The Road Gets Rockier for the RTD : Judge’s Order Limits Use of Discretionary Drug-Testing Policy

A Los Angeles Superior Court judge Monday ordered the Southern California Rapid Transit District to halt discretionary drug testing of employees simply because they display aberrant behavior or are habitually late for work, undercutting a key provision of the district’s tough new anti-drug policy.

Judge Ricardo A. Torres’ preliminary injunction leaves intact, however, provisions that require employees to submit urine samples when they are involved in serious accidents or physical altercations.

“In the interest of our 1.5 million riders each day, I think we have a right to incident-based testing, and we feel the judge upheld that right,” said Roger Kundert, the district’s director of employee relations. “Our major goal today, as it was yesterday, is to have a drug-free environment for our ridership, and we’re going to do it.”

Union attorneys called the judge’s ruling a victory for RTD employees because it, for the most part, prevents drug testing except in instances in which there is reasonable suspicion that an employee has used drugs.

“Any time you give the supervisor a right to test someone on the thought that he or she is under the influence of drugs, it is intimidation, to say the least,” said Earl Clark, chairman of the bus drivers union.

“We endorse a drug-free environment. We do not endorse anything that takes away the constitutional rights of our members,” he said.

Attorneys for the mechanics and drivers unions, who filed suit challenging the policy when it took effect Dec. 15, unsuccessfully sought to strike down provisions that require drug tests of any driver who has been involved in an accident with more than $1,000 damage or a physical altercation with another employee.

In some cases, said mechanics union attorney Joseph Freitas Jr., supervisors have required drug tests for drivers who are rear-ended while stopped in a loading zone or involved in other accidents in which they are not at fault, simply because of the district’s policy requiring testing when there has been an accident involving hospitalization or damage of $1,000 or more.

“We had a case of a woman who slipped and fell on the bus, and they wanted to test the driver because she complained of injuries and had to be taken to the hospital,” said Laurence Drasin, lawyer for the drivers union.

Such so-called “incident-based” testing has been generally upheld by the courts, however, and Judge Torres refused to include most of those portions of the policy in his preliminary injunction.

Torres did preclude the district from using absenteeism or tardiness as an “incident” requiring drug testing, despite the RTD’s claims that such problems can be linked to drug abuse.

Torres ruled that such factors “don’t bear a reasonable relationship” to a potential drug problem. “There are a lot of other reasons” employees might be late or absent, he said.

Moreover, Torres included most discretionary drug testing in his preliminary injunction, blocking supervisors’ right to order drug tests for employees simply because they have been involved in arguments or display some form of “aberrant behavior”

RTD attorney Richard A. Katzman said the district will seek a clarification of Torres’ ruling to ensure that an employee who is clearly intoxicated or demonstrates other reasonable probability of drug use can be tested.

All portions of the drug-testing policy, except the absenteeism provisions, have been in effect since September, 1985. Of 3,400 drivers tested between then and September of 1986, 10.7% showed evidence of drug use.

Dr. Sidney Cohen, an expert in psychopharmacology, said in a report filed with the court that there is evidence the drug-testing program has acted as a deterrent to drug use among RTD employees, noting that the incidence of positive tests has dropped from 13.7% when the program was initiated to 8.4% in the last quarter of 1986.