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Construction industry weighs drug testing.

Construction Industry Weighs Drug Testing

The war on drugs has come to work, with drug testing od employees and applicants in federal jobs and private industry. A controversial practice, it is creating divisions that mark different views among those favoring or opposing.

The question of whether drug test violate the constitutional guarantee of privacy is still being debated in high courts acess the nation. But the courts have upheld federally mandated drug testing for five illegal drugs that may impair safety.

The Drug-Free Workplace Act of 1988 was the first declaration of the war on drugs in the workplace. The act requires companies with two or more employees doing business in excess of $25,000 with the federal government to have a verifiable program that addresses substance abuse in the workplace. That means employees must be told the company has a policy against drug use on the job, told about the effects of drug use, and told where to get help if they have a problem. The act stops short of requiring drug testing.

The second volley fired in the workplace drug war was a federal mandate for drug testing in safety-sensitive jobs. The Department of Transportation this year finalized requirements for drug testing in six transportation industries: the Federal Aviation Administration, the Federal Highway Administration, the Federal Railroad Administration, the United States Coast Guard, the Urban Mass TRansportation Administration, and the Research and Special Programs Administration.

A small number of firms in Alaska, including those in the state's construction industry, are adopting their own testing programs as well. Many of them are fashioned after DOT's program, largely because DOT's program has already been tested in court.

The DOT program consists of pre-employment testing, random testing of workers and for-cause testing after an accident. The DOT's rules are carefully designed to protect employee privacy and sample integrity. The program tests for marijuana, cocaine, opiates, amphetamines and phencyclidine (PCP).

The samples are first screened with an enzyme immunoassay test. If drugs show up, the sample is tested a second time using gas chromatography/mass spectrometry. According to DOT statistics, more than 30,000 tests run under these guidelines never resulted in a false positive. As a final safeguard, the program requires a doctor to review all tests and talk to employees who test positive to see if there are modical reasons for the results.

Anchorage lawyer Paul Davis of Paul Davis and Associates counsels companies interested in setting up programs. "Our advice is they use the DOT model to work from. It's been tested in courts; the risks are not quite as much," Davis says. cBut every employer has to realize that any time you get involved in drug testing, there's a certain amount of risk because of the right of privacy act up here. You may get sued."

Case law in Alaska regarding drug testing is still evolving. Drug testing touches on issues of privacy, labor law and liability. "Employers need to know exactly whey they're doing it," Davis says. "Not just because it sounds like a good idea or because they have strong moral feelings about drug use. They need to understand why as it applies to their company and personnel, and they need to get good counsel on how to do it."

Joining the War. Why the push for drug testing? Safety. Economics. Even patriotrism. "Every employer who bans drugs from the workplace" is a front-line soldier in the drug war, said President George Bush.

The DOT's stated concern in starting its program was public safety. The department didn't want people such as flight controllers, train engineers, pipeline workers, and interstate truckers impaired by drugs while on the job.

Besides making the workplace safer, drug testing is supposed to reduce absenteeism and theft, increase productivity, lower workers' compensation costs and indirectly lower health insurance premiums. In other words, increase profits.

Here are statistics on the cost and frequency of drug and alcohol use:

* The National Institute on Drug and Alcohol Abuse estimates that drugs and alcohol on the job cost employers $102 billion a year. It estinmates that one in every five workers ages 18-25 and one in every eight workers ages 26-34 uses drugs on the job.

* The U.S. Chamber of Commerce reported in 1988 that drug users were twice as likely to request time off; three times more likely to be late for work; four times more likely to injure themselves or others at work; five times more likely to file for workers' compensation; and a third less productive than workers who don't use drugs. The chamber also says that medical costs for drug-abusing employees are 300 percent higher than for sober workers.

* According to the U.S. Attorney General: 10-15 percent of all highway fatalities involve drug use; one of every 10 American workers is impaired by substance abuse; and the estimated total cost to the economy from illegal drug use is more than $100 million.

* A Gallup poll found that 68 percent of large companies with drug testing programs had to deal with incidents of employee drug abuse in 1988.

The Alaska Trucking Association Inc., in its booklet "What Every Driver and Company Should Know about Drugs," puts it this way: "Estimates of the extent of the drug problem may vary, but they all lead to the same conclusion -- that unlawful drug use in the workplace is a national problem of crisis proportions."

The trucking association has developed a drug-testing program based on the DIT regulations. A majority of Alaska's trucking association member companies will be testing drivers as a result of the DOT requirements.

"We get no beefs from the drivers about it," says Frank Dillon, the associations's executive director. "The vast majority of the drivers aren't users anyway. They aren't sympathetic with those who are."

Veco Inc. has been testing employees for drugs since November 1988, some 16 months before federal DOT standards came into effect. In fact, only 3 percent of Veco's employees fall under DOT regulations, but all of the company's employees are tested. "We are concerned, and have been, about safety," says Gordon Collier, manager of personnel. "Workers' compensation, safety training and safety awareness are areas the company works at very hard."

Fighting Battles. Drug testing programs are not without challenges. The DOT program has been the subject of several lawsuits, and the random testing component of its program is on hold for several agencies pending final court rulings. Courts have upheld random testing as it applies to law enforcement.

Courts typically have tried to balance government interests underlying the testing requirement and the privacy interests of employees. One of the factors considered by the courts in determining the strength of governmental interest is the necessity of testing to promote safety. Another factor is the extent to which testing procedures protect the privacy interest of employees, thereby limiting the intrusion on rights protected by the Fourth Amendment.

In this state, the Alaska Civil Liberties Union has been among those challenging drug testing programs. In 1987, the ACLU represented an oil service company employee who was fired for refusing to take a random drug test. The case went to the Alaska Supreme Court, which ruled in favor of the company. The ACLU argued that the employee had the right to refuse in order to protect his privacy under the Constitution, that what he did in his spare time has a bearing only when it affects his job performance.

"By all evidence, he was an excellent employee," says jamie Bollenbach, ACLU executive director. "But the court did not recognize constitutional privacy rights for private-sector employees. We're not opposed to drug testing as long as there is a showing of impairment. There are times when drug testing may be appropriate. But the random testing employed by most industries appears to be a clear violation of the principle of privacy."

Ten states have passed legislation banning random drug testing. Legislation to do so in Alaska is in the works, says Bollenbach.

One drug not included in pre-employment and random testing programs, including the DOT's, is alcohol, which experts say is the nation's most destructive drug and the number one problem in the workplace. But alcohol is legal.

"The perception about alcohol is clouded," suggests lawyer Davis. "It's easy to understand impairment from heroin, but employees, employers, go out and have beers for lunch, even when there's a degree of impairment that may affect safety."

Companies generally deal with alcohol abuse through policy. Company policies may, among other things, prohibit drinking on the job under the threat of firing. Or they may send alcohol abusers through rehabilitation programs.

Alcohol abuse is also dealt with in law. For instance, DOT regulations prohibit interstate truck drivers from consuming alcohol within four hours of going on the job. Also, under federal law, these drivers will lose their licenses if there blood alcohol level exceeds 0.04, rather than the more lenient 0.1 standard for the general driving public.

Testing for other legal drugs, such as those contained in prescriptions, is also a gray area. It raises such issues as whether an employer has the right to pry into medical records. Positive detection for a prescription drug, for instance, may reveal a medical condition that is unrelated to drug abuse but could essentially blackball the employee.

Testing for marijuana in Alaska, where possession of small amounts in the home is not a criminal offense, has been challenged as well. Under federal law, however, even in Alaska, marijuana use is illegal. The Alaska Supreme Court has ruled that a company has the right to test for marijuana because it is a drug that impairs.

The Department of Transportation heard a variety of concerns about its drug program. It received more than 80 comments from the public while finalizing its drug testing rules. The comments ranged from specific suggestions and concerns about procedures to outright condemnation of the entire drug-testing movement.

"On the basis that urine testing is such a bad idea that no set of procedures could redeem it, some comments urged abolishing the procedures (and implicitly the entire DOT drug testing program as well)," according to the Federal Register's publication of DOT final rules in December 1989.

"The Department is committed to drug testing as necessary for transportation safety. These procedures are the vest means of which the Department is aware to ensure that testing is fair and accurate."

The DOT guidelines require that the testing be done at laboratories certified by the Department of Health and Human Services. About 48 laboratories in the nation have this certification.

At this time, there are no DHHS-certified labs in Alaska, although there are several labs that collect urine samples from employees of DOT agencies. At this time, all these samples are shipped out of state for analysis.

Laboratories in Alaska do, however, perform drug tests for private, non-DOT agencies. Allvest Laboratories is currently seeking DHHS certification, according to Matthew Fagnani, company president. It is one of the few laboratories in the state with a foresic toxicologist on staff, one of the requirements for getting DHHS certification. To get this certification, laboratories must follow strict guidelines in the way they handle and process the samples.

Allvest's laboratory in Anchorage was started primarily to do in-house testing; Allvest Inc. owns three residential treatment centers in Alaska. A couple of years ago, the company started doing drug testing for other companies. Today, Allvest manages drug testing programs for a variety of agencies and businesses -- the state's marine highway system, fish processing companies, logging companies, community service programs, employee assistance programs, oil-related companies, trucking firms.

Another laboratory collecting drug samples is Physicians Med Lab of Anchorage, a subsidiary of Nichols Institute Laboratory of California. Nancy Davis, Alaska account executive for the firm, says 50 percent of the company's testing, performed Outside, is done for the construction industry. The lab's other major client areas are oil and gas, fishing, aviation and trucking.

Allvest's Fagnani says he sends letters to companies offering to set up drug-testing programs tailored to their needs but modeled after DOT regulations. Fagnani says managers at many firms respond that they are reluctant to adopt the practice because they are unsure of the legal implications or because they fear they won't get any workers.

"As more employers find economical benefits to drug testing, I think more will test," Fagnani predits, "I do think drug testing is here to stay."
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Title Annotation:Special Section: 1990 Associated General Contractors of Alaska Annual Conference
Publication:Alaska Business Monthly
Date:Nov 1, 1990
Previous Article:Concern grows over construction work force.
Next Article:Riding the wave of capital spending.

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