 [62] TALK.POLITICS.DRUGS (1:375/48)  TALK.POLITICS.DRUGS 
 Msg  : #2947 [200]                                                             
 From : William December Starr              1:2613/335      Thu 11 Aug 94 16:07 
 To   : All                                                                     
 Subj : Massachusetts Supreme Judicial Court Rules on Employee Testing          

From: wdstarr@crl.com (William December Starr)
Organization: CRL Dialup Internet Access

Basically, a split decision -- private employers in Massachusetts _can_
perform random drug testing on employees whose job functions are
directly safety-related but _cannot_ perform it upon other employees.
The source for this ruling is neither the federal or state constitutions
but rather a part of state law (which, of course, can be altered,
amended or repealed by the state legislature...).

The following is excerpted from an article headlined "SJC Sets Rules For
Drug Testing Workers" (not the greatest of headlines, since it could
mean "the drug testing of workers" or "workers who do drug testing," but
I digress...), by Paul J. Martinek on page 1 of the August 1, 1994,
"Mass. Lawyers Weekly" ("Cite this page 22 M.L.W. 2401"):

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   The Supreme Judicial Court [the highest court in the state, pun
unavoidable -- wds] has for the first time set rules for when private
employees may be subject to random drug testing.

   The court said that the editor of technical manuals for an
electronics manufacturer could not be tested because he had a right to
privacy under G.L. c. 214 [Chapter 214 of the Massachusetts General
Laws, generally known as the "Massachusetts Privacy Act -- wds] that
outweighed the company's safety concerns.

   The employer's general interest in providing a drug-free environment
was not a sufficient reason itself to justify random drug testing of
employees, the SJC noted.

   But the SJC ruled that the company could test a salesman whose job
required him to drive a company-owned vehicle 20,000 to 25,000 miles per
year.

   "Although [the editor's] job duties are such that errors could
possible result in harm to human health and safety or to national
security, the trial judge rightly determined that 'the nexus between his
job duties and the harms feared is attenuated,'" Justice Joseph R. Nolan
wrote.

   In contrast, the employer had legitimate concerns over safety,
liability and the protection of corporate property that justified
testing the salesman, Nolan said.

   The case is _Webster, et al. v. Motorola, Inc., et al._, Lawyers
Weekly No. 10-160-94.  [There will eventually be a "real" cite to the
Massachusetts Reporter (e.g., "123 Mass. 456"), but the court decision
hadn't been formally published as of this article's press time. -- wds]

   Donald A. Hoffman of Boston, who represented the plaintiffs, said
this was an important civil liberties case.  "Up till this decision, it
was clear that both the federal and state constitutions limit the extent
to which random drug testing can be done by government employers,"
Hoffman said.  "Until _Webster_, it was not clear whether private
employers could engage in random drug testing."

   As a result of the decision, employers "have to look at the specific
job duties of each employee that they want to test to see if the safety
risks or other special risks outweigh the intrusiveness of requiring a
urine specimen."

   Hoffman noted that a lot of employees are currently doing drug
testing and that the SJC's reasoning could have implications for other
forms of employee testing, including "one of the areas that employers
are beginning to think about, psychological testing."

   Defense Counsel Paul E. Nemser of Boston declined comment, citing his
client's wishes.

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