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BUSINESS PULSE: A SPECIAL REPORT : DRUG TESTING : More Companies Instituting Drug-Testing Programs

May 22, 1990|LESLIE BERKMAN | TIMES STAFF WRITER

By his experience as a clerk in Municipal Court in Fullerton, Scott Matthew has become convinced that employers should test their work force for illegal drug use.

"I think that if the drug problem were eliminated, that would clear about 75% of the cases off the dockets," said the Yorba Linda resident, who has watched many trials prompted by illegal drug use in his 13 years as a court clerk.

Five years ago, Matthew said he probably wouldn't have championed compulsory drug testing. But now, he said, "I have come to the realization that it would probably help the people with the problem."

Matthews shares the view of the majority of local workers who appear eager to stamp out drugs, starting in the workplace. According to The Times Orange County Poll, 76% of those surveyed support drug and alcohol testing by employers. And 22% perceived drug and alcohol abuse as "somewhat" of a problem in their workplace.

Not surprisingly, Orange County companies, like others throughout Southern California, are increasingly instituting drug-testing programs, especially for job applicants.

According to surveys by the Merchants and Manufacturers Assn. of Southern California, the proportion of firms in the region that do pre-employment drug testing more than doubled, from 20% in 1987 to 48%, last year. In the same two-year period, the percentage of firms that administer drug tests to current employees has burgeoned from 20% to 41%.

"I think we are becoming less and less tolerant of drugged out people in the workplace," said Larry Bell, manager of the Santa Ana branch of the Merchants and Manufacturers Assn.

Employers are motivated by a desire to protect productivity, which can be undermined by absenteeism and poor job performance associated with drug and alcohol dependency. They also are concerned about curbing the runaway costs of workers compensation and medical insurance.

Employers share with employees an interest in enhancing on-the-job safety by reducing the risk of accidents caused by workers under the influence of drugs or alcohol.

While there may be good reasons for substance abuse testing, there are important legal issues revolving around an individual's right to privacy.

Casey Hawes, a labor attorney in the Costa Mesa office of Latham & Watkins, said that California is more stringent than other states in scrutinizing the drug-testing practices of employers because "the right to privacy is written into the California Constitution."

He said that many California employers have been advised they could legally require job applicants to be tested for drugs, usually through urine samples, as part of their pre-employment physical examinations. That position was confirmed in March by the state Supreme Court, which let stand a state Court of Appeal decision that mandatory urinalysis to detect drug use among job-seekers represented only a limited intrusion on the right to privacy and did not violate the state Constitution.

But in another decision, the same Court of Appeal in San Francisco in February upheld a $485,042 damage award to a railroad employee who was fired for refusing to submit to a drug test. This decision has strengthened the belief of many employers and employees that random drug testing of workers probably is illegal, especially if the person is not in a safety-sensitive job.

Companies that test employees usually do so only "for cause," such as a bad accident in which drug use is suspected to be a contributing factor or as part of a scheduled recertification examination for bus drivers and others responsible for the safety of others.

Ramona Ripston, executive director of the American Civil Liberties Union of Southern California, said the civil rights group believes pre-employment screening and random testing of employees is unconstitutional. She said an employee should be subjected to a drug test only if his job performance becomes erratic and drugs seem to be the problem.

Some unions agree and want a say in how drug tests are administered. Mary Yunt, secretary-treasurer of the AFL-CIO Orange County Central Labor Council, said unions want to help spell out the nature and criteria for workplace drug testing in their contracts.

Bill Perry, secretary-treasurer of the Orange County District Council of Carpenters, said there is considerable resistance to drug testing within that organization. Much of the increased testing activity is traced to the passage last year of the Drug Free Workplace Act, which requires firms with two or more employees and doing more than $25,000 in business with the federal government to have substance abuse programs.

While this legislation did not require firms to test employees for drugs, many employers took it as a signal to start. Subsequently the U.S. Department of Transportation set specific testing requirements for mass transit workers and interstate truckers.

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