Worker Rights Vs. Public Risk : Appeals Court to Hear Challenge to Drug Testing at San Onofre Nuclear Plant

A worker at a sensitive post at Southern California Edison Co.’s San Onofre nuclear power plant was randomly selected by management to undergo a drug - screening test, according to courtroom testimony.

He had no previous record of drug use, nor did the company have any reason to suspect that he was using drugs. His urine sample was rejected by the company because it appeared to have been diluted with water. He was denied security clearance and reassigned to another job.

The worker was retested 16 times within a month, sometimes several times a day. He was told that his urine “can’t possibly be human, that only dead people have urine like this.” Finally, he passed the test, and his security clearance was restored.

It’s happening all over America. More and more corporations are turning to drug testing in an effort to ensure a safe work place.

But many workers, like the San Onofre employee, feel their right to privacy has been too readily sacrificed to an intrusive screening system with unproven benefits.

In what lawyers are calling a potential landmark case, San Onofre workers have sued Southern California Edison Co. Their suit contends that the random tests, administered after 24 hours’ notice, violates workers’ right to privacy under the California Constitution.

The company counters that the hazardous nature of nuclear power plant operations and the potential for catastrophe should anything go awry transcend an abstract constitutional issue. Moreover, Edison argues, the tests are administered fairly and carefully, and advanced technology makes the testing program virtually error free.

Appeals Court to Hear Case

The two sides will argue procedural aspects of the case Monday in a federal appellate court in Pasadena.

In February, 1987, San Onofre workers obtained an injunction preventing Edison from administering the tests after only 24 hours’ notice. Although the company has appealed the order, it is now giving workers about 30 days’ notice before testing.

The potential conflict between workers’ civil liberties and the public’s right to safety has become a hot legal issue in recent years.

Random drug testing of air traffic control workers has been upheld in federal court. In other areas of public employment, including police work and firefighting, random drug testing has been both upheld and struck down.

Damages Awarded

In one case last year, a jury awarded an employee of Southern Pacific Transportation Corp. $485,000 in damages resulting from a dispute over random drug-testing practices.

But the San Onofre suit represents the first case in which a provision of the California Constitution protecting the privacy rights of non-government employees has been pitted against the public safety issue in a federal appeals court, said Victor Schachter, a San Francisco attorney.

Schachter and several other experts addressed the legal, technical and ethical issues raised by drug testing at a two-day conference in Newport Beach that ended Friday. The conference, sponsored by two leading companies in the growing drug-testing industry, attracted about 100 lawyers and corporate officials.

“The basic issue is whether or not there is a compelling reason to justify an intrusion on individual privacy,” Schachter said. “When you are talking about a nuclear power facility with potential for highly hazardous conditions and safety-sensitive jobs, I think you are dealing with one of those limited circumstances where random testing is certainly appropriate to ensure the safety of the work place.”

ACLU Position

That view is contested by civil liberties experts. “In this country, you don’t sweep in the innocent to catch the guilty,” said Edward Chen, a lawyer with the American Civil Liberties Union.

“The police can’t go out and grab anybody and ransack their house without a warrant,” Chen said. “And these are the basic principles, presumption of innocence and reasonable cause, that are being violated in random drug-testing programs like the one at San Onofre. Even in high-risk industries, there are preferable alternatives to random testing.”

Glenn Rothner, an attorney who is representing the San Onofre workers, agreed that the right to privacy should take precedence over the public safety issue.

“My concern is not to protect those workers using drugs in their private lives,” said Rothner, a partner with the Los Angeles law firm of Reich, Adell & Crost. “The important issue is the intrusion on the rights and privacy of those who don’t use drugs and never will.”

2 Complaints Voiced

The union members contesting the San Onofre tests, which are administered to about 2,000 “red-badged” employees with access to high-security areas within the power plant, cite two principal complaints.

They contend that the tests are not based on “individualized suspicion for cause” and that management failed to negotiate with them on the terms of the testing procedure. Beyond that, they question whether a drug test can accurately pinpoint substance abuse.

“We are all for safety. We do not take a casual view of this because, should there be a safety problem, we are the first to be affected,” said Carl Wood, a San Onofre electrician who took a leave of absence to work full time for the Utility Workers Union of America, the union representing San Onofre workers.

“I don’t want to be working up on a live wire next to some guy stoned on dope,” Wood said. “But at the same time, I don’t want my own livelihood and career put in jeopardy by a test that may or may not be valid.”

A Security Measure

Edison officials disagree. “The company sees drug testing as a security measure that is required for safe operation of the facility,” said Wesley Moody, deputy site manager at the nuclear plant. “This isn’t something with which we need to go to the bargaining table.”

Under the drug test rules established by the company, a worker whose urine tests positive is denied his red badge, which allows access to sensitive areas of the company. He is also given frequent follow-up tests and psychological examinations.

Should a San Onofre worker test positive a second time, he is suspended for 30 days without pay and must attend a mandatory rehabilitation program. Upon testing positive a third time, a worker will be fired, Moody said.

“The test is best described as one part of an overall security program controlling access to a restricted area,” said Mark Mikulka, a staff attorney for Southern California Edison. “The idea is not all that different from metal detectors at the airport.”

Testing Rules Changed

When the program was initiated in 1984, all red-badged workers were tested annually on a fairly predictable schedule. The 24-hour notice was introduced late in 1986 to tighten the testing procedure and deter drug users from applying for work at the company, Moody said.

After administering the test 23,000 times, Southern California Edison has fired approximately 30 workers who each tested positive three successive times, Moody said. Several others who tested positive at least once either resigned or were transferred to other Edison operations.

“We view ourselves as being in a position of public trust,” Moody said. “The public has the right to expect us to run the plant in a safe manner. And to do that, we must ascertain that the people here are free of any impairment.”

Critics argue that San Onofre’s testing program is a quick-fix response to a serious problem and doesn’t really address the question of on-the-job impairment.

Impairment Versus Use

What’s needed, they say, is more awareness on the part of supervisors that a worker may have a drug problem.

“My concern is not with the guy who smokes a joint on Saturday night, but with the one who does a line of coke on the way to work on Monday morning and is misreading dials,” said Ted Schramm, president of Behavior Research Inc., a firm that assists companies in setting up drug-testing programs.

“Southern California Edison really didn’t need to play cops and robbers, because that won’t solve the problem,” Schramm said.

According to Rothner, “The most that random drug testing can accomplish is to confirm or corroborate that impairment may have been the result of recent drug use. It will not tell you when the drug was consumed, how much was consumed or the current impairment level, if any, of the worker.”

Subtle Impairment

Still, experts who side with the industry stress that random drug testing is essential to ferret out drug users who show no apparent signs of impairment.

“A blatantly stoned-out worker, from alcohol or other drugs, is easy to identify,” said Peter Bensinger, a former director of the U.S. Drug Enforcement Agency and a leading proponent of the kind of testing program used by San Onofre.

“But there is another level of impairment, which includes depression, anxiety and paranoia, that is not readily apparent by mere observation,” Bensinger said.

Bensinger has testified on behalf of Edison in the San Onofre case. He is president of Bensinger, DuPont & Associates, which advises many corporations on their drug-testing policies.

Pilots Studied

In a key portion of his testimony in the San Onofre case, Bensinger cited a 1986 Stanford University study that tested the effects of marijuana on airline pilots. An hour after smoking pot, 10 pilots were asked to make simulated landings. They missed the landing by an average of 32 feet, Bensinger said. After four hours, they missed the landing by 29 feet, and after 24 hours, they missed by 24 feet.

When asked how they felt, all of the pilots said they felt fine, Bensinger said. “They were completely incorrect in their own self-assessment,” he said. “While you can smell alcohol, the effects of marijuana and cocaine are far more subtle. A supervisor just can’t tell who’s on drugs.”

But Ernest Noble, a biological psychiatrist and UCLA research professor who testified on behalf of the San Onofre workers, counters that the data in the pilot study was “extremely fallacious.” Noble maintains, among other things, that standard scientific controls, such as using placebos to ensure blind testing, were not used in the study.

“The purpose of the San Onofre drug-testing program, in my view, is to scare the hell out of both the workers and the public,” Noble said.

TEN MOST FREQUENTLY SCREENED DRUGS Marijuana Cocaine Amphetamines Opiates Barbiturates Phenecyclidine (PCP) Methaqualone (Qualuude) Benzodiazepine (Valium) Propoxyphine (Darvon) Alcohol Source: Martha Harkey, research pharmacologist, UC Davis School of Medicine.

With the exception of marijuana, all of the listed substances remain in the body at detectable levels for three to five days. However, inactive waste products of marijuana may remain in the body for up to two weeks, and in some cases, for as long as several months.

Marijuana accounts for 80% of all positive results, while cocaine accounts for 10% to 15% of all positive results.