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Applicant drug testing: an intriguing odyssey

by Jay F. Atwood

Applicant drug testing is one of the most complex and controversial issues confronting public employers today. Initiating applicant drug testing will result in an intriguing odyssey with many political, legal and personnel policy challenges. The State of California recently completed such a three-year odyssey. This article has a twofold purpose. First, to chronicle briefly California's odyssey as an example of how public policy is developed for a controversial personal issue. Second, to identify the key issues in regulating applicant drug testing on how such issues were resolved in an operational context.

To test or not to test; that is the question. Indeed, whether or not to do applicant drug testing is one of the most legally complex and programmatically controversial questions confronting public employers today.[1] If a public employer does decide to embark on the road leading to applicant drug testing, it will prove to be an intriguing odyssey with many political, legal and personnel policy challenges.

Beginning in mid-1986, the California State Personnel Board (SPB) started such an odyssey, searching for a path through the legal and policy thicket association with applicant drug testing. It has been an arduous task to identify the issues, propose solutions and cope with concerns through several policy analysis iterations. We finally have applicant drug testing regulations which became effective in May 1989.

The article has a twofold purpose. First, to describe the chronology of this odyssey as an example of how public policy is developed for a controversial personnel issue. Second, to identify the key issues in regulating applicant drug testing and how such issues have been resolved in an operational context. This synoptic case study may be useful to other public entities confronted with the question of whether or not to undertake a similar odyssey.

Background - Chronology

The odyssey begins in 1985 when the California Department of Corrections opted to initiate drug testing for applicants for the entry-level class of Correctional Officer. The Department was experiencing a major expansion, anticipating hiring 30,000 new officers in a ten-year span. Substance abuse among those in the predominant age group of potential applicants was a major concern of the Department.[2] For all peace officer applicants, there is a State statute which mandates that they be (a) a good moral character; and (b) found to be free from any physical, emotional or mental condition which might adversely affect the exercise of the powers of a peace officer. The Department perceived this to be their authorization to administer a drug test.

The staff of the SPB became aware that a drug test was being administered as part of the physical examination when an applicant appealed his disqualification from the examination due to a positive drug test result. As part of our responsibility to oversee departmental civil service examining, we received the drug testing process the Department of Corrections had established. As a result, we directed that certain changes be made.

At this point, it was evident that the SPB needed to establish a comprehensive policy on applicant drug testing since expansion beyond the one department was likely and there was a myriad of facets to be analyzed. Suitable regulation of applicant drug testing became imperative.

On September 24, 1986, Governor Deukmejian issued Executive Order D-58-86 which established the goal of a drug-free State workplace and directed that policies be developed to achieve this goal. In December 1986, the SPB conducted an informational hearing on drugs in the workplace. Authoritative persons were invited to present information on such topics as: scope of the problem; legislative initiatives; legal implications; program experiences; testing protocol and technology; and employee education and assistance programs. This public hearing provided a comprehensive overview for a11 interested parties and served to focus on the key issues in developing and implementing a drug testing policy. In essence, it provided a generalized road map for your odyssey.

Next, the Board staff developed policy guidelines for applicant drug testing. These covered the fundamental issues; however, as we subsequently learned, they failed to address many issues in sufficient detail. The Board conducted a public hearing on the proposed guidelines in April 1987. The staff was then directed by the Board to prepare formal regulations.

Such regulations were developed and considered by the Board in a public hearing in November 1987. Subsequent public hearings were conducted on modified versions of the regulations in April 1988 and September 1988. Each time modifications were made to address the concerns raised by management, union, civil rights and industry representatives. As might be expected, applicant drug testing was vigorously supported by management and vehemently opposed by State employee unions and the American Civil Liberties Union.

The matter attracted the interest of the State Legislature. During this period, bills both to authorize and to curtail drug testing in employment were introduced but not enacted. A political stalemate on this issue has persisted to the present time. On two occasions, Board staff was required to defend our proposed regulations before legislative committees.

As might be expected for a sensitive and emotional issue such as drug testing, there was extensive coverage by the news media of our progress. Probably greater media interest and reportage occurred on this issue than any other that the Board has been confronted with during this decade.

In October 1987, the Board deemed it advisable to communicate to all applicants that honesty and sobriety are universal qualifications for State service employees. Furthermore, simply because drug testing was to be limited to only certain "sensitive" classes, that in no way was intended to imply that illegal drug usage was condoned for applicants for a class not requiring mandatory drug screening. Accordingly, a statement, as follows, which communicates to all examination announcements:

It is an objective of the State of California to achieve a drug-free State workplace. Any applicant for State employment will be expected to behave in accordance with this objective because the use of illegal drugs is inconsistent with the law of the State, the rules governing civil service and the special trust placed in public servants.

During 1988, two other departments initiated applicant drug testing. First, the California Highway Patrol did so for its entry-level State Traffic Officer Cadet applicants, Then, the Department of the Youth Authority did so for its Group Supervisor and Youth Counselor applicants.

After the September 1988 hearing, the proposed regulations were adopted by the Board and submitted to the Office of Administration Law (OAL) for approval, as required by the Administrative Procedures Act. OAL reviews all proposed regulations for authority, necessity, clarity and consistency. In December 1988, OAL disapproved the Board' s proposed regulations citing lack of clarity and possible statutory and constitutional problems with the ban on future examination eligibility for individuals who fall the drug test.

Board staff then modified the proposed regulations to reflect the OAL challenges and scheduled yet another public hearing in March 1989. The Board unanimously adopted the regulations and they were resubmitted to OAL. Approval was received from OAL in Spring 1989 and the regulations became effective 30 days later.

It should be noted that the Department of Personnel Administration (DPA) adopted regulations effective in October 1988 authorizing drug and alcohol testing of current employees in "sensitive" positions. Such testing can occur when "reasonable suspicion" exists that the employee on duty or on standby duty is under the influence of an illegal drug or alcohol. The DPA administers the non-merit elements of the State' s personnel management system whereas the SPB administers the merit elements. This split in responsibility accounts for the regulation of drug testing by two separate organizations.

Finding the Balance

As with other controversial issues in the public personnel management arena, the matter of applicant drug testing generated competing interests, each with seemingly valid claim.[3] State management has a legal and moral obligation to preclude employment of individuals in "sensitive" jobs who use illegal drugs. There is a compelling government interest to avoid potential harm to the health and safety of others by drug related behavior of public employees. Applicants have a right to personal privacy and against unreasonable search. Also, they have a right to a fair and accurate testing process as is technically feasible. The Personnel Board, as the neutral body regulating the merit selection process, had to find the most reasonable balance between these competing interests in order to find the elusive yet pandemic "public interest."

In fashioning a suitable solution, the Board determined the following:

1. Drug testing must be regulated. Standardless testing is not only unfair and inimical to the interest of the applicants, but is constitutionally defective as well.

2. Drug testing must be job-related; therefore, only those classes which are determined to be "sensitive" (i.e., the consequences of drug-related behavior endanger the health and safety of others) after a public hearing will include drug testing in the selection process.

3. Integrity and accuracy of the entire testing process must be assured. All facets of the process from specimen collection through determination of final result must reflect a forensic standard.

4. Confidentiality of test results must be assured and results only used for the purpose of determining qualification for employment in a "sensitive" class.

5. For those applicants who are currently State employees, test results must not be used to ascertain their fitness to perform in their current jobs. Thus, no adverse action which might impact their current employment status can be initiated based upon a test result in a civil service examination.

6. Consequences of a failed drug test must be sufficiently severe to reflect the seriousness of illegal drug usage, but tempered by considerations of rehabilitation and extenuating circumstances.

7. Right of appeal must be afforded all applicants. Any regulations devoid of these safeguards were not deemed to be fair to applicants or legally sustainable. Any public jurisdiction contemplating applicant drug testing ought to consider carefully the standards which will be perceived by management, applicants and the courts as fair, reasonable and legally sound.

In the most significant court decision upholding applicant drug testing for "sensitive" jobs in a public agency, a warrantless search (i.e., a urine drug test) was found to be permissible in the absence of "individualized suspicion" if the government employer establishes standards and safeguards to ensure that the individual' s reasonable expectation of privacy is not subject to the discretion of officials.4

The Von Raab court cited the following standards which rendered applicant testing constitutionally permissible:

1. Strict chain-of-custody procedures.

2. All samples screened by EMIT (i.e., immunoassay) method and positive samples confirmed by gas chromatograph - mass spectrometry (GC/MS) method.

3. Applicant has option of resubmitting specimen to retesting to authorized lab of his or her own choosing.

4. Quality assurance of test results through use of only certified labs.

5. No discretion for officials for determining who is tested or in interpreting test results which are scientifically established as positive or negative.

6. Testing is voluntary and not required as a condition for continued employment and test results have no impact on current employment status.

Resolving the Substantive Issues

Some 12 substantive issues were addressed in developing California's applicant drug testing regulations. The following identifies each issue and briefly explains how it was resolved.

1. What applicants should be tested?

As noted above, the department must document the sensitivity of the class and the consequences of drug-related behavior to demonstrate that drug testing is job related. Criteria used are: (a) the duties entail responsibility for the health and safety of others; (b) mistakes can endanger the health and safety of others; and (c) supervisory control cannot be expected to preclude such mistakes.

Obviously, peace officer classes satisfy these criteria and perhaps physicians, nurses and equipment operators as well. Each class is to be determined on a case-by-case basis as a result of a public hearing where a factual case must be made to include a drug testing requirement in the class specification.

All applicants for the class are to be tested unless the applicant has a current appointment to a class designated as "sensitive." Persons transferring or reinstating to a designated "sensitive" class are also subject to drug testing.

2. How much advance notice of drug testing should applicants be given?

Testing departments typically want to minimize the advance notice to applicants to preclude their refraining from drug usage to avoid detection of regular usage. Nonetheless, the Board opted for notification of urine drug testing to applicants and the consequences of failing the drug test on the examination announcement.

The specific drugs to be tested are revealed on the authorization to test form signed by the applicant when he or she is scheduled for the drug test which usually provides a very limited advance notification.

3. What laboratories should be authorized to conduct drug tests of urine specimens?

This is one of the most critical decisions that has to be made. The literature on drug testing is repleat with "horror stories" about the inaccuracies of drug testing. The problem is not inadequate technology to achieve a virtual error-free result. Rather, it is the application of that technology by unscrupulous or incompetent laboratories that creates the flawed test results.

Unless the regulating entity can assure applicants and the public that the laboratories used (a) have competent staff who are suitably trained and proficient in the operation of the most reliable and accurate testing technology; and (b) adhere to the most exacting quality control standards, then the drug testing process cannot be represented as being fair or legally defensible.

Initially the Board required either certification by the National Institute on Drug Abuse (NIDA) of laboratories engaged in drug testing for Federal agencies; or accreditation by the College of American Pathologists (CAP) for forensic urine drug testing plus participation in a laboratory proficiency testing program. When we encountered a technical reference problem in our regulation format, we had to revise this to permit use of those laboratories that meet these certification or accreditation standards of NIDA or CAP. Nevertheless, the original intent of accepting only the most qualified laboratories remains.

4. What testing methodologies should be used? Should a confirmatory test be required.

The Board requires use of an immunosassy type or equally reliable methodology for the screening test. Immunoassay tests are not problem free. Nevertheless, they are widely used and generally accepted as a reasonably accurate screening method. The U.S. Navy uses them as do most employers who have established a standardized testing process. The Mandatory Guidelines adopted in 1988 by the U.S. Department of Health and Human Services, National Institute on Drug Abuse, specify that the "initial test shall use an immunoassay..."[5] A comprehensive survey of experts in the area of drug testing as to the legal defensibility of specific analytic drug testing methods found that "Two multiple-procedure test methods, EMIT-CG/MS and RIA-GC/MS {Note: EMIT and RIA are immunoassay tests} are rated fully defensible against legal challenge..."[6]

The logic of using an inexpensive screening test, such as immunoassay which admittedly can generate false positive test results, in tandem with a more expensive, highly accurate confirmatory test, such as GC/MS, is set forth in the following:

"The low proportion of samples that give positive results is an important factor in an employer's cost illustrating the desirability of having inexpensive screening procedures...the legal defensibility of the screen becomes much less important, as the screen is fulfilling primarily an economic role, i.e., that of identifying samples free of drugs.

"Having reduced the number of samples to those that have some indication of the presence of drugs or drug metabolites, it becomes, more economical to use a fully defensible procedure for confirmation."[7]

Since the immunoassay test can result in some false positive test results, the confirmatory test using a different and more highly specific testing methodology is required in the SPB regulations. This is consistent with the NIDA Guidelines.[8] GC/MS is the most sensitive and accurate method for the identification of minuscule amounts of chemicals. "'GC/MS is virtually 100% accurate', according to UCLA' s Anthony Daly, who was medical director of the 1984 Olympics and is also chairman of the Major League Baseball Drug Abuse Committee.''[9]

The GC/MS method is perceived as legally defensible by experts because:

"...data generated from GC/MS instruments can be easily received by independent third parties. Consequently, the analytical results can be thoroughly documented, and specific testimony related to the data can be obtained from outside experts[10] ...most forensic experts believe that a GC/MS is the 'gold standard'.[11]

Perhaps the most compelling support for the reliability of the immunoassay screening and GC/MS confirmatory tandem testing is found in court decisions:

"The urinalysis which the defendants have implemented, consisting of the EMIT/GCMS chemical analysis procedure, is a highly accurate and reliable procedure for detecting the presence of metabolites of cocaine, marijuana, and heroin or opiates in a sample of urine. Moreover, courts have informally approved EMIT and GCMS tests as accurate and reliable predictors of these metabolites. As to EMIT testing see Spence v. Farrier, 807 F. 2d 753 (8th Cir. 1986);Hamon v. Auger, 768 F. 2d 270, 276 (8th Cir. 1985); Jensen v. Lick 589 F. Supp. 35, 38-39 (D.N.D. 1984); as to GCMS testing see Wykoffv. Resig, 613 F. Sup. 1504, 1512 OND Ind. 1985); Lovvorn City of Chattanooga, 647 F. Supp. 875, 878 n. 4 (E.D. Tenn.

If an employment decision were to be based solely upon the results of an immunoassay test, then the potential for a false positive result is a significant concern. On the other hand, if the immunoassay test is used simply as a screen to identify possible presence of a drug and the GC/MS test is used to confirm the presence of the drug, then the potential for a false positive at the screening stage is of no practical or legal significance.

5. What drugs should applicants be tested for?

Any potential list of drugs of abuse would be quite extensive and could be augmented as new "designer drugs" are introduced into the illicit market. The Board decided that, as a minimum, the five most prevalent drugs of abuse should be tested. These are amphetamines and methamphetarnines; cocaine; marijuana/cannabinoids (TI-IC); opiates (narcotics); and phencyclidine (PCP). This does not foreclose the testing for other drugs when deemed to be necessary,

6. What cutoff levels should be administratively established to identify a test result as positive?

Many agencies (including NIDA) have established specific cutoff levels in their testing regulations.[13] The Board opted for a different approach. Because the testing technology is still evolving, it was decided not to become locked into a specified cutoff level for each drug tested. Rather a criterion was established that the cutoff levels for screening tests "will identify positive samples while minimizing false positive test results." This approach will provide flexibility in approving cutoff levels for each departmental drug testing protocol yet ensure that anomalous circumstances (e.g., passive inhalation of marijuana smoke have not contributed to an erroneous (i.e., false positive) result.

It was determined that cutoff levels for the confirmatory test were not necessary since the sole purpose of such a test is to confirm that the substance or its metabolite is present but not in what quantity.

7. Should the applicant disclose all drugs recently used when being tested?

Due to cross-reactivity, prescribed or over-the-counter medications may be identified as illegal substances by the drug test. As a safeguard for the applicant who is taking prescribed or over-the-counter medications, the Board has included a drug disclosure method. On a form, separate from the authorization to test form, the applicant can identify all drugs or other medications he or she has used within the 14 days preceding the drug test. This information is sealed and only reviewed if the applicant has a conlimed positive test result. It will be evaluated in determining whether the positive result may have been caused for a medically acceptable reason.

8. Should a licensed physician evaluate the drug test result and render an opinion for the appointing authority?

Again as a safeguard for the applicant, provision has been made for a Medical Review Officer, who must be a licensed physician with knowledge of substance abuse, to evaluate all the factual information associated with each confirmed positive test result. This person will render an opinion to the departmental hiring authority as to the cause of the positive test result.

9. What specimen chain-of-custody requirements should be mandated?

This is another facet of the drug testing process which is critical to ensuring the integrity of the results. Deficiencies in the chain of custody will impugn the Validity of the entire process.[14] The steps to be followed from specimen collection through extended retention of the specimen must be carefully and specifically detailed. Human rather than technological error is more likely to cause an invalid test result; therefore, a concerted effort must be made to compensate for human fallibility.

10. How should confidentiality of test results be maintained?

One of the biggest fears of applicants' subject to drug testing is that the results will be indiscriminately .disseminated to their detriment. The Board made provision that the test results can only be used to ascertain an applicant's qualifications for employment in a "sensitive" class. Test results can only be revealed to the applicant, the department appointing authority and the Board's Executive Officer unless the applicant authorizes, in writing, disclosure to another party. For the purpose of administering the disqualification in certain subsequent examinations for "sensitive" classes, disclosure of a failed drug test may also be revealed to the appointing authorities who administer such examinations. For those applicants . who are current employees, there is a proscription against using drug test results in any adverse action proceeding relating to their suitability to perform their current job.

11. What consequences for applicants should stem from a failed drug test in terms of current and future examination eligibility?

This was one of the most controversial issues which confronted the Board. Several departments advocated a permanent disqualification from all State peace officer examinations if the applicant tested positive for an illegal drug, the possession of which constitutes a felony under State statues. This draconian penalty is premised on the statutory mandate which permanently bars any person who has been convicted of a felony from employment as a peace officer. Most unions and some departments believed this permanent bar to be too severe and precluded consideration of extenuating circumstances associated with the drug usage (e.g., age, frequency of Usage, social environment, etc.) and potential for rehabilitation. Also a concern was raised as to whether any form of future disqualification was contrary to the Federal Rehabilitation Act of 1973 which prohibits discrimination in employment against the handicapped, including former drug abusers.

The Board adopted a compromise solution. If an applicant fails the drug test, he or she is disqualified from the current examination. Such an applicant is also disqualified for a one year period from any examination for a "sensitive" class. The disqualification period extends to ten years for all peace officer examinations, if possession Of the drug involved constitutes a felony offense. Provision is made, however, for a disqualified applicant to petition the Board's Executive Officer for permission to apply for a subsequent examination for a "sensitive" class. Individualized consideration will be afforded each person who so petitions. We do not believe that this approach violates the Rehabilitation Act.

Possession of the specified drug is a felonious act. Thus, those applicants who have used such drugs are deemed not to meet the qualifications for employment in a designated "sensitive" class based upon job-related criteria (i.e., honesty, integrity, reliability and law-abiding character). This presumption of employment unsuitability is rebuttable. This approach to assessing job,related qualifications is akin to disqualifying an admitted embezzler from employment in a position with fiduciary responsibilities or an admitted child abuser from employment in a position with juvenile custody responsibilities. In each of these instances, the person has committee a criminal act which has job-related implications. Moreover, there must have been a "substantial impairment of a major life activity" due to drug dependence to meet the definition of a 'handicap"'[15] Thus, the Act does not protect drug users per se nor previously dependent drug users who are not "otherwise qualified" for the employment being sought. The purpose of the drug test is not to determine either addiction or degree of impairment. The person is not being disqualified from subsequent specified examinations "solely by reason of his handicap," but for a job-related reason. For peace officer applicants, the focus is on use of a "dangerous drug," the mere possession of which is a felonious act under the law, rather than upon the fact that the person has a history of drug abuse or dependence.

A court has found that former drug addiction or history of drug usage bears a rational relation to suitability for employment in a position responsible for the health and safety of others. Moreover, there was no violation of the Rehabilitation Act when the public agency involved considered other factors related'to the applicant' s qualifications and was not refusing to hire based solely upon his drug addiction.[16]

12. What appeal rights should be accorded applicants who fail a drug test?

An applicant may obtain a retest of his or her urine specimen at his or her own expense. Such test must be by an authorized laboratory and correspond to the initial test protocol.

An applicant may appeal his or her disqualification due to a failed drug test to the Personnel Board. If successful in the appeal, the person's name is restored to the eligible list.

Alternatives Considered

As observed earlier, the issue of drug testing is perceived by many as an unreasonable intrusion into their personal privacy. These persons contend that less intrusive means exist which are available to the employer to detect drug usage.

In adopting these regulations, the SPB determined that no alternative considered would be more effective in carrying out the purpose of the regulatory action or would be as effective and less burdensome to affected private persons than the regulations adopted.

The purpose of the SPB rules is to regulate drug testing initiated by departments for certain "sensitive" classes. The rules do not mandate drug testing. The only alternative to regulating drug testing was not to regulate it. This alternative was unacceptable since it would result in standardless preemployment drug testing among the several departments conducting the tests. Standardization is imperative to ensure that the interests and rights of the applicants to a fir and reasonable process exists. Nonregulation would be totally ineffective and contrary to the public interest in a meritorious employment system.

Another alternative considered was to proscribe drug testing totally. The SPB did not find this alternative acceptable. The purpose of testing for drugs is to ensure that unqualified individuals are not employed in positions where their drug-related behavior could have inimical consequences for the health and safety of others. The State as an employer has a legal and moral obligation to take every reasonable action necessary to ensure that the health and safety of its citizens are not endangered by hiring individuals who lack the requisite qualifications.

There are methods other than drug testing to identify illegal drug users in the preemployment process. These include self disclosure, background investigation, diagnostic testing and polygraph testing. The State already uses the first two of these alternatives. Common sense suggests that these methods do not offer the same degree of assurance that physical testing does in identifying users of illegal substances who are not qualified to perform, sensitive" jobs where the individual is entrusted with the health and safety of others.

A court has commented upon the inadequacy of these alternative methods even for current employees in the preemployment context:

"Although the (U.S. Customs) Service has had an opportunity to observe the performance of employees while working in nonsensitive positions, this provides scant basis on which to evaluate their integrity and reliability should they be assigned to work in sensitive positions.

...Those interviewed (in a background investigation), however, may be reluctant to disclose their knowledge of the employee' s drug use or may be unaware of his use... In any event, background investigations are themselves intrusive invasions of any individual' s privacy.

As for psychological diagnostic tests, recent research indicates 'that they can supplement, but not supplant, urinalysis as a conclusive indicator of drug usage:

"The urine analysis presents definitive information about drug use... In practice, urine analysis (along with extensive background investigations) may be necessary to assure effective use of the IPI (Inwald Personality Inventory -contains a self-report Drug Use Scale). When candidates (1) submit urine specimens and know the purpose of that submission and (2) know they have been the subject of a background investigation, they may be more reluctant to minimize their past and present drug use than they otherwise might be.

"...The IPI is a useful tool for use in screening police officer recruit candidates, but its use must be supplemented by other means such as urine analyses and careful background investigations."

Polygraph testing is equally intrusive and much less reliable than drug testing. Therefore, it was not deemed to be a suitable alternative to drug testing.

Conclusion

If a public agency decided to conduct applicant drug testing, it must be regulated to withstand a likely legal challenge to ensure a fair selection process. As this article has attempted to demonstrate, this will necessitate a careful balancing of competing interests. For an issue as complex and controversial as applicant drug testing, this is not an easy task.

The State Personnel Board's regulations have addressed the key issues and do provide a starting point for any public entity which is contemplating regulating applicant drug testing. Our experience demonstrates that a path through the legal and policy thicket can be blazed. Nonetheless, the odyssey will not be completed without a significant commitment of time and resources and much controversy. For those who decide to make this odyssey, it will prove to be an intriguing journey.

Notes

[1] A survey in 1988 by the Council of State Governments revealed that seventeen states conduct some form of applicant drug testing. "Drug Testing State Employees," CSG Backgrounder Council of State Governments, Lexington, Kentucky, November 1988.

[2] When drug testing began in 1985, about 10-20% of the Correctional Officer applicants were testing positive. By 1989, this had declined to 1%

[3] Kevin Devilin, Linda Carroll and Keon Chi, "Drug Testing for State Government Employees," in Drug Testing: Protection for Society or a Violation of Civil Rights? (Lexington, Kentucky: National Association of State Personnel Executives and the Council of State Governments, 1987), pp. 61-7.

[4] National Treasury Employees Union v. VonRabb, 816 F. 2d 170 (5th Cir. 1987), affirmed by the U.S. Supreme Court, No. 86-1879, March 21, 1989.

[5] "Mandatory Guidelines for Federal Workplace Drug Testing Programs," Federal Register, V 01. 53, No. 69, April 11, 1988, p. 11979.

[6] David W. Hoyt, Robert E. Finnigan, Thomas Nee, Theodore F. Shultz and Thorne J. Butler, "Drug Testing in the Workplace -- Are the Methods Legally Defensible?", Journal of the American Medical Association, Vol. 58, July 24/31, 1987, p. 506.

[7] Ibid., p. 508.

[8] "Mandatory Guidelines," op. cit., p. 11983.

[9] Los Angeles Times, Oct. 27, 1986, pt. 1, p 21.

[10] Hoyt, op. cit., p. 507.

[11] Ibid., p. 509.

[12] Taylor v. O'Grady (669 F. Supp. 1422, N.D. Ill., 1987), p. 1430.

[13] "Mandatory Guidelines," op. cit. p. 11983.

[14] Gary H. Wimbish, "The Test That Failed?" In Drug Testing, op.cit. pp. 36-8.

[15] McCleod v. City of Detroit, 39 FEP Cases 225 (E.D. Mich., 1985).

[16] McGarvey v. District of Columbia 468 F. Suppl. 687 (D.D.C. 1979).

[17] NTEA v. VonRaab, op. cit.

[18] Eric Ostrov and James L. Cavanaugh, Jr., "Validation of Police Officer Recruit Candidates Self-Reported Drug Use., "Journal of Forensic Sciences, Vol. 32, No. 2 (March 1987) p. 501.

Jay P. Atwood is currently the Assistant Chief, Policy Division, California State Personnel Board. He received a BA from UCLA and MPA and CSU, Sacramento. He was an Adjunct Professor at Golden Gate University for 10 years. He has authored articles on public sector labor relations and position classification and a monograph on personnel interchange.

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