Municipal
Drug
Testing
On
the
Way
Out
in
Washington
State
11/3/00
In the wake of a Washington state appeals court ruling that overturned Seattle's pre-employment drug testing of most city employees, major cities across the state are ending or severely narrowing their municipal drug testing policies. The ruling was the latest in a three-year-old lawsuit filed by the American Civil Liberties Union (ACLU) that challenged the city of Seattle's 1996 decision to implement broad, pre-employment drug testing of city workers. A King County (Seattle) Superior Court judge had upheld the policy in early 1999, after the city agreed to dramatically restrict the categories of workers who would face mandatory pre-employment testing. "One shouldn't have to pee in a cup to get a job with the city when there is no evidence that the individual has any problem with drug abuse," ACLU spokesman Doug Honig told the Seattle Post-Intelligencer as he announced the ACLU's appeal last year. On October 2nd, the Court of Appeals agreed, ruling that Seattle's drug testing program violated privacy rights guaranteed under the Washington state constitution. The judges wrote: "The national scourge of drug abuse is a proper and abiding concern for government. But even in the face of such concerns, the protections of the constitution control." It rejected Seattle arguments that the program was part of a "zero tolerance" stance that targeted specific concerns about employee drug use and that it saved the city money by reducing employee sick time and accidents. A 1994 study by the National Academy of Sciences, "Under the Influence? Drugs and the American Workforce," found there was insufficient evidence to show that worker drug testing deters drug use, increases productivity or improves workplace safety. A 1998 study by researchers at the Le Moyne College Institute of Industrial Relations agreed. Its authors concluded, "The empirical results suggest that drug testing programs do not succeed in improving productivity. Surprisingly, companies adopting drug testing programs are found to exhibit lower levels of productivity than their counterparts that do not... Both pre-employment and random testing of workers are found to be associated with lower levels of productivity." That study is available online at http://www.lindesmith.org/library/shepard2.html. Mark Kipling, the Seattle attorney who argued the case, told the Tacoma News Tribune, "It's a very important case. It's the first time to my knowledge the state constitution's privacy protections have been (used) in the employment context." Although the state constitution potentially provides additional privacy-based protections to government employees, it appears that Washington municipalities will rely on federal standards. The US Supreme Court has limited suspicionless drug testing of government workers to situations that present a serious threat to national security or public safety. The ACLU lawsuit did not challenge drug testing for some public safety employees, including police, firefighters, and bus drivers. The ruling has already caused repercussions in major cities across the state. At press time, the city of Seattle had still not decided whether to appeal to the state Supreme Court. Six of its nine council members, however, told the city attorney they did not wish to pursue the case any further. It must also come up with a new drug testing policy that will fall within state constitutional guidelines. This week, the city of Tacoma announced it is substantially shrinking its pre-employment drug screening program. It, too, will follow federal laws and test only police, firefighters or those driving city vehicles with a commercial truck-driver's license will be tested. Tacoma officials cited fear of future lawsuits. "Part of our job in the legal department is to keep pace with court decisions and changing legislation," chief assistant city attorney Elizabeth Pauli told the News Tribune. "If our drug-testing policy is broader than what the court said, we would say, 'OK, do we want to sit back and be challenged? Or do we want to be proactive?'" Other Washington cities with municipal drug testing programs are also reacting. Bellingham has changed its policy, and Everett's is in the process of being changed. Spokane's policy is now under review, city officials told the News Tribune. Employees in the private sector should be so lucky. Private employers do not have the same constitutional restrictions affecting government bodies.
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