Urinalysis rule changes coming in wake of ACLU lawsuit

HILO — After being sued for requiring drug tests of prospective employees, the Hawaii County Department of Human Resources is changing its rules and modifying which successful applicants will be screened for drug use before being hired.

The department has scheduled a public hearing for 3 p.m. Jan. 19 in County Council chambers in Hilo for input into the rule changes, which can be found at www.hawaiicounty.gov/human-resources/

The change removes two provisions: one that requires a prospective employee to pass a pre-employment controlled substance drug test, and one that requires the employee to attest that during the previous three years the prospective employee was not convicted of any controlled substance-related offense.

The county, however, will continue screening employees defined as “safety-sensitive,” such as police officers, and positions regulated by the federal Department of Transportation. That’s about 3 percent of county employees.

“Our rules are periodically reviewed and updated as necessary,” county HR Director Sharon Toriano said Monday.

Hawaii County settled a lawsuit in September after being sued by the American Civil Liberties Union. The lawsuit, on behalf of Rebekah Taylor-Failor, who moved from Oregon to Kona to accept a job as a legal clerk in the county Prosecutor’s Office, settled after the county agreed to change its policies and pay $115,000 in attorneys’ fees and costs.

The federal lawsuit had been filed in March on behalf of Taylor-Failor by the ACLU and the law firm of Peiffer Rosca Wolf Abdullah Kane &Carr. Kauai has also recently changed its rules in response to the Hawaii County lawsuit, but Maui, which has similar rules, has not.

“Kauai voluntarily changed its rules to be consistent with those on the Big Island. I wish it had happened earlier. But we are very pleased that they are respecting the rights of their employees,” Adam Wolf, in the firm’s San Francisco office, said Monday. “Unfortunately, Maui is taking the opposite approach and has dug in its heels, much to the detriment of its employees and its residents.”

Toriano acknowledged that the latest rule changes were spurred by the lawsuit settlement, adding that the county has already changed its procedures to comply with the settlement.

After giving Taylor-Failor a conditional job offer, the county required her to complete a detailed, personal questionnaire about her medical history and give a urine sample for analysis. Hawaii County required the screenings of all its prospective employees.

The lawsuit challenged the county’s requirement that all prospective employees submit to urinalysis and answer questions about medical history, regardless of the physical duties the applicant would perform on the job.

The ACLU argued urinalysis testing reveals sensitive private medical information — such as whether an individual is diabetic, pregnant, is biologically male or female, has high cholesterol, or has a sexually transmitted disease — and that the tests were not related to actual job requirements of a particular occupation.

The federal court noted in its order granting a temporary restraining order that “the county has proffered no explanation as to why it is entitled to search Taylor-Failor’s urine before she may begin employment in her light duty, clerical, non-safety-sensitive position. … Employment requirements cannot stand where they violate rights of a constitutional dimension.”

“The district court was very clear that Hawaii County’s former rules were quite obviously unconstitutional,” Wolfe said.

Government employees are a significant part of the Hawaii County economy. A full 20 percent of the county’s 63,500 non-agricultural workforce in 2014 worked for federal, state or county government. Of those, 2,700, about 4.25 percent of workers, worked for county government, according to the Hawaii State Department of Labor and Industrial Relations.