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Federal Drug Testing to Quadruple

November 21, 1988

WASHINGTON (AP) _ The federal employee drug-testing program instituted by President Reagan will quadruple in size next year unless stopped in its tracks by legal challenges.

An estimated 50,000 employees were tested this year, mainly law enforcement officers, transportation inspectors and civilians working for the military.

But the program is expected to test some 200,000 members of the 3.1 million federal work force in 1989, according to the National Institute of Drug Abuse.

About 150,000 to 170,000 of those will be tested at random and come from a pool of some 500,000 workers in positions deemed sensitive by their agency chiefs.

The remainder will be tested after accidents or when supervisors believe there is reasonable suspicion of drug use.

Those figures do not include untold numbers of federal job applicants who will be tested if applying for sensitive positions, nor do they reflect the Transportation Department’s far-reaching requirement to test nearly four million private sector transportation workers - from truckers to airline pilots. That program would begin late next year for businesses employing more than 50 workers. Those with fewer than 50 would have two years to get ready for testing.

Most suits against testing, many filed by unions, are in federal district or appeals courts. Only two have been argued before the Supreme Court, but neither involves the random testing that has been challenged as an intrusive, unconstitutional search.

″By the first of the year most all of the tier one (the 42 largest) agencies, the largest chunk of the work force, will have their programs up and running,″ said Dr. Michael Walsh, director of the National Institute of Drug Abuse’s Office of Workplace Initiatives. The office coordinates and approves federal testing plans.

The testing program has its origin in a Sept. 15, 1986, presidential order directing that federal workplaces be drug-free. Besides testing, other components include training supervisors to recognize symptoms of drug abuse among employees, and counseling programs at federal agencies.

The counseling is mandatory for those who test positive. Workers can also make voluntary use of the programs, as can members of their families.

Once entering the counseling program after a positive test, most workers will suffer no disciplinary action if follow-up tests show they refrained from drug use.

″The purpose is to get a person back on the job,″ Walsh said, but he cautioned that workers can be disciplined at the discretion of their agencies for continued drug use.

In the most sensitive law enforcement and national security jobs, workers can be fired the first time drug abuse is discovered, Walsh said.

The program has held up well so far in court decisions.

One suit challenged Reagan’s 1986 executive order as unconstitutional, but a Louisiana judge dismissed the action.

A federal judge in the District of Columbia held the random portion of the Army’s civilian testing program unconstitutional. But the U.S. Court of Appeals in Washington invalidated the decision pending appeal, and the Army continued testing.

The Transportation Department’s internal testing program was upheld by a federal judge in Washington, including after-accident testing challenged by air traffic controllers.

In a California case, however, a federal judge stopped the Bureau of Prisons from testing anyone except applicants for employment.

Justice Department employees in Washington sued their own agency to stop random testing, and won an injunction in district court. Arguments are set for Dec. 15 before the U.S. Court of Appeals.

There has been no decision in a suit challenging testing in the Veterans Administration.

The cases argued before the Supreme Court on Nov. 2 involve the Federal Railroad Administration and the U.S. Customs Service. But since neither involved random testing, they might not decide the broad constitutionali ty of the entire testing program.

The FRA issued orders in 1985 that required railroads to take blood and urine specimens - for alcohol and drugs - after accidents, incidents and rules violations.

The 9th U.S. Circuit Court of Appeals ruled last February that the tests are unreasonable searches banned by the Constitution’s Fourth Amendment. But the court stayed its decision in order to allow an appeal to go forward, and testing continued.

The Customs Service requires tests for anyone applying for a promotion or transfer to a job involving drug enforcement. That program was upheld by the 5th U.S. Circuit Court of Appeals.

Testing is ″obviously a violation of individual privacy and the Constitution, because of its provisions against unreasonable search and seizure,″ said Diane Childers, spokeswoman for the American Federation of Government Employees - a union that has filed several lawsuits against Reagan’s program.

She added that random testing ″does not indicate on-the-job impairment,″ and requires no probable cause or even reasonable suspicion of drug use. Ms. Childers said the union does not oppose after-accident testing.

John Bolton, chief of the Justice Department’s civil division, disagreed, saying, ″We’re not talking about the exercise of government police power or generalized searches of people as a whole.″

He added there’s a ″diminished expectation of privacy″ in many sensitive federal jobs, which begin with an FBI background check. ″Many of those jobs require a physical exam with urinalysis required,″ he said.

Bolton said Health and Human Services Department guidelines have strict test controls. Procedures for custody of the samples are carefully controlled to avoid mixups, there are strict criteria for testing laboratories, test evidence is not to be used in criminal prosecutions and there’s no observation of the worker giving the sample. A collection person of the same gender will be in the bathroom, however.

Testing is for five drugs: cocaine, marijuana, PCP, opiates and amphetamines.

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