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AFGE, L-2110 v. DERWINSKI

July 31, 1991

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, L-2110, et al., Plaintiffs,
v.
EDWARD J. DERWINSKI, SECRETARY OF VETERANS AFFAIRS U.S. DEPARTMENT OF VETERANS AFFAIRS, et al., Defendants. JEFFREY HANSEN, et al., Plaintiffs, v. EDWARD J. DERWINSKI, SECRETARY OF VETERANS AFFAIRS U.S. DEPARTMENT OF VETERANS AFFAIRS, et al., Defendants.



The opinion of the court was delivered by: WILLIAM A. INGRAM

 These consolidated actions challenge and seek to enjoin the implementation of the testing components of the Veterans Administration Drug Free Workplace Plan adopted by the Veterans Administration, 53 Fed. Reg. 11970 (the "Plan") in response to the provisions of Executive Order 12564. 51 Fed. Reg. 32889.

 This court has previously granted preliminary injunctions restraining implementation of the Plan's testing provisions with respect to random, post-accident and reasonable suspicion testing. Now before the court are cross motions for summary judgment and defendants' motion to vacate preliminary injunctions.

 Each of the motions are GRANTED in part and DENIED in part, as hereinafter provided.

 There are six different categories of persons or situations which, under the Plan, can trigger urinalysis drug testing to discern the presence in the body of marijuana, cocaine, the opiates, the amphetamines and phencyclidine ("PCP"). These are random testing, reasonable-suspicion testing, post-accident testing, follow-up testing, applicant testing and voluntary testing.

 Plaintiffs in Action No. 88-20361 challenge random, post-accident, reasonable-suspicion and follow-up testing. Plaintiffs in Action No. 88-20357 and the intervenors challenge all types of testing.

 Plaintiffs in Action No. 88-20361 are five individuals: one physician; one pharmacist; one nurse; and two medical technician supervisors. Plaintiffs previously sought certification of a class. The motion was denied, largely upon the representation of defendants that the result with respect to the instant plaintiffs, who work at the Palo Alto and San Diego facilities of the Veterans Administration, will largely de facto determine the availability for testing of similarly situated employees within the agency. Plaintiffs in Action No. 88-20357 are labor unions: the American Federation of Government Employees; the Service Employees International Union; and the National Association of Government Employees. These unions represent on the order of more than 100,000 Veterans Administration employees. AFGE represents some professional, but mostly non-professional, employees including at least one member in each job classification which is non-managerial or non-supervisorial and is listed in Appendix A to the Plan. AFGE represents, in the words of declarant Charles Mintess "VA employees who will be subject to 'reasonable-suspicion' and 'accident or unsafe practice testing'." Declaration of C.S. Mintess. The Service Employees International Union represents over 10,000 Veterans Administration employees including persons who work as nurses and technicians and public safety and maintenance employees. Declaration of David Baker.

 RANDOM TESTING

 More than 90% of the Testing Designated Positions ("TDPs") designated under the Plan for random testing are medical positions alleged to be "safety-sensitive." The five plaintiffs in Action No. 88-20361 are: Jeffrey Hansen, Martin Hudson, Karen Russ, David Martin and Stephen Baird.

 Jeffrey Hansen is a Clinical Specialist Pharmacist, GS-12/8, at Veterans Administration Hospital, Palo Alto, California. At the time of the commencement of this action Mr. Hansen was a Pharmacist, GS-11/6. He is licensed in the states of Oregon and California. He is not a member of a union.

 At the time of initial hiring Mr. Hansen submitted to a physical examination, including urinalysis. No test for drugs was included in the urinalysis. He has not been required to take another physical examination since he was hired except for annual tuberculosis skin tests. He has never been questioned with respect to personal drug use, either at the time he was hired or since.

 Mr. Hansen has stated in his declaration of June 16, 1988, that "street" drugs, such as heroin or PCP are neither stored nor used at the hospital. All narcotic drugs stored at the hospital are kept under lock and key, and there is a detailed "sign-in and sign-out" procedure under which drugs are dispensed from storage. There are locked medication carts on each ward to which nurses have keys. Drugs which are dispensed from storage, but which are not used, are "wasted" in front of a witness.

 In his present position, Mr. Hansen works with a team of medical professionals, including physicians, nurses and other technicians, to develop treatment programs for individual patients. Hansen is aware of the job performance of other team members and they are aware of his performance. Declarations of Hansen: June 16, 1988; October 12, 1988.

 Karen Russ, R.N., is a regular full-time employee of the Veterans Administration Hospital in Palo Alto, California. She is a graduate nurse and has been licensed in California since 1982.

 Ms. Russ is not represented by any union. She commenced her employment as a regular part-time nurse in the Intensive Care Unit and subsequently became employed full-time in the Nursing Education Unit. Her job title as of November 14, 1990 was and has been since March 1989 Nursing Instructor, Gerontology. By Declaration dated November 14, 1990, Ms. Russ states that in her current job she does "occasionally perform services involving direct contact with patients when the hospital is short-staffed." Such activities occupy not more than five percent of her time. She has no access to narcotic. drugs. Her current position is classified as intermediate grade, step 5, Registered Nurse. She works at both the Palo Alto, California and Menlo Park, California facilities of the Veterans Administration. The latter facility furnishes extended care, psychiatric and drug rehabilitation functions.

 At the time of hiring Ms. Russ took a physical examination including urinalysis, which did not, she believes, include a drug test. She has never been questioned with respect to her personal use of drugs.

 Ms. Russ stated in her declaration of October 13, 1990 that there is an "extensive" sign-in and sign-out procedure at the hospital for the dispensing of drugs and a requirement that any unconsumed dispensed drug be "wasted" in the presence of a witness.

 In her present position, Ms. Russ does not handle medications or surgical instruments.

 Medical personnel work in teams and observe each other's job performance, and any impairment in an individual job performance is detectable. Declaration of Russ, October 13, 1990; Supplemental Declaration of Russ, November 14, 1990.

 David Martin is a regular full-time employee of the Veterans Administration Medical Center in San Diego, California, with an employment history with the Veterans Administration spanning fifteen years. His job classification is Medical Technologist GS-644. He is also Supervisor of Irregular Tours which covers the swing and graveyard shifts. He supervises six medical technologists in the Hematology, Blood Bank and Coagulation Departments of Laboratory Services. He is licensed by the State of California. He is not represented by any union.

 When hired, Mr. Martin was given a physical examination including urinalysis, which did not, to his knowledge, cover testing for drugs. He has never been questioned about drug use. Since employment he has not been required to take further physical examinations, except for an annual tuberculosis skin test.

 In his work he has no contact with narcotics or other drugs. Declaration of Martin, June 15, 1988.

 Stephen Baird, M.D., is a physician and a regular, full-time employee of the Veterans Administration Medical Center, San Diego, California. He is Chief of Laboratory Services and head of the Hematology Division at the Medical Center. His job classification is Chief, GS-15. He is a pathologist licensed to practice in California, and has been certified by the American Board of Pathology. He has been certified in clinical and in anatomical pathology. He is not a member of any union.

 A decline in performance such as a high rate of errors in results or failures to follow laboratory procedures are the subject of continuous documentation and review, as is poor performance which poses any threat to a patient. The Laboratory Division of which he is Chief includes the departments of Hematology, Blood Donor, Blood Bank, Microbiology, Surgical Pathology, Autopsy Pathology, Cytology, Immunology and Virology and Microscopy.

 Dr. Baird was given a physical examination at the time of initial performance, and none since. He has never been questioned about drug use.

 Declarations of Baird dated June 15, 1988 and October 12, 1990.

 Martin Hudson is a regular employee of the Veterans Administration Hospital in Palo Alto, California, where he is a supervisor of the Dialysis Unit. He supervises the work of four dialysis technicians. As supervisor he hires, trains and supervises the technicians who perform the dialysis functions. He is on the Dialysis Unit constantly while at work and observes the work of the technicians whom he supervises. Also on the unit are a Renal Fellow, a resident physician or a medical student and the physician who is the director of the dialysis program. Patient treatment lasts three hours per treatment and requires monitoring of the dialysis instrument and of the patient's blood pressure. The dialysis machines are self-monitoring, in the sense that they emit visible and audible warnings when some mechanical problem arises. Technicians are also supervised by a charge nurse. All technicians have direct patient contact for a week at a time. When not so assigned, they maintain the machines, do lab work and order supplies.

 Each of those five named plaintiffs in Action No. 88-20361 are alleged to be occupants of "safety-sensitive" positions and therefore to be subject to random testing. Those plaintiffs occupy positions which are listed within Categories I and II (Health Care Employees) in the Veterans Administration's compilation of safety-sensitive TDPs. Sixth Declaration of Egan, first attachment.

 Plaintiff unions, in Action No. 88-20357, are alleged to represent at least one person within each of the remaining categories on that compilation. Those categories are:

 III. Law Enforcement/Protection of Life and Property Employees.

 IV. Other Public Safety Employees, Including Safety Engineer, Motor Vehicle Operator, Electrician (and several classifications of mechanics).

 Thus all of "safety-sensitive" positions to be subject to random testing are alleged to be subject to the compelling, governmental interest of public safety, and as such require a showing of a direct nexus between the duties of each position so described and the nature of the feared violation. Harmon v. Thornburgh, 278 App. D.C. 382, 878 F.2d 484 (D.C. Cir. 1989), cert. denied, 493 U.S. 1056, 110 S. Ct. 865, 107 L. Ed. 2d 949 (1990).

 Aside from the declarations of the five plaintiffs in Action No. 88-20361, Responses to Second Set of Written Interrogatories, and to some extent the Declarations of Turnage and Egan, there is no evidence before the court which is descriptive of job duties in the relevant health care employees category other than Appendix A to the Drug Free Workplace Plan of the Veterans Administration dated October 15, 1987, which was modified in some particulars by the recent approval by the Secretary of Veterans Affairs of recommended modifications submitted by the VA Drug Free Workplace Task Force on October 10, 1990. See Fourth and Sixth Declarations of Egan.

 The court must individually examine each of the safety-sensitive positions with a view to the determination of the requisite nexus, and in the context of compelling government need as compared with employee expectation of privacy.

 The court has examined the Declarations of Sidney H. Schnoll, M.D., Ph.D. and the Declaration of Martha R. Harkey, Ph.D., each of which expresses the opinion that urine drug testing is an ineffective and inaccurate method of screening employees for drug abuse, is overbroad, and that the method of testing proposed by the Veterans Administration is not in accordance with accepted medical principles, and will not reveal whether or not a tested person is impaired by the ingestion of drugs.

 The failure of a given test to measure actual employee impairment is not fatal to the propriety of its use. Skinner v. Railway Labor Executives' Ass'n., 489 U.S. 602, 103 L. Ed. 2d 639 , 109 S. Ct. 1402 (1989); American Fed'n. of Gov't Employees v. Skinner, 885 F.2d 884 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 1960 (1990).

 It is clear to the court that all of the named plaintiff health care professionals in Action No. 88-20361 have active patient care responsibilities, either directly or in the providing of necessary diagnostic or therapeutic care to patients. Ms. Russ devotes only five percent or less of her time to patient care and the rest of her time to instructional duties in the field of gerontology, but five percent is a significant portion of time considering the importance of the care then rendered.

 The court finds that the nexus requirement articulated by Harmon v. Thornburgh, 278 App. D.C. 382, 878 F.2d 484, is fulfilled in the case of health professionals who are responsible for direct patient care, either with direct patient contact or in the performance of diagnostic testing or therapeutic functions or the preparation and dissemination of drugs and medicines. Even momentary lapses could cause serious consequences, or at a minimum, if undiscerned, might subject a patient to procedures which would not have otherwise been indicated.

 Because required drug testing implicates fourth amendment interests, Bluestein v. Skinner, 908 F.2d 451 (9th Cir. 1990), cert. denied, 112 L. Ed. 2d 1042, 111 S. Ct. 954 (1991); Teamsters, 932 F.2d 1292, the reasonableness of the intrusion must be determined by balancing the Agency's interest in conducting the test against the Agency employee's expectation of privacy. Neither individualized suspicion of the persons to be tested nor the identification of a pre-existing "drug problem" within the Agency are necessary factors. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 103 L. Ed. 2d 685 , 109 S. Ct. 1384 , (1989); Bluestein, 908 F.2d 451; Teamsters, 932 F.2d 1292.

 The compelling force of the governmental interest in the conduct of a testing program is measured by whether the interest in question falls within one or more of three specific governmental interests: (1) maintaining the integrity of workers in executing their essential mission; (2) enhancing public safety; and (3) protecting "truly sensitive" information. Harmon, 278 App. D.C. 382, 878 F.2d 484; American Fed'n. of Gov't. Employees v. Cheney, 754 F. Supp. 1409 (N.D. Cal. 1990)

 In the case of the five named plaintiffs in Action No. 58-20361, it appears to the court that those plaintiffs, all regulated licentiates within their respective professional groups, are of legitimate and compelling concern to defendants. The maintenance of professional and personal integrity in the execution of their mission, the care and treatment of inpatients and outpatients, is of compelling concern. The paramount consideration of safety of members of the public who are eligible to use Veterans Administration hospitals and facilities is apparent on its face. Hospitals must exist for precisely that purpose. The gravity of the responsibilities of such medical professionals is at least as great as that of locomotive engineers, flight attendants, and pipeline workers, and the risks associated with drug-impaired performance equally catastrophic.

 Random drug testing, as compared with other forms of testing, offers the best potential deterrent to drug use. This factor, coupled with the possibility of catastrophic accident, is sufficient to show ...


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