Decisions May Spur Expanded Drug Testing

Tuesday’s Supreme Court decisions on drug testing will encourage California employers to expand their testing programs, particularly to determine whether drugs played a role in causing an accident, a lawyer who has represented many California companies in drug-testing litigation believes.

Additionally, the decisions may encourage private-sector employers to expand their pre-employment testing programs, even though neither of the two decisions dealt directly with that issue, said Victor Schachter, a San Francisco lawyer who wrote a friend-of-the-court brief in one of the cases on behalf of the California Employment Law Council.

‘Strong Message’

The decisions “send a very strong message” that the Supreme Court believes safety issues are going to be weighed “very heavily” when employees or their unions raise objections on grounds that their privacy rights have been violated, Schachter said.

But other lawyers who have represented employees in drug-testing litigation say that the decisions are very narrowly drawn and are unlikely to have much effect on workers whose jobs do not involve public safety or security issues.

“I don’t think the decisions have as wide a ramification as one might initially think,” said Ed Chen, staff counsel for the American Civil Liberties Union of Northern California.

“Both cases involve very limited types of testing under extraordinary circumstances--in one testing rail crews after accidents and the other involving customs employees in law enforcement. In each case, the court said there was a compelling government interest to justify the invasion of privacy,” Chen added.

Employees in non-sensitive jobs in California, such as court clerks, have nothing to fear from the opinion, said Glen Rothner, a Los Angeles labor lawyer who represents unions. However, he added, “If you’re a police officer who carries a firearm, it’s going to be a difficult battle” to resist drug testing.

The effect on some occupations--such as firefighters and truck drivers hauling loads of toxics--is not immediately clear, Rothner said. “The decisions Tuesday placed considerable emphasis on the unique work environments and job missions” of railway employees and customs agents dealing with drugs.

Constitutions Differ

Rothner also said that the decisions by no means resolve all drug-testing issues for Californians because the U.S. Constitution does not have a specific privacy provision, as the California Constitution does. “It’s still possible for the California Supreme Court” to limit drug testing more broadly in some circumstances than the U.S. Supreme Court did Tuesday, he said.

On the other hand, Jay Roth, who also represents unions in drug-testing cases, said he is concerned that the decisions might encourage companies who do business with the federal government to instigate random testing programs in an attempt to comply with new federal regulations calling on government contractors to maintain a “drug-free” workplace.

Gordon Kirby, director of employee relations for the California Trucking Assn., said that he thinks the decision might have a significant effect on a case already pending in California. Some employees of large trucking companies and owner-operators have challenged various aspects of regulations promulgated by the U.S. Department of Transportation last year. In January, U.S. District Judge Marilyn H. Patel in San Francisco enjoined parts of the program, including all random testing and some post-accident testing.

Likely to Be Upheld

Kirby said that Tuesday’s ruling upholding testing of all employees involved in a rail accident, regardless of whether there is individual suspicion of drug use, makes it likely that the Transportation Department’s post-accident testing regulations ultimately will be upheld.

“Like Atty. Gen. Richard Thornburgh, we are heartened by the decisions,” said Cmdr. William Booth, chief spokesman for the Los Angeles Police Department. He said that the rulings will have no immediate effect on the LAPD’s testing program but that he hopes it is a sign that the high court ultimately will approve random testing for “those who by the very nature of their jobs hold the lives of others in their hands.”

The Orange County Transit District, which has had a drug-testing policy in effect since the early 1980s, has no plans to change, spokeswoman Claudia Keith said Tuesday.

“We have pre-employment drug testing and that’s for all (potential) employees,” Keith said, adding that drivers may be subject to drug testing when they have been involved in an accident on duty.

“Generally speaking, if a supervisor feels the circumstances of the accident warrants it or if there’s any type of injury, the employee will be drug tested.”

“We don’t do any type of random drug testing at all,” she said. Keith added that an employee may also be drug tested if a supervisor believes that the person is under the influence, but she said it is “very rare that it happens at all.”

Impact on Pilots

John Mazur, a spokesman for the Air Line Pilots Assn., said that he thinks the decision will not have a major impact in California or nationally on the 41,000 pilots flying for the major carriers.

“We have never said that testing after an airline accident was not appropriate,” Mazur said. “That’s one of four circumstances where we see a legitimate use of drug testing.”

Two major cases on drug testing are pending before California appeals courts. One involves the challenge of two Stanford athletes to a drug-testing program imposed by the National Collegiate Athletic Assn.

The other involves a challenge to a pre-employment testing program by Matthew Bender & Co., a legal publishing firm that is a subsidiary of Times Mirror Co. That program has been challenged by three prospective employees and the American Civil Liberties Union.