Drug Tests at 3M Plant Yield Constitutional Debate
‘I’d rather spend six months in court defending this program than explaining in court how somebody got hurt in this plant.’
Richard J. Buska
3M site manager
An ambitious anti-drug program that includes mandatory annual urine tests of employees at 3M’s Camarillo factory has touched off a debate over how far private industry may legally go to rid the workplace of illicit drugs.
Workers who refuse the tests will be fired, say officials of the industrial giant based in St. Paul, Minn.
Critics contend that the program violates privacy rights granted in the California Constitution, and predict that lawsuits will help define the kinds of drug testing permissible in the state.
The program has offered an unusually candid glimpse into the workings of corporate drug screening, a matter that industry has tried to keep from public view for fear of fueling further controversy.
The testing at Minnesota Mining and Manufacturing is part of a groundswell nationwide, as companies attempt to weed out drug users to improve job safety and productivity.
A 1985 survey of corporations on the Fortune 1,000 list estimated that nearly one in five firms has instituted some form of drug testing, mostly for applicants. And analysts report that many more companies have started such policies in the past year or are considering them.
The survey by the Raleigh, N. C.-based research firm of Noel Dunivant and Associates also found that of those companies using drug screening, only 13% conduct random tests of current employees, such as 3M’s pilot program in Camarillo. Eighty percent used the tests for pre-employment screening and 47% administered them after accidents in which drug use was a “probable cause,” the study found.
Officials from 3M insist that they aim to foster safety, and say that they rehabilitate rather than remove employees with drug or alcohol problems. Moreover, they say complaints from workers themselves about on-the-job drug use spurred the tougher policy, which replaced a simple ban on controlled substances at the sprawling, 40-acre facility.
The Camarillo site was chosen by 3M, which has plants all over the United States, not because there was a particular drug problem there but because its managers proposed and developed the program, 3M officials say.
Drug tests at the factory, which is one of Ventura County’s largest employers and manufactures computer tapes, diskettes and data cartridges on round-the-clock shifts, began in January for applicants and on Feb. 10 for current employees. All of the plant’s 946 permanent employees, including managers, as well as temporary workers and on-site contractors, will be tested.
Urine testing for job applicants is the most common feature of private drug-testing efforts. It is 3M’s demand that current workers undergo random urinalysis that has sparked the most opposition.
Each week, a company computer spits out about 25 employee numbers, according to Richard J. Buska, the site manager who spearheaded the screening. Some will be tested more than once because of the random process.
The chosen employees head for the plant’s medical office the day that they are notified and produce a urine sample that is taken to a Ventura County drug laboratory, officials say. Chemical analysis detects traces of marijuana, cocaine, heroin, amphetamines, barbiturates and alcohol.
Employees concerned about the accuracy of the company-sponsored test may have their own physician analyze a second sample the same day at the company’s expense, Buska said.
Although the program began two weeks ago, 3M officials say they have not received any test results, so they cannot yet say how effective the testing is.
If samples test positive, the results will be confirmed with another chemical procedure, then sent to the medical department at 3M’s corporate headquarters.
Workers found to use controlled substances will be told to visit a counselor, who may assign them to a rehabilitation program at company expense, Buska said, but managers are not notified unless an employee refuses to comply.
Rehabilitation Ordered
If a worker tests positive a second time, he or she will be ordered to attend a drug rehabilitation program or face dismissal, officials say. Medical staff will inform managers if the worker is considered a safety risk.
Officials say they will also test individuals who appear to be under the influence of drugs.
“It’s a non-accusatory program aimed at rehabilitation,” Buska said. “If we wanted to get them out of here, we’d just test them and terminate them.”
Buska said the company settled on random tests rather than singling out suspected drug users because managers might be accused of discriminating against particular workers.
“So far, employee reaction seems to be accepting,” said 3M spokesman Lowell Ludford.
Buska estimated that each test costs $50, which includes clerical and mailing expenses, and the company hired a nurse to administer the screening.
The blanket approach to drug testing has drawn the heaviest fire from civil liberties activists and labor lawyers, who maintain that only workers who appear to be on drugs should be examined.
Three Ventura County lawyers have met with 3M employees in recent weeks to review privacy issues and attract potential “brave souls” to contest the screening in court. Management was not invited.
Critics charge that 3M is violating a state constitutional provision added in 1974 that guarantees privacy--along with life, liberty and property--as inalienable rights.
“I think it’s a dead-bang violation of the California Constitution,” said Barbara A. Lane, a Ventura attorney specializing in labor law. “I think it’s a very coercive test.”
“Tests like that are the kind our courts are likely to say are unjustified in undermining privacy,” added Richard A. Weinstock, a prominent Ventura lawyer.
Program Open to Attack
Opponents also believe that the 3M program could be attacked on other legal grounds, including state civil rights statutes that forbid discriminatory policies and put the burden on companies to show that testing procedures don’t treat workers unequally without cause.
The worker meetings have drawn a sharp reaction from management of the non-union plant.
“They’re trying to drive a wedge between me and my employees,” Buska declared. “I’d rather spend six months in court defending this program than explaining in court how somebody got hurt in this plant.”
About 50 workers attended a meeting in late January, and a handful went to one at Camarillo Library on Thursday night.
They spoke to reporters only on the condition that their names not be used. They expressed concern that urinalysis could supply 3M with information about their private lives, such as prescription medications and pregnancy, and worried that the tests could err and register “false positives.”
All complained about being screened when they had no history of drug abuse.
“I’ve spent over 25 years in the company, and I think I deserve some trust at this point,” one employee told the group.
A member of the plant’s engineering department said she was looking for another job and may refuse the test when her number comes up. “I don’t feel 3M has any right to put me through this harassment. I’m not late for work. I’m not making mistakes,” she said.
Second Thoughts
3M’s frank admission of drug problems and publicity about the testing has also triggered some second thoughts by managers and employees on discussing the program. Officials declined to permit interviews at the plant, citing workers’ complaints that they have been unfairly stigmatized as drug users.
“Some people don’t wear their 3M badges in public anymore. They’re tired of being asked about drugs at the plant,” one employee remarked recently.
Managers have portrayed the screening as a mere inconvenience that promotes safety.
“We believe it complies with all applicable legal requirements and therefore could withstand any legal challenge,” a 3M attorney said in a written statement.
“The legal problem could come if you made a mistake, if you accused somebody wrongly,” Buska argued.
“There’s no question that all of us want to be able to work in a safe environment, free from the fear that our co-workers might involve us in an accident because they are high on drugs or alcohol,” Buska wrote in a letter to employees last December. “Providing a medical specimen seems a small price to pay for that kind of freedom.”
Uncharted Legal Waters
Yet, 3M has entered uncharted legal waters with its aggressive program.
Critics say no case law directly relates the state’s privacy standard to drug-testing programs. Earlier cases have hinged on whether a particular test was inaccurate, or whether a worker was defamed when companies alleged drug use.
Since the 1960s, changes in employee-privacy law in California and other states have limited company discretion in compelling workers to supply information about their personal lives, according to authorities on privacy law. The transformation has been achieved by more liberal personnel practices, evolving judicial doctrines and new legislation, such as California’s ban on the use of lie detectors as a condition of employment or continued employment.
But the supremacy of employers’ rights has endured, the experts say, with courts holding that a worker--as someone voluntarily agreeing to do private work on private property--retains a less expansive right to privacy than customers or citizens in general.
In such cases, courts will likely study the specifics of the testing and rule on whether they represent a reasonable balance between employee privacy and a company’s freedom of action, according to Alan F. Westin, the author of several books on privacy and professor of public law at Columbia University.
Some Plans More Acceptable
For example, Westin said, courts are more likely to accept programs that stress rehabilitation rather than firings, as well as plans that distinguish between employees who test at levels causing serious impairment and those with minute traces deemed non-hazardous.
Policies that lump “recreational” drug users with addicts in counseling programs may also come under close judicial scrutiny, Westin predicted.
Buska said the screening was begun in an environment of growing concern about accidents and shoddy workmanship generally attributed to drug users. In addition, he said, the number of tip-offs that management has received from plant workers about drug use jumped in recent years.
Although the plant has won awards for safety and no past accidents could be directly blamed on drug use, Buska said, some workers worried that colleagues would involve them in accidents in the factory’s complex rollers and stamping machinery. Drug-dealing at the factory was also revealed.
3M spokesmen stress that drug abuse at the Camarillo plant is no worse than in American industry in general. Pointing to commonly cited studies of drug use, however, they say as much as 20% of the plant’s work force--about 175 employees--may abuse drugs or alcohol.
Typical drug users cause four times as many accidents as others, file more compensation claims and take more sick leave, according to a 1985 survey by the National Drug Helpline Service in Summit, N. J. Seventy-five percent of drug users admitted taking substances on the job.
Still, some critics of 3M’s plan have questioned even the rationale for instituting drug screening, given the factory’s reputation for safety.
“The whole concept of safety in this is ridiculous,” contended Art Bedard, president of the Ventura County chapter of the American Civil Liberties Union.
Bedard speculated that the testing program could be enforced selectively against the higher-paid workers. “The purpose is to decrease the number of people you have working at a higher-income level. It’s an excellent weapon to use in this way.”
3M officials also acknowledge a rarely discussed dilemma of firms nationwide--that workers can drastically cut their chances of being arrested by taking drugs on the job because there are no law enforcement officers on patrol at the plant.
“A huge business complex on private property is almost a haven for a drug seller,” Buska said. “If we don’t act, they have a free license to operate.”
