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- LAW, Page 62A Boost for Drug Testing
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- The Supreme Court upholds screening employees in the lab
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- The wreck was the bloodiest in Amtrak's history. On Jan. 4,
- 1987, a string of Conrail locomotives rolled past warning
- signals near Baltimore and collided with a high-speed passenger
- train carrying more than 600 people. The fiery crash killed 16
- and injured 176. Public dismay turned to anger when it was
- revealed that engineer Ricky Gates had been smoking marijuana
- at the controls of the Conrail train. Gates admitted the drug
- use and pleaded guilty to manslaughter after a urine test,
- required by the Government of railroad employees involved in
- serious accidents, revealed traces of marijuana. The tragedy
- fueled public support for the Government's expanding program to
- test employees for drugs. But the proliferation of testing among
- both public and private workers has spawned legal challenges
- from civil libertarians and labor leaders who see the antidrug
- campaign as a dangerous invasion of privacy.
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- Last week the U.S. Supreme Court, in its first rulings on
- the drug-testing issue, upheld, by a vote of 7 to 2, the
- constitutionality of the Government regulations that require
- railroad crews involved in accidents to submit to prompt
- urinalysis and blood tests. The Justices also upheld, 5 to 4,
- urine tests for U.S. Customs Service employees seeking
- drug-enforcement posts. Said Attorney General Dick Thornburgh:
- "The court recognized that the Government can, and indeed
- should, take all necessary and reasonable steps to prevent drug
- use by employees in sensitive positions."
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- The decisions could help the Bush Administration's drive to
- curb drugs on the job. A 1986 Executive Order by former
- President Reagan authorizes drug testing throughout the Federal
- Government. So far, more than 50 agencies, including the
- Agriculture and Interior Departments, have moved to start up
- programs. The random, unscheduled urine tests that some agencies
- use have drawn the fiercest opposition from staff members. No
- fewer than 14 challenges are winding their way through appellate
- courts.
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- Private companies have enthusiastically followed the
- federal lead in testing. The Bureau of Labor Statistics reports
- that 43% of the nation's largest firms, including IBM, AT&T and
- 3M, have implemented drug-screening programs for job
- applicants, employees or both. Last week's high-court rulings
- have no direct legal bearing on most private companies, but the
- decisions are expected to encourage industry to increase
- testing.
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- Opponents of Government screening argue that it is an
- "unreasonable search," barred by the Fourth Amendment. They
- contend that employees should be tested only if there is good
- reason to suspect drug use. But Justice Anthony Kennedy, author
- of both decisions, concluded that in the cases of rail and
- Customs employees, the Government need not have "individualized
- suspicion." Train workers, he explained, "discharge duties
- fraught with . . . risks of injury," and "employees involved in
- drug interdiction reasonably should expect effective inquiry
- into their fitness and probity." Justice Thurgood Marshall
- dissented bluntly: "Compelling a person to produce a urine
- sample on demand . . . intrudes deeply on privacy and bodily
- integrity." Normally conservative Justice Antonin Scalia, who
- joined his more liberal colleagues in dissenting from the
- Customs decision, was equally sharp: "The Customs Service rules
- are a kind of immolation of privacy and human dignity in
- symbolic opposition to drug use."
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- Some legal scholars worried about the court's direction in
- future cases. "Will it be limited to safety-sensitive positions
- or broadened to include any public employee who is a role
- model?" asked University of Michigan Law Professor Yale Kamisar.
- Other experts doubted that the court would uphold random drug
- tests for a broad spectrum of Government employees. "The pattern
- of votes on the court suggests that as you get closer to
- mainstream workers, the number of dissenters picks up," observed
- Columbia University Law Professor Gerard Lynch.
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- Still, testing is likely to spread, and many workers are,
- to say the least, uncomfortable with the idea. Peter Appelt, a
- Government employee, had to walk through an office full of
- people with a little cup in hand to get a promotion. "It was
- quite embarrassing," he says. "A nurse followed me into the
- men's room and stood outside the stall." He passed the test, and
- is now a senior inspector for the Customs Service at New York
- City's Kennedy International Airport.
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