Firms Still Test for Drugs Despite Curbs of S.F. Law

Nearly a year after San Francisco enacted the nation’s first, and only, law to curb widespread drug testing in the workplace, many employers are still screening workers--and thus raising concern among some that the law’s spirit, if not its letter, is being violated.

In addition, the law’s exceptions have created vastly different standards of protection for many workers who hold similar jobs.

For instance, the law would allow the San Francisco 49ers football team to be tested, but not the Giants baseball team. The city’s police officers and city ambulance drivers can be tested but, for the most part, armed security guards and private ambulance drivers cannot be.

The bill’s author, Supervisor Bill Maher, nonetheless said the law is protecting 90% of the city’s work force from “corporate overreaching.”

The San Francisco law was adopted at a time when much of America, it seemed, was rushing to embrace the screening of employees for drug use. In New York’s Suffolk County, a similar effort nearly became law but was vetoed by the county executive.

San Francisco’s law prohibits employers from doing random testing under any circumstances, although it does allow selective testing of employees under narrow and specific conditions.

Among those not covered are police, sheriff’s deputies, firefighters, police dispatchers or other emergency services personnel. Federal and state workers also are exempt because they are governed by state and federal law on such matters, as are members of unions that have agreed to allow drug testing.

The law allows for employee testing if a supervisor has reason to suspect drug use. But even then it can be done only if that employee’s job poses a “clear and present danger to the physical safety of the employee, another employee or to a member of the public.”

The law thus protects hundreds of thousands of people with jobs that do not threaten public safety--they cannot be tested even if they show up at work clearly under the influence. (To be sure, employers still would have other recourse--like dismissal.)

Concession to Firms

Job applicants are not protected by the law--a major concession to private employers. In a quid pro quo , companies such as Chevron USA did not fight the measure, according to a Chevron official.

Because the law permits testing if unions have agreed to such screening in collective bargaining, one result is that members of the 49ers can be tested because the National Football League Players Assn. has consented to some forms of drug testing--but members of the Giants cannot be tested because the Major League Baseball Players Assn. has not agreed to drug screening.

The section of the law permitting testing under union contract was added at the request of the AFL-CIO and the Municipal Railway, the city’s public transportation agency, which had won an agreement with its union to test any of the 2,000 drivers who appeared to be under the influence while on the job, according to George Newkirk, the railway’s labor relations manager.

Maher’s measure began as an effort to prohibit employers from interfering with employees’ private lives and the early drafts of the legislation had called for a blanket ban on all testing.

Maher, generally considered a moderate board member, got the idea after hearing that IBM tried to fire a worker in San Francisco who was dating someone from a competing firm. He expanded the “right-to-date” ordinance to curb drug testing after Southern Pacific last summer demanded that scores of employees submit to random drug tests.

But according to Cliff M. Palefsky, who helped write the ordinance and had sought such a blanket ban, the final product contained “too many exceptions.” Still, the labor lawyer credited Maher with having done “a masterful job.”

“All legislation is an attempt to balance equities,” Maher explained, noting that he had to amend the ordinance to win support.

Mayor Opposed

Among the few politicians who opposed the measure was Mayor Dianne Feinstein. She said the law “sends out the wrong message about the workplace in San Francisco” at a time of rising concern about drug use throughout the country.

As a result of the law, added a spokesman for Southern Pacific, “San Francisco is not as safe a place to work.” The San Francisco-based Southern Pacific is among the first and most aggressive corporations to pursue drug testing, and it still tests employees suspected of using drugs--unless they work in San Francisco.

Feinstein allowed Maher’s measure to become law without her signature--because she did not think she could muster enough votes on the Board of Supervisors to sustain a veto. The board had passed the law on a 9-1 vote.

But amendments and all, San Francisco remains the one municipality that has officially scoffed at America’s push to implement widespread employee drug screening. And that comes as no surprise to many in this city with a long tradition of tolerance and liberalism. Even among many managers, opposition to large-scale drug testing runs deep.

“I’m certainly not going to be a part of the return of McCarthyism, looking under every rock (for drug users),” said Ramon Cortines, superintendent of the San Francisco Unified School District.

City Characterized

“Keep in mind that San Francisco is an extraordinarily liberal and humanistic city,” added John Jacobs, executive director of the Chamber of Commerce, which did not oppose the measure. “That translates into a concern about invasion of privacy.

Such concern runs deep in this community--as Dr. Tom Peters of the San Francisco Public Health Department discovered last year.

The city had begun testing bus drivers who were suspected of being under the influence of drugs, and one day a supervisor took a driver to the health department for testing.

Department personnel simply refused to cooperate, arguing that such tests are unreliable and intrusive--and would have forced them to participate in police work.

“We had an out-and-out revolt,” Peters recalled. “They did not want to naively participate in ruining someone’s personal and professional life.”

A three-hour standoff ensued.

Finally, a compromise was struck: The driver provided a urine sample, but it was placed directly in a health department freezer, where it stayed for three weeks. During that time, officials refined the safeguards surrounding drug screening programs, Peters said.

The results of the driver’s urinalysis is regarded as confidential.

Lawyers, public officials, union leaders and corporate executives say the full effect of San Francisco’s law may not yet be apparent because only now are an increasing number of San Francisco businesses turning to drug screening.

At the time that Maher’s measure was being debated, recalled Robert Taggart, a spokesman for Southern Pacific Co., which led the opposition, “a majority of corporations did not have programs, and they did not recognize the seriousness of the problem.”

The law provides for no criminal penalties, but the city can bring a civil suit against violators.

So far, there have been no lawsuits filed by employees challenging a drug test--or by an employer challenging the law. But that may change.

At Pacific Bell, supervisors ask workers to provide a urine sample for analysis if they appear to be under the influence--even though the ordinance specifically says employers cannot “request” workers to submit to testing.

According to Pacific Bell spokesman Richard Fitzmaurice, an employee has the prerogative of refusing to provide a urine sample, without retribution. But that employee can be fired if he continues to shows up at work seemingly on drugs.

Possible Violation

And at least one union--the Amalgamated Transit Workers local for Greyhound bus drivers in San Francisco--says that the law perhaps is being violated.

Local President Lee Peschel said Greyhound is continuing to require its 90 San Francisco-based drivers to undergo urinalysis as part of a routine physical every two years. Peschel also said the firm requires a worker to undergo drug screening if he has been off the job for more than 30 days.

But a Greyhound spokesman, Herb Doherty, said his company’s policy does not “break the ordinance, or I’m certain we would have heard about it by now.”

No driver has chosen to contest policy yet, Peschel said. “I’m waiting to see if it’s going to happen.”

Meanwhile, some business leaders are considering challenging the law.

Patrick Price, president of San Francisco Federal Savings & Loan, said he will not hesitate to order an employee tested if he suspects drug use--regardless of the law.

“The decision (to test an employee) will be made based on what we think is right, not what some politician has cranked into the law,” he said.

“These guys are criminals that the guy (Maher) is trying to protect,” Price said. “There is plenty of protection already under the Constitution.”