Drug Testing of Rail Workers in Mishaps Barred

Federal regulations requiring drug and alcohol testing for railroad workers after major accidents, adopted in response to a wave of drug-related accidents on the nation’s railways, were declared unconstitutional Thursday by a federal appeals court.

Backing a challenge from a coalition of railroad worker unions, the U.S. 9th Circuit Court of Appeals struck down Federal Railroad Administration regulations requiring all crew members of a train involved in a serious accident to submit immediate blood and urine samples for testing.

The court, breaking step with other appellate courts on the issue, also rejected regulations authorizing railroads to require their employees to submit to breath or urine tests when a supervisor has reason to suspect drug use and, in two related cases, held that private railroad companies must negotiate with their employees before adopting drug testing or detection programs.

“Accidents, incidents or rule violations, by themselves, do not create reasonable grounds for suspecting that tests will demonstrate alcohol or drug impairment in any one railroad employee, much less an entire train crew,” Judge Thomas Tang wrote for the court majority in a 2-1 opinion.

Federal Railroad Administrator John Riley predicted that the decision, if not reversed, “will effectively end drug testing in the railroad industry.” The 2-year-old regulations govern an estimated 200,000 railway workers across the nation.

The decision, released simultaneously in San Francisco and Pasadena, is believed to be the first appellate court ruling in the country to overturn drug testing in the workplace. While a variety of lower courts have rejected random drug testing programs, the appeals courts have until now endorsed a variety of drug-testing requirements for occupations ranging from U.S. Customs workers to prison guards, bus drivers and horse racing jockeys.

It will now be up to the U.S. Supreme Court to resolve the conflicting appeals court rulings in an area of law that has, with Thursday’s decision, become increasingly murky.

In many of the past cases, courts have held that public safety interests outweigh the intrusiveness of a drug test, or that some employees, like jockeys, are personally subject to government regulation; in those cases, drug testing can be compared to random government inspections of regulated industries, courts have ruled.

Judge Arthur A. Alarcon, in a dissent, argued that the same balancing factors should apply to the railroad industry, which suffered 791 fatalities caused by railroad employees between 1975 and 1984, at least 37 of them a result of alcohol or drug use by employees.

The National Transportation Safety Board last month blamed a Conrail engineer’s impairment from drugs, in part, for the collision in Maryland of an Amtrak passenger train and a string of freight locomotives in January, 1987, that left 16 people dead.

According to the Railroad Administration, the percentage of railroad employees who failed drug tests after post-accident testing was up by more than 30% last year.

“As recent history attests, locomotives in the hands of drug- or alcohol-impaired employees are the substantial equivalents of time bombs, endangering the lives of thousands,” Judge Alarcon said.

But Judge Tang, joined by Judge Harry Pregerson, held that the Fourth Amendment’s protections against unreasonable searches require that railroad employers have reason to suspect a particular employee of drug or alcohol use before testing can be justified.

Urine tests, which often cannot distinguish between present intoxication and past drug use, cannot reliably determine whether drugs were a factor in a train accident anyway, the majority said.

An American Civil Liberties Union attorney who specializes in drug testing litigation, Edward Chen, called the decision “extremely significant,” in part because it may weaken the federal government’s case for testing hundreds of thousands of federal employees in sensitive jobs.

Riley, head of the Railroad Administration, which promulgated the regulations, said the decision “denies federal safety authorities even the right to perform testing after an accident to determine whether drug use was involved, unless we have particular evidence that one or more crew members was impaired. Such evidence is rarely, if ever, available.”

Riley said the agency has been lobbying Congress for 13 months to grant the agency regulatory authority over railroad employees, not just the railroads themselves. Legislation to that effect is about to go to a congressional conference committee, he said.

“In an era when the great majority of train accident fatalities are occurring in human factor accidents, we cannot have a federal safety authority with jurisdiction over everyone but the people who run the trains,” he said.

Federal officials said the decision does not appear to order an immediate halt to drug testing in the railroad industry. Should the court order a stop to testing, Riley said, the government would likely ask the Supreme Court for a stay pending a full appeal.

Union officials applauded the decision, saying it reaffirms their position that workers’ rights are violated when they can be tested in the workplace without reasonable suspicion that they have used drugs or alcohol.

“Rail workers, more than anyone else, are aware of the need to improve overall rail safety,” said James J. Kennedy, executive secretary-treasurer of the Railway Labor Executives Assn.