Test Cases

Some 4.2 million federal employees got the word last week on new imposed guidelines governing tests for drug use. The rules, based on Ronald Reagan's Executive Order of last September calling for drug-free workplaces, were drawn up by the Government's Office of Personnel Management. They stipulate that federal agency and department heads may fire workers in sensitive positions, like those with access to classified information, who are found to be using illegal drugs; discharge is mandatory after two such instances. Affected employees will be notified 30 days in advance that they will be required to take a test. Workers who refuse to be tested may also be fired.

The Federal Aviation Administration, acting independently, has also proposed drug testing for pilots as well as other key airline employees like mechanics. But that program and Reagan's face tough challenges in the courts, where a number of judges have already ruled that mass testing violates workers' constitutional rights to privacy and protection from self-incrimination.

Most damaging so far was a decision in New Orleans last month by Federal Judge Robert Collins, who called a U.S. Customs Service drug-testing program "unreasonable and wholly unconstitutional." Acting on a suit brought by the National Treasury Employees Union, Collins permanently enjoined a program requiring urinalysis tests for employees seeking promotions in three sensitive categories, including those directly involved in enforcing drug laws. In Chattanooga, Federal Judge R. Allan Edgar last month rejected the city's program to test police and fire fighters, ruling that an individual could be examined only when supervisors had "reasonable suspicion" that an employee used drugs.

Employees of some private companies have not fared as well in court. In Iowa this fall, a federal appellate court upheld the right of the Burlington Northern Railroad to test workers involved in accidents as well as those returning from furlough. More important, the Supreme Court last week refused to hear the appeal of five jockeys that random tests for drug and alcohol abuse violated their rights. A lower court had upheld the testing on the ground that jockeys are voluntary participants in an industry that must curry the confidence of bettors by assuring drug-free races. The Reagan Administration hopes that the courts will apply that reasoning to workers in sensitive government jobs. Says Richard Willard, head of the Justice Department's Civil Division: "People who are in law enforcement or who have access to sensitive classified information present an even stronger case than racehorse jockeys."