined by a doctor or a panel of physicians, a process that may include a urinalysis or even a blood test for drugs.

But without the employee’s specific authorization, the doctor or panel may only tell company officials whether that person is fit or unfit for duty. “So it’s not saying whether someone tested positive or negative for a drug,” noted Tom Dalzell, a lawyer for the International Brotherhood of Electrical Workers, which represents thousands of PG&E; employees.

Dalzell said the union fought vigorously for this provision in the PG&E; policy because it wanted a testing program that focused on whether a worker was impaired, rather than whether a worker had used drugs.

TAKING SIDES