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

January 31, 1988|ERIC SCHINE | Times Staff Writer

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.

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