Cases in Business & SocietyWorkplace Drug Testing

By Jessica Pierce

Joe is an ideal employee. He comes to work on time, with a good attitude, and ready to tackle a new day, each day. He is smart and hard-working. He is also personable, works well with others, and, unlike far too many in the office, doesn't engage in gossip or behind-the-back politics. The boss likes him and respects his contributions to the company. Today, however, there is a problem. When he opens his email, he finds waiting for him a request to report to the company Health Office for a random drug test. He hadn't even been aware that the company did drug testing.

He wondered, in fact, if it was even legal. He is angry, and also worried. Occasionally on Friday or Saturday nights, if he and his wife don't have plans with friends, they will stay home and smoke marijuana. They both find smoking marijuana to be extremely relaxing and when they get high they have the most marvelous conversations.

They usually talk about their inner lives, and both find that being high gives them spiritual insight. Joe doesn't know a lot about drug testing, since he's never really worried about it. But he remembers a friend saying something about how even trying a drug once can get you in trouble because the drug can be detected in your urine for a long time.

Background

In 1988, as part of the "war on drugs," President Reagan signed into law the Drug-Free Workplace Act. This legislation aimed to create a drug-free federal workforce through workplace drug testing combined with drug awareness and treatment programs.

Under the law, all federal employees were required to refrain from using illegal drugs, whether on or off duty. Private sector employers followed the government's lead and began instituting drug testing programs both for job applicants as well as current employees. Since the late 80s, private sector drug testing has seen steady increase, with more than half-and up to 80%, according to some surveys-of all companies now reporting some kind of drug testing program.

Advocates for civil liberties are none too happy about these trends. They see employee drug testing becoming an increasingly serious invasion of personal liberties and are actively seeking to shape legislation that will protect civil liberties at the workplace.

About drug testing

A drug test involves the analysis of a person's urine, blood, hair, sweat or saliva to measure the presence of "metabolites"- small molecules that are a product of the body's metabolism. Metabolites provide a kind of "paper trail" of what substances have been ingested over a certain period of time (different drugs will metabolize at different rates). If you smoked marijuana on Friday night, your urine will still contain marijuana metabolites on Monday morning, even though the physical effects of the drug have long worn off.

Urinalysis is the most common type of drug test in the workplace. Although it is less accurate than blood tests, it is also less invasive and less costly. Most urine specimens will be collected in a "dry room," a room without water or other substances that could be used to dilute a urine specimen, or a bathroom with the water faucets off and with colored toilet water. Typically, employees might be asked to change into a gown-open in the back, so that they can't smuggle in a fake specimen. Sometimes, employees must change clothes and urinate in the presence of a witness. The specimen then goes to a lab (on site or off) for analysis. If an initial screening is positive, the specimen is usually retested.

Hair analysis has the advantage over urine tests that it can reveal a history of drug use, especially heavy or continuous use of drugs. Yet it won't reveal recent use, since hair grows so slowly. Hair analysis is fairly accurate, and providing a hair sample is considered less invasive and embarrassing than urinating in a cup. Saliva and sweat tests are both noninvasive and fairly accurate, but are not yet widely used.

There is variability in what substances an employer will test for and what measure of metabolites will constitute a positive result. The drugs most commonly tested for are amphetamines (speed, ecstasy, methamphetamine), cannabinoids (hash and marijuana), cocaine, opiates (heroine, morphine, codeine, opium) and phencyclidine (PCP). Most of the so-called "club drugs" such as Rohypnol, mushrooms, and GHB are not included as part of a drug test. Very few drug testing programs screen for alcohol use.

There are several kinds of drug testing programs. Some companies institute preemployment testing: part of your job application includes a mandatory drug test. Other companies test current employees. Scheduling of tests can be random (unannounced), comprehensive (e.g., as

part of a yearly physical exam; or at a certain time for all employees), or by reasonable cause. Testing programs are generally part of a more comprehensive program to address substance abuse; usually a company has a written policy and an employee assistance program.

Companies that do drug testing tend to share certain characteristics. The larger the company, the more likely it has a drug testing program. The manufacturing, gas and electric utilities, transportation, communications industries are significantly more likely to have drug testing programs than are banking, insurance, and other financial service industries. Worksites with a large percentage of unionized employees are also most likely to have a drug testing program

(Hartwell et al.).

What happens to those who fail drug tests is largely dependent on where they work. Some companies have zero-tolerance policies and will fire or refuse to hire anyone with a positive drug test. Other companies are more lenient, and might request that an employee with a positive test undergo drug treatment or counseling through an employee assistance program.

Arguments for drug testing

Those who support drug testing offer several arguments. First is the relatively large number of employees who are illicit drug users. According to government statistics, the number of employed adults classified as "illicit drug users" (defined as someone who used an illicit drug during the month prior to a survey interview) is somewhere on the order of 12.3 million - roughly 7% of the adult workforce (SAMSHA). Industry statistics place the numbers even higher: more than 25% of full-time employees between the ages of 18-25 are drug users, and about 18% of those aged 26-34. The problems caused by employee drug use include absenteeism, poor performance, accidents, low productivity, and more costly use of medical benefits (Cook, Bernstein, and Andrews).

Employers have a right to sober employees, especially where quality or safety is at issue. After all, employers have legal responsibilities to the public and to consumers, and can be held liable for accidents, mistakes, or unsafe products. Employers also have an interest in making sure that

employees are not engaging in illegal activities at work. Finally, employers should be concerned with activities that impact performance in a measurable way, since employees are hired and paid to perform certain tasks at certain levels of competence.

Problems with drug testing

The central concern is privacy. Both the taking of the sample and the analysis of the sample are an invasion of privacy. Often there is another person present while an employee urinates in a cup or an employee might be asked to remove most of his or her cloths while under observation. Analysis of person's urine reveals not only the presence of drugs, but also other private information: for example, pregnancy or the presence of prescription drugs. During pre-employment testing, the information that an applicant is pregnant or is taking medication for Parkinson's disease could certainly lead employers to pass them over for other applicants.

Drug tests are not a measure of current intoxication; rather, they test whether drugs have been used at some time in the past. This has little relation to people's employment. It is no business of your employer if you get high at a party on Friday night, and come to work totally sober Monday morning. People are not required to organize their lives so that productivity at work is

maximized. Employers have no legitimate interest in what people do in their off time whether they engage in high risk sports, stay up all night watching movies, engage in dysfunctional relationships, or make recreational use of drugs, legal or illegal.

Opponents of testing concede that in occupations where safety is key (school bus driver, heavy machinery operator, train engineer) impaired employees are a risk. Yet drugs are not the only cause of impaired performance: fatigue, illness, and distraction can be just as dangerous as intoxication. A performance test (like those used at NASA for astronauts) that measures response time, hand-eye coordination, and motor control may offer more in the way of safety than a drug test.

There are also technical problems with drug tests. False positives do occur and sometimes the tests fail to distinguish between legal and illegal substances. For example, Sudafed will s sometimes show up as an amphetamine, ibuprofen can cause a positive marijuana test, and poppy seeds and Tylenol PM can produce a positive opioids test.

Legal guidelines

The legal landscape of drug testing is evolving and at this point is rather confused. Since most states sanction some kind of workplace drug testing, the vast majority of private employers have the right to test employees or prospective employees for a range of illegal substances. State laws vary considerably, with some prohibiting random searches, others putting certain limits on testing, and still others allowing completely random drug testing at the workplace.

Under current law, non-unionized companies are permitted to test for drugs. In unorganized workforces, testing programs must be negotiated and disciplinary protocol negotiated.

Employers are responsible for safety of the public and their customers, and have a legitimate interest in a safe, productive workforce. At the same time, people have a constitutional right to privacy (First Amendment) and a right (under the Fourth Amendment) to be free from unreasonable search (and urine testing is legally considered a "search").

Answer the following questions

1. Neither the company, nor Joe's boss, has suspected Joe of drug use. The company has simply implemented a blanket policy. Is it fair for high-quality employees like Joe to be subjected to a

random drug test?

2. Is there a morally relevant difference between random drug testing and comprehensive testing? Is there a morally relevant difference between pre-employment drug testing and testing once employed?

3. Is it immoral to use drugs like marijuana or cocaine during off-work hours?

4. Does an employer have a legitimate interest in whether an employee uses drugs, if the drug use is on the employee's own time?

5. Is there a morally relevant difference between the types of drugs for which an employee may test positive? What would you do if an employee tested positive for marijuana? What about crack?