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Justice Dept. Defends Urine Drug Testing : Brief Filed in Boston Case After Judge Bans New Jersey Program

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Times Staff Writer

Asserting that workers have no “absolute expectation of privacy” that bars drug testing, the Justice Department on Friday defended the Boston Police Department’s program of random urinalysis for officers and civilian employees.

In going to court for the first time on the issue, the Justice Department cited President Reagan’s new executive order mandating drug testing and said that the Boston case, stemming from a legal challenge filed by a Boston police union, will have a significant impact on the law.

The government’s brief was filed a day after a federal judge in Newark, N.J., ruled that mandatory drug testing was an unconstitutional invasion of privacy. But the drug test in the New Jersey case appears to lack some privacy protections incorporated in the Boston program.

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Routine ‘Screening Devices’

“Drug testing raises no greater constitutional concern than other testing devices such as physical examinations, fingerprint checks or background investigations routinely employed as screening devices,” Assistant Atty. Gen. Richard K. Willard said in his motion supporting the city of Boston’s request that the suit be dismissed.

The Boston plan, covering the department’s 1,800 officers and 600 civilians, provides for random tests for cocaine, marijuana, heroin and PCP. Anyone testing positive is subjected to one of three follow-up verification procedures. Those who test positive face discipline, including firing.

Frank J. McGee, attorney for the Boston Police Patrolmen’s Assn., said: “The basic issue remains the Fourth Amendment--whether a government agency can search a person’s body and seize urine without probable cause or suspicion” of wrongdoing.

Testing has been suspended until U.S. District Judge Robert E. Keeton decides the case.

Drug Tests Spread

In defending the Boston tests, the Justice Department noted that an increasing number of public and private employers are instituting tests to deter employees’ use of illegal drugs.

About 25% of the Fortune 500 companies are using urinalysis for drug detection, the department said, and another 20% are expected to institute testing in the next two years. The programs “have been enormously successful, resulting in fewer on-the-job accidents, increased productivity and improved employee morale,” the department said.

Disputing the constitutional challenge, the department said: “In the context of the workplace, employees have no recognized, absolute expectation of privacy that precludes an employer from conducting reasonable inquiries into an employee’s fitness for duty.”

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The Boston test provides for advance notice to employees and is conducted in private, while the program implemented by the city of Plainfield, N.J., and stricken by a federal judge on Thursday, involved surprise testing conducted in the presence of another person.

Cites Right of Privacy

In the ruling against the Plainfield test, U.S. District Judge H. Lee Sarokin said: “The public interest in eliminating drugs in the workplace is substantial but to invade the privacy of the innocent in order to discover the guilty establishes a dangerous precedent, one which our Constitution mandates be rejected.”

Sixteen firefighters and four Police Department employees were suspended without pay after they tested positive for drugs in the unannounced tests.

“If we choose to violate the rights of the innocent in order to discover and act against the guilty, then we will have transformed our country into a police state and abandoned one of the fundamental tenets of our free society,” Sarokin wrote.

Justice Department officials declined to discuss the Plainfield case but noted that the Boston plan comes closest to mirroring procedures that will be used to test many federal employees in accordance with Reagan’s executive order.

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