Drug tests: What is a `reasonable' intrusion by employers?

ONE of these days - most likely within the next two years - the United States Supreme Court will be faced with deciding the constitutionality of drug testing in the workplace. Based on lower court litigation and independent legal opinions so far, a high court ruling is not likely to go ``up'' or ``down'' on this issue. As happens with most other controversial social issues, it could well take several cases - over a span of time - for the justices to reach a consensus.

The arguments on both sides have merit.

Many government and private employers favor drug testing - insisting that it is their right and duty to ensure that the job environment is free from use of chemical substances. They also point out the dangers of drug use to fellow workers and to customers and clients.

Opponents counter that this type of test - particularly if administered in an arbitrary fashion - could violate Fourth Amendment protections against ``unreasonable searches and seizures.'' A basic right to privacy is at stake, they stress.

There are no absolute constitutional protections against searches and seizures. The key is what is reasonable and what is not. It is this yardstick that has swayed judicial decisions so far.

In a significant ruling this spring, a federal appeals court panel in New Orleans upheld a government program to give drug tests to US Customs Service workers seeking drug-enforcement jobs.

A lower court had decided that the program was unconstitutional.

Judge Alvin Rubin of the US Court of Appeals for the Fifth Circuit said, however, that the needs of society must be balanced against the rights of the individual.

Writing for a 2-to-1 majority, Judge Rubin explained that ``because of the strong governmental interest in employing individuals for key positions in drug enforcement who themselves are not drug users and the limited intrusiveness of this particular program, it is reasonable and, therefore, is not unconstitutional.''

Dissenting jurist Robert L. Hill read the ``reasonableness'' factor differently. Judge Hill said that the government's plan was an ineffective method to achieve customs' goals and ``thus ... an unreasonable invasion of the Custom Service's employees' Fourth Amendment rights.''

This ruling is under appeal. Earlier this week, however, the US Supreme Court said that testing can continue, pending final judicial resolution.

Other federal courts are also weighing the reasonableness of drug testing; so far, at least three others have found it justified.

The Court of Appeals for the Eighth Circuit, for instance, has upheld the constitutionality of random urinalysis for Iowa prison guards. This tribunal also approved random testing for Chicago Transit Authority drivers.

And the US Court of Appeals for the Third Circuit has sanctioned a random testing program for racehorse jockeys in New Jersey.

No federal or state laws now prohibit drug testing in the workplace. Only Utah has passed specific legislation to limit or regulate the practice - mandating that employers must have specific written policies and show due regard for their workers' privacy.

And in Virginia, the state attorney general has issued an advisory opinion that random drug testing of public employees not suspected of drug use is illegal. This edict - which is being used mainly for guidance until there are further definitive court rulings - also suggests that the state can require tests of job applicants only if the latter are seeking public safety positions.

Among cities, San Francisco stands alone in banning on-the-job drug testing except where a person is impaired.

Meanwhile, President Reagan's highly controversial executive order of last fall, which mandates substance testing of all federal employees in ``sensitive'' positions, is headed for judicial evaluation - probably ultimately by the Supreme Court.

The administration stresses that government workers have no absolute expectation of privacy, particularly from inquiries as to their fitness for duty and when they are given advance notice of such inquiries.

Drug testing is considered by many of its advocates no more intrusive into a worker's privacy than fingerprinting, background checks, and other personnel screening.

It will continue to be challenged, however, as to its reasonableness, its intrusion on privacy, and its possible violation of other constitutional protections - such as the right against self-incrimination.

And well it should.

A Thursday column