Drug Testing Dead in California

SAN FRANCISCO (UPI) -- Corporate attempts to institute random drug testing of employees in California may be all but dead as a result of two separate orders the California Supreme Court issued Thursday.

The high court left intact two state appeal court decisions in favor of workers who sued their employers because they were fired for refusing to submit to random drug tests.

The court did not elaborate on its decision but issued a one-line order in each case refusing to hear company challenges of the lower court actions.

"My impression, based on those two cases, is that random testing is pretty much dead in California," said Cliff Palefsky, an attorney who wrote the San Francisco ordinance banning random testing, the first such law in the nation.

Both employees -- a computer programmer for Southern Pacific Transportation Co. in San Francisco and an employee of Kerr-McGee Chemical Corp. in Trona, Calif. -- charged that random testing violated their state constitutional right to privacy.

Edward Chen, the American Civil Liberties Union attorney involved in the Southern Pacific case, said: "This ought to put a moratorium on random testing in California."

"Both (appeal) courts have held that testing is an invasion of privacy," he said.

In the Southern Pacific case, Barbara A. Luck, a computer programmer, won a $485,042 jury award based on her claims of wrongful firing because she was dismissed in 1985 when she refused to submit to a urine test.

James Semore, the Kerr-McGee employee, was fired in 1986 because he refused to submit to a pupillary reaction eye test. The appeal court upheld his right to file suit based on violation of privacy rights.

Semore's case now goes back to Southern California for a trial on the issues.

John True, an attorney for the Employment Law Center, which supported Luck's case, said, ``The Supreme Court had an opportunity to approve of random testing of current employees in either the Luck or Semore case and it did not do so.''

"As an employee advocate, I find that very encouraging," True said.

Based on the two appeal court decisions, the law in California now seems to be that an employer needs a compelling interest to order random drug tests for employees, according to Palefsky.

Only safety sensitive jobs might come close to meeting that tough legal standard, and even in those cases the courts have not looked favorably yet, Palefsky said.

Employers must also show there is no less intrusive means of testing for drug use, he said, noting there are other means for testing drug impairment, such as a video game-like skills test developed by NASA to test impairment. Currently, drug testing in California is generally permitted for job applicants, following accidents or when an employer has a reasonable suspicion of drug use by a specific individual.

The Luck and Semore appeal decisions differ in one legal area that may need to be resolved by the high court later.

The Luck decision held that her firing was not a violation of public policy. In other words, the invasion of privacy did not affect the public at large.

The Semore decision held the opposite -- that his firing was a violation of public policy and that if his privacy right is affected, everyone else facing drug testing could be affected as well.