SAFETY-SENSITIVE JOBS KEY TO DRUG TEST DEBATE

Kanawha County school officials can expect heated opposition on
several fronts as they again consider whether to test employees for drugs.

Local teachers unions and the state American Civil Liberties Union
have fought the Board of Education's efforts to pass a drug policy.
Opponents quote legal arguments, stating why they believe courts
would strike down random testing and other types of "suspicion-less" inquiry.

"Fine. Let's go at it," board member Pete Thaw said Tuesday. He has
strongly supported random testing, saying educators charged with
possessing cocaine, marijuana and other illicit drugs should not be
around children.

School board general counsel Jim Withrow is helping to draft the
newest policy. He expects a proposal for board members to weigh by
mid-September, and possibly earlier. County administrators reached no
conclusions on a new draft at a Monday meeting, he said.

Board members have only two regular meetings between now and Sept.
20, where they would most likely take up the first reading of a new policy.

The public would probably have 30 days to comment after board members
approved a draft, Withrow said.

"I want something certainly [before school starts]," Thaw said.

At a meeting July 23, board members heard from representatives of Dow
Chemicals, BB&T and Bayer about their drug-testing policies.

Based on their advice, several school officials now believe random
drug testing is back on the table, if it is handled carefully. That
includes Withrow, Superintendent Ron Duerring and board members Bill
Raglin and Jim Crawford.

Previously, only Thaw was adamant that random testing should be a
staple of a new drug policy. That night, he said, "the sun started to come up."

Fred Albert, president of the American Federation of
Teachers-Kanawha, gave board members a letter July 26 from a local
attorney which argues that the state Supreme Court protects employees
from random drug testing based on Twigg v. Hercules Corp., a case from 1990.

Lawyer Jeffrey Blaydes wrote that the court recognizes a "fundamental
right to privacy." He adds that, "as a general rule ... it is against
the public policy of this state for an employer to mandate that an
employee submit to drug screens."

The justices made two exceptions in Twigg.

The first allows for testing if an employer has a reasonable,
good-faith suspicion that his employee is using drugs.

"We've never had a problem with testing people for reasonable cause,"
Albert said Tuesday.

The second is where the debate lies. The court's justices said drug
testing is not banned when an employee's job responsibility involves
public safety or the safety of others. The question is, which school
employees are in a safety-sensitive position?

Duerring has said that question is crucial to drafting a new policy.

Teachers are the big "if," as the county school leaders already allow
"for cause" testing of bus drivers, mechanics and some other employees.

"We would contest that in [court]," Albert said. "It would have to be
more clearly defined if [teachers] do have safety-sensitive jobs."

Thaw believes there's no question. "I'm sure that the courts will
decide that teachers are safety-sensitive," he said, calling children
our "most precious commodity."

Andrew Schneider, executive director of the ACLU of West Virginia,
said his office is waiting to see how the revised policy shakes out.
Schneider opposed the board's first look-see at a drug policy in March.

Like Albert, Schneider said such a small number of Kanawha school
employees have been charged with drug-related crimes that "they're
creating a problem where none exists."

"I think with suspicion-less testing you're throwing up this dragnet
. where so many innocent people are caught up in this," Schneider said.