Justices Reject Forced Drug Tests of Workers : Narcotics: Justices let stand appellate rulings that said employees cannot be made to take random tests.

TIMES STAFF WRITER

In a severe blow to drug testing in the workplace, the state Supreme Court on Thursday rejected attempts by employers to force workers to submit to random tests to detect the use of illicit substances.

The justices, in a brief order, let stand two appeals-court rulings that declared the state constitutional right to privacy protects employees from being dismissed solely for refusing to submit to random drug tests.

In both instances, the lower court held that the state privacy guarantee applies not only to governmental actions but also to private employers.

In one case, a state Court of Appeal in San Francisco held that a worker in a non-safety-related job could not be required to take such a test and upheld a $485,042 damage award to a computer programmer who refused to provide a company-ordered urine sample.

In the other case, a state Court of Appeal in San Bernardino allowed a chemical firm employee to sue for wrongful dismissal after he declined to submit to an eye-pupil reaction test to determine whether he was under the influence of drugs. Neither ruling applied to job applicants.

The high court action, taken without dissent, makes both appellate rulings binding on trial courts statewide. Specialists in employment law said that as a result, employers, in order to have a legally valid program, will have to provide more specific reasons for testing--such as an employee's involvement in an accident or work in a safety- or security-related job. One attorney said the action sounded the "death knell" for random drug tests.

The justices' refusal to hear employer challenges to the appellate rulings came as something of a surprise. The court, now led by a moderately conservative majority, has proved much more receptive to business concerns than its liberal-dominated predecessor under former Chief Justice Rose Elizabeth Bird.

Moreover, recent surveys have shown a steady growth in mandatory drug testing imposed on both employees and job applicants. A study released last week showed that 12.1% of a sampling of current employees in California tested positive for drug use. In sharp contrast, only 3.5% of the workers in the 49 other states tested positive.

Thursday's action marked the second time the justices have sidestepped an opportunity to formally review and issue their own opinion on the volatile drug-testing issue. Last March, the high court left intact another appellate decision allowing drug and alcohol tests of job applicants, who, the appeals panel found, have less reasonable expectation of privacy than regular employees.

The high court's order Thursday was hailed as being of "monumental importance" by Mark S. Rudy of Oakland, attorney for Barbara A. Luck, the programmer who successfully pursued a wrongful-termination suit against the Southern Pacific Transportation Co.

"This means that an employer cannot use an employee's poor performance or mere suspicion of drug use as grounds for testing," Rudy said. "There will have to be some 'compelling interest' for the employer--a very high legal standard--such as an accident, a safety-related job or probable cause to believe there is drug use."

Henry F. Telfeian of San Francisco, a lawyer for Southern Pacific, said the action had provided the "the death knell" for drug-testing programs in California.

"Employers are going to be extremely reluctant to institute drug testing except where they have probable cause or consent from a worker--and even then, such programs may be of doubtful validity," Telfeian said. "It's a bad decision by the Supreme Court not to take up this issue. The court owed it to employers to consider this matter."

Richard Bradley, vice president of the 4,000-member Merchants and Manufacturers Assn., said it appeared that employers still could impose carefully tailored testing programs. But nonetheless, he said, he was disappointed by the high court's refusal to review the issue.

"This country is having a real problem determining policy on illegal drugs," Bradley said. "If we want to stop people from using drugs, it seems logical to do so in the employment situation. Most employers are not trying to be punitive. If an employee has a drug problem, they want him to get into a treatment program."

In the Luck case, the appellate court said that without a proven and direct link to safety, an employer is barred by the state constitutional right to privacy from requiring employees to submit to drug tests. The company, the panel said, had not shown a "compelling interest" that would justify an intrusion on privacy rights.

In its appeal to the high court, Southern Pacific contended that drug testing was a legally valid and successful device to improve workplace safety and efficiency. The company cited a recent study estimating that 25% of the work force aged 20 to 40 are under the influence of illegal drugs while on the job.

In the second case before the court Thursday, James Semore, a production worker for Kerr-McGee Chemical Corp., in Trona, Calif., was fired after refusing a pupil-reaction test.

A Superior Court judge in San Bernardino County dismissed the suit but a state Court of Appeal reinstated it last February. The appellate court said that when a private employee is dismissed for rejecting a random test, he may sue the employer for violating his right to privacy.

The appeals court said that firing an employee for refusing an intrusion on privacy rights violates the "public policy." Such a finding, which was not made by the panel in the Luck case, could open the way for large damage awards against employers.

In other action Thursday, the justices:

Unanimously reversed the conviction and death sentence of Duane Holloway, now 28, for the murders of two Sacramento sisters, Diane Pencin and Debra Cimmino, in 1983. Holloway was entitled to a retrial, the court said, because a trial juror, violating the judge's admonition, had read news accounts of the case. The story at issue indicated Holloway had been on parole after attacking another woman with a hammer. The judge had denied use of the previous conviction as evidence because of its potentially prejudicial effect on jurors.

Agreed to review an appellate court ruling that the state Department of Motor Vehicles had misapplied tax laws and must pay refunds to 17 million used-car owners. Officials say the decision, unless overturned, could cost the state $1.4 billion.

Said they would decide whether the state Fair Employment and Housing Commission has authority to award damages for emotional distress in cases involving racial discrimination. At issue is a Court of Appeal ruling that struck down a commission award of $50,000 to a black Contra Costa County man who contended he was denied an apartment because of his race.

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