Loder v. City of Glendale
| Decision Date | 26 September 1994 |
| Docket Number | No. B069565,B069565 |
| Citation | 28 Cal.App.4th 796,34 Cal.Rptr.2d 94 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 28 Cal.App.4th 796, 33 Cal.App.4th 874, 38 Cal.App.4th 695, 42 Cal.App.4th 1383, 47 Cal.App.4th 592 28 Cal.App.4th 796, 33 Cal.App.4th 874, 38 Cal.App.4th 695, 42 Cal.App.4th 1383, 47 Cal.App.4th 592, 9 IER Cases 1673, 9 A.D.D. 728 Lorraine LODER, Plaintiff and Appellant, v. CITY of GLENDALE et al., Defendants and Appellants. |
In 1985 and 1986, City's personnel department noted an increase in the number of employee disciplinary cases in which substance abuse was a significant factor and an increase in voluntary referrals of substance abuse cases. A pilot program was instituted which involved drug testing of candidates who were being considered for final appointment. That program revealed a failure rate of 21 percent. 1
On April 23, 1986, the City adopted a drug and alcohol screening program pursuant to which every job applicant and every employee seeking a promotion was tested, without regard to the position sought and without reason to suspect use or abuse of drugs. In support of this policy, the City created a "justification" for each and every employee position in the city including clerical workers, library workers, engineers, professional staff, managers and supervisors.
Pursuant to this program, job and promotional applicants are requested to sign a written consent for medical examination. The form includes a place to list all medications and drugs being taken at the time. Applicants who refuse to sign the consent form are medically disqualified and advised that the disqualification will remain in effect for the applicant's entire period of eligibility for the job. Those who consent are subjected to a medical examination which includes the collection of a urine sample.
The procedure for collecting the sample begins with the breaking of a seal on an empty sterile container which is then given to the applicant. A medical representative accompanies the applicant, who is garbed in a hospital gown, to the restroom. The medical representative stands in a cubicle next to the applicant. There is no direct visual observation of the applicant urinating. To prevent fraud, blue water is used in the toilet bowls and the temperature of the urine sample is tested. If the urine is cold, the applicant is requested to provide another sample.
A "dipstick" test is used to determine whether there is any blood, sugar or protein in the urine, after which the container is sealed. A certified laboratory tests the urine, using an enzyme immunoassay (EMIT) test, for amphetamines and methamphetamines (including speed and crystal), benzodiazepines (including Valium, Librium, Oxazepam, Serex, Dalmine), barbiturates (including Amobarbital, Butabarbital, Pentobarbital, Phenobarbital, Secobarbital), cocaine, methadone, methaqualone (i.e., Quaalude), opiates (including codeine, heroin, morphine, hydromorphone, hydrocodone), PCP, marijuana and alcohol. A positive test is confirmed by gas chromatography/mass spectrophotometry (GCMS).
If the test reveals the presence of drugs for which the applicant has no legitimate medical reason, the applicant is disqualified. A disqualified job applicant is ineligible for the period during which the job is offered or until other openings occur. A disqualified promotional applicant is referred to a mandatory assistance program which includes group counseling and a wide variety of educational programs. Disqualified applicants may appeal to the Glendale Civil Service Commission.
All positive test samples are retained by the laboratory for 12 months to allow for retesting at the direction of the Civil Service Commission or the request of the applicant. Upon the applicant's request, the retesting is limited to gas chromatography at one of three laboratories. The applicant must agree the results may be released to the City's personnel division. If the second test is also positive, the applicant's appeal may be denied or the Civil Service Commission may subject the original sample to a test conducted by another qualified laboratory. If the third test is negative, a doctor who conducts medical exams for the City recommends qualification or disqualification to the Civil Service Commission.
Chain of custody procedures begin with the signing of a chain of custody form by the applicant and the medical representative at the time the sample is collected. This form is placed in a special laboratory envelope along with the sample. The envelope is picked up by the laboratory, which examines the sealed sample for signs of tampering and assigns a serial number to avoid individual identification. During the time the sample is in the possession of the laboratory a positive chain of custody is kept at all times and the laboratory is secured by magnetically controlled doors. If a specimen screens positive, a portion of the sample is assigned a separate chain of custody for gas chromatography/mass spectrophotometry confirmation. Following this analysis, a scientist reviews the chain of custody information and certifies the report, which is then sent to the physician. If an applicant files an appeal, the specimen is shipped under strict chain of custody procedures to a selected laboratory for testing.
It is the city's position that "Each and every job in the City of Glendale ... affects the public health, safety, welfare, benefits, morals or fisc," and 56 of the City's job categories involve the immediate safety of the employee or others. 2 Each year approximately six of City's 1,650 employees are involved in its Employee Assistance Program due to substance abuse problems. This costs the City approximately $90,000 per year. It also creates morale problems for other employees and results in decreased productivity.
The trial court found the City had a compelling interest in conducting drug testing, and a compelling need for information on drug use in light of its showing of an existing problem of employee drug abuse. After balancing (as to each and every job category) the privacy interests against the government interest, the trial court concluded that employee testing was justified in the absence of individualized suspicion, but not as to all job categories.
The court sustained drug testing for the following categories: police department personnel, community service officer, jail administrator, police department helicopter mechanic, identification technicians, records and identification administrator of the police department, clerical staff of the police department, fire department personnel, fire department clerical personnel, shop superintendent for civic center garage, equipment mechanic and senior equipment mechanic, service worker, mechanic helper, electrical services construction personnel, electrical dispatch center personnel, electrical engineering personnel, senior building repairer and building repairers, facilities maintenance personnel, street and field services administration personnel and operations personnel, integrated waste management personnel, mechanical maintenance superintendent and supervisor, sanitation truck operators and workers, equipment welder, mechanic and mechanic helper, service worker, storekeeper and janitor, reprographics administrator, duplicating machine operator, duplicating shop operator, power plant personnel, director of public service, water services engineering personnel, water services operations personnel, equipment operator II and water systems helper, health services administrator and administrative assistant, permit services personnel, building inspectors, city engineer's office, traffic and transportation personnel, parks, recreation and community services (with the exception of certain employees), seasonal laborer, pesticide applicator, equipment operator, gardeners, maintenance workers, park ranger, lifeguards, data services personnel, customer services administrator, supervisor, field representative and conservation personnel, community development and housing personnel, finance and administrative services professional personnel, city treasurer clerical personnel, finance and administrative services clerical personnel, and parking meter collector.
The trial court enjoined the drug testing program in the absence of reasonable grounds for individualized suspicion of illicit drug involvement, as to custodial personnel,...
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