INTRODUCTION TO DRUG TESTING IN THE WORKPLACE
“The impairment of individual liberties cannot be the means of making a point . . . symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search.”
These words, spoken by U.S. Supreme Court Justice Scalia in his dissenting opinion in National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), underline the importance of rejecting random drug testing of employees to combat the drug problem facing this nation. But unfortunately, suspicionless drug testing of employees, especially in the private sector, has been steadily growing since 1986. According to a recent survey of 1,000 companies performed by the American Management Association, 51.5% of the respondents engaged in some form of drug testing, representing a net increase of 140% since 1987.1 In spite of the serious consequences that can flow from this increasingly widespread practice’loss of privacy, damage to reputation, unemployment, emotional distress’drug testing in the private sector workplace is virtually unregulated. Only a handful of states has enacted protective legislation. In the vast majority of jurisdictions, private employers are free to test anyone for any reason, or for no reason at all.
There are more effective, constitutional ways to address substance abuse in the workplace, including education and treatment of employees. Already, the growing awareness of health concerns, and drug education and prevention programs have contributed to a decline in drug use in this country. Drug usage peaked in 1979 and has been falling steadily ever since.2 Americans using drugs at least once a month fell 37 percent between 1985 and 1988.3
Indiscriminate drug testing is both unfair and unnecessary. It is unfair to force workers who are not even suspected of using drugs, and whose job performance is satisfactory, to “prove” their innocence through a degrading and uncertain procedure that violates personal privacy. Such tests are unnecessary because they cannot detect impairment and, thus, in no way enhance an employer’s ability to evaluate or predict job performance. In jobs where impairment of performance might directly affect safety and where employees work away from supervision, easy to use tests which actually measure impairment are available to employers.
IF YOU DON’T USE DRUGS, YOU HAVE NOTHING TO HIDE — SO WHY OBJECT TO TESTING?
Drug testing allows employers to intrude upon the private lives of their employees. The “right to be left alone” is, in the words of the late Supreme Court Justice Louis Brandeis, “the most comprehensive of rights and the right most valued by civilized men.” Both the actual taking of urine samples and the analysis of the sample, which may disclose private information, violate this right to be left alone.
As stated by the Court of Appeals for the Fifth Circuit, “there are few activities in our society more personal or private than the passing of urine.”4 The drug testing process subjects individuals to an offensive and degrading process. Some employers even require the employee to strip and urinate into a cup in the presence of an observer in order to prevent cheating.
In addition, analysis of a person’s urine can disclose many details about that person’s private life other than drug use, including personal medical information. It can tell an employer whether an employee or job applicant is being treated for a heart condition, depression, epilepsy or diabetes. It can also reveal whether an employee is pregnant. Drug testing may “provide employers with a periscope through which they can peer into an individual’s behavior in her private life, even in her own home. . . .”5 For all of these reasons, the Supreme Court has found that urine testing, like blood testing, constitutes a search under the Fourth Amendment.6
DON’T EMPLOYERS HAVE THE RIGHT TO RUN A SAFE AND PRODUCTIVE WORKPLACE?
Of course they do. If employees cannot do the work, employers have a legitimate reason for disciplining or dismissing them. But drug tests do not measure job performance. Even a confirmed “positive” provides no evidence of present intoxication or impairment; it merely indicates that a person may have taken a drug at some time in the past.
Urine tests cannot determine when a drug was used. They can only detect the “metabolites,” or inactive, leftover traces of previously ingested substances. Drug testing can detect marijuana that was consumed even weeks before the test date. For example, an employee who smokes marijuana on a Saturday night may test positive the following Monday, long after the drug has ceased to have any effect. In that case, what the employee did on Saturday has nothing to do with his or her fitness to work on Monday. At the same time, a worker can snort cocaine on the way to work and test negative that same morning. That is because the cocaine has not yet been metabolized and will, therefore, not show up in the person’s urine.
ARE DRUG TESTS RELIABLE?
No, the drug screens used by most companies are not always reliable. Commonly used drug tests yield false positive results at least 10 percent, and possibly as much as 30 percent, of the time.7
Unreliability also stems from the tendency of drug screens to confuse similar chemical compounds. For example, codeine and Vicks Formula 44-M have been known to produce positive results for heroin, Advil for marijuana, and Nyquil for amphetamines. Other substances known to cause false positives include Nuprin, Contac, Sudafed, certain herbal teas and poppy seeds.8
Although more accurate tests are available, they are expensive and infrequently used. And even the more accurate tests can yield inaccurate results due to laboratory error. In October, 1990, the National Institute on Drug Abuse launched an investigation into the widely used federal drug testing procedure after learning that a government-certified laboratory incorrectly reported workers had tested positive for illegal methamphetamine when in fact they had been using over-the-counter cold or asthma medicines.9
STILL, ISN’T UNIVERSAL TESTING THE BEST WAY TO CATCH DRUG USERS?
Perhaps, but it is also the most un-American way. Americans have traditionally believed that general searches of innocent people are unfair. This tradition began in colonial times, when King George’s soldiers searched everyone indiscriminately in order to uncover those few people who were committing offenses against the Crown. Early Americans deeply hated these general searches.
After the Revolution, when memories of the experience with warrantless searches were still fresh, the Fourth Amendment was adopted. It says that the government cannot search everyone to find the few who might be guilty of an offense. Before a personal search can take place, the government must have good reason to suspect the person is concealing something illegal. The same rights to privacy and bodily integrity ought to be extended to private sector employees as well.
Furthermore, there is no scientific evidence whatsoever that drug testing programs deter, prevent, or treat drug abuse. Drug use is a complex problem, and drug testing has been introduced as an unproven and probably unrealistic quick fix.10 According to the American Society for Clinical Pharmacology, “adequate scientific studies of the relationship among safety, productivity, drugs of abuse and testing of urine aren’t available or haven’t been done.”11
DRUG USE COSTS INDUSTRY MILLIONS OF DOLLARS IN LOST WORKER PRODUCTIVITY EACH YEAR. DON’T EMPLOYERS HAVE A RIGHT TO TEST AS A WAY OF PROTECTING THEIR INVESTMENT?
Actually, there are no clear estimates of the economic costs to industry resulting from drug use by workers. Proponents of drug testing claim the costs are high, but they have been hard pressed to translate that claim into real figures.12 And some who make such claims are manufacturers of drug tests, who obviously stand to profit from industry-wide urinalysis. A 1990 study by the U.S. Department of Labor was unable to determine conclusively that workplace drug abuse is having a detrimental impact on many aspects of employment.13
Furthermore, reports that drug testing programs have led to reductions in workplace accident rates leading to savings to industry are sometimes misleading. For example, a consultant hired by the Georgia Power Company reported, to some fanfare, that there had been a decrease in the accident rate because of extensive drug testing. Georgia Power’s accident rates at its nuclear plant per 200,000 manhours each year did decline as follows:
But drug testing did not begin until the Spring of 1984, after the greatest decline in accidents had already occurred. Drug testing could hardly be termed a “significant contributing factor,” as was asserted, in reducing Georgia Power’s accident rate.14
Several organizations, including the United States Post Office, have attempted to measure the relationship between drug testing and job performance by testing all applicants, hiring even those who failed, and then evaluating their job performance sometime later. These studies, published by the National Institute on Drug Abuse, show that there is little, if any, relationship between drug test results and future job performance.15
IS HAIR TESTING FOR DRUG USE A PREFERABLE ALTERNATIVE TO URINE TESTING?
Advocates of hair testing assert that since this process is less intrusive, it surmounts the privacy concerns surrounding urine testing while providing employers with a means to ensure a drug-free workplace. Hair testing, however, suffers from many of the problems associated with urine testing.
While the collection of a hair specimen may not offend privacy to the same extent as urine collection does, the subsequent testing of the hair enables employers to learn a great deal about an individual’s medical history. Many legal drugs detectable by hair testing are used to treat expensive illnesses, like AIDS and heart conditions. Employers may be tempted to use hair testing to deny employment to people with these conditions. Because it enables employers to learn such personal medical information about employees, hair testing, like urine testing, is a serious invasion of privacy.
According to a recently released policy statement by the Food and Drug Administration (FDA), “the consensus of scientific opinion is that hair analysis…for the presence of drugs of abuse is unreliable and is not generally recognized by qualified experts as effective.”16
HOW CAN EMPLOYERS PROVIDE A SAFE AND PRODUCTIVE WORKPLACE WITHOUT IMPINGING ON EMPLOYEE PRIVACY RIGHTS?
New computer-assisted tests can provide employers with the means to insure that their workers are able to safely perform their jobs without intruding upon their privacy. Such tests measure hand-eye coordination and reaction time. The employee is required to keep an electronic pointer, which is continually straying off course, in the center of a computer screen. The straying accelerates until the employee can no longer keep the pointer centered. Each employee’s performance is measured against his or her previously established base line.17
Unlike urine tests, such “critical tracking tests” yield information that is actually useful to the employer. Impaired functioning, whether because of drug use, illness, anxiety or fatigue, can be detected without violating anyone’s privacy. Although both NASA and the Air Force use these tests on test pilots, few businesses have opted to use them. But the few that have are happy with the results. As one employer explained, “I think most of the employees like the idea that we’re judging them on their performance rather than on what they might have been doing a couple of nights ago. I like it because it’s practical.”18
The state of the law with respect to drug-testing in the workplace is still evolving. In the public employment sector, numerous challenges to mandatory drug testing programs have been mounted by both public employee labor unions and the ACLU. Those challenges have generally asserted that urine testing not based on probable cause, or, at least, reasonable suspicion, violates government employees’ Fourth Amendment rights. Such claims were often successful in the lower federal courts19 until March, 1989 when the United States Supreme Court issued its first two decisions in the drug testing area. (See below).
A handful of states have enacted laws prohibiting the random drug testing of employees in both the public and private sectors. (See below). However, in most states, private sector employees are still afforded no protection from the abuses of inaccurate and indiscriminate drug testing. More state laws regulating employee drug testing in the private sector are needed to protect employees’ rights to privacy and fair treatment.
The Supreme Court’s Decisions
On March 21, 1989 the U.S. Supreme Court handed down its first drug testing decisions upholding two testing programs: the Federal Railway Administration’s testing of entire train crews following certain accidents or incidents,20 and the U.S. Customs Service’s testing of current employees who applied for promotions into certain positions.21 While the factual circumstances of these decisions were narrow, the Court’s language was very broad and, in essence, authorized the suspicionless testing of millions of government workers.
Although the Court concluded that urine drug tests were searches that must comport with the Fourth Amendment’s “reasonableness” requirement, the majority in both cases also departed from precedent and concluded that “neither a warrant, nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance.” The majority went on to hold that where the government could demonstrate “special needs” it could subject its workforce to suspicionless personal searches, i.e., drug tests.
In a blistering dissent, Justice Marshall challenged this new “special needs” test, charging that it left the Fourth Amendment “devoid of meaning, subject to whatever content shifting majorities concerned about the problems of the day choose to give that supple term.” The dissenters recalled similar widespread public scares that created constitutional problems in the past, like the internment of Japanese-Americans during World War II and the loss of free speech during the McCarthy period of the 1950s.
Because the decisions were so broadly written, a large percentage of government employees not suspected of drug use may be subjected to drug tests. In his dissent to the majority opinion in the Von Raab decision, Justice Scalia lamented the breadth of the decision: “Vast numbers of employees will now be exposed to this needless indignity,” he wrote. He noted that the broad, public safety rationale of the majority could lead to the suspicionless testing of “automobile drivers, construction workers, and school crossing guards.”
While not all of Justice Scalia’s predictions have yet been realized, some random drug testing programs in the public sector have since been upheld by the lower courts. The Supreme Court’s insensitivity to the privacy rights of government employees underscores the critical role state legislatures must play in protecting those rights.
Post-Skinner/Von Raab Drug Testing Decisions
Since the Supreme Court decisions, courts across the country have been grappling with numerous challenges to drug testing programs in government workplaces. Although the case law is still evolving, some trends have emerged.
In general, federal courts are upholding random drug testing programs for the following kinds of jobs:
1. Those implicating public safety: E.g., motor vehicle operators, locomotive engineers, aircraft pilots and boat operators working for Department of the Navy (AFGE v. Cheney, _____ F.Supp. ______ (N.D.Ca., 1990)); but not pathology technicians, diagnostic radiology technicians and dental hygienists (AFGE v. Cheney).
2. Those requiring the carrying of firearms: E.g., prison guards (Taylor v. O’Grady, 888 F.2d 1189 (7th Cir., 1989)); police officers (Brown v. City of Detroit, 715 F.Supp. 832 (E.D. Mich., 1989)).
3. Those with access to highly classified information: E.g., Department of Justice lawyers who hold top secret national security clearances (Harmon v. Thornburgh, 878 F.2d 484 (D.C. Cir., 1989), cert. den., 110 S.Ct. 865 (1990)).
The courts are, in general, not permitting the blanket testing of entire workforces. For example in Burka v. New York City Transit Authority,______F.Supp._____(E.D.N.Y., 1990), a federal district court threw out a drug testing program that was too all-encompassing and included employees whose jobs did not have a nexus with public safety. Similarly, in Transportation Institute v. U.S. Coast Guard, 727 F.Supp. 648 (D.D.C., 1989), the federal district court struck down the drug testing program for shipboard cooks, messmen and cleaners.
Private Employment Case Law
Few courts have afforded private sector employees protection against random drug testing. To date, there have only been a handful of cases won by private sector employees who either refused to take the test on privacy grounds and were fired, or whose test results were inaccurate. In most states, courts have ruled that the employment-at-will doctrine outweighs employees’ privacy rights. Only in California has the highest state court held otherwise. In that state private sector employees (but not job applicants) have been found to be protected by the right to privacy contained in the state constitution.22
A handful of states have enacted laws restricting drug testing in the private sector. Maine, Vermont, Rhode Island, Connecticut, Montana, Minnesota, Iowa, and Hawaii have adopted laws that limit the circumstances under which employees can be required to submit to drug tests. Louisiana, Maryland, Nebraska, Oregon and Utah have adopted legislation that regulates drug testing in some fashion.
The laws of Connecticut, Iowa, Maine, Minnesota, Montana and Vermont restrict job applicant testing. Those same states and Rhode Island limit testing of current employees to those actually suspected of using drugs to the detriment of their job performance. Connecticut, Iowa, Maine, Minnesota and Montana further limit testing to employees holding safety-sensitive jobs.
For example, Iowa’s Act to Regulate the Circumstance and Procedure Under Which an Employer May Request a Drug Test of An Employee or an Applicant for Employment (Iowa Code Ann. 730.5) permits testing if there is “probable cause to believe that an employee is in a position where such impairment presents a danger to the safety of the employee, another employee, a member of the public, or the property of the employer, or when impairment due to the effects of a controlled substance is a violation of a known rule of the employer.”
The Maine law, An Act Relating to Drug Testing (Maine Rev. Stats Sec. 681) requires employers with more than 20 employees to establish an employee assistance program and develop a written policy before conducting drug testing. Testing must be conducted in a medical facility under the supervision of a physician and the employee or job applicant has a right to conduct his or her own test of a separate sample of urine collected at the time of the initial test. In Maine pre-employment tests can be required only if an applicant has been offered employment or a position on an eligibility roster. Employees may be tested if there is probable cause which is stated in writing. Random testing is only permitted if it has been agreed to in a collective bargaining agreement or if, “The employee works in a position the nature of which would create an unreasonable threat to the health or safety of the public or the employee’s co workers if the employee were under the influence of a substance of abuse.”
In addition, some states have passed laws solely addressing the issue of drug testing of public sector employees. They include Florida, Georgia, Kansas, South Dakota, and Tennessee.
The model statute, which aims to prevent drug testing abuses in the workplace, contains the following key provisions:
- Notice: The employer is required to notify employees in writing of the employer’s drug testing policies.
- Employee Testing: An employee can be drug tested only if the employer has reasonable suspicion that he or she is under the influence of alcohol and/or other drugs.
- Applicant Testing: A job applicant can be drug tested only if the employer has reasonable suspicion that the applicant is under the influence of alcohol and/or other drugs.
- Impairment Evaluation Procedure: Before a drug test can be administered, a drug recognition expert must physically examine and interview the employee or applicant to determine if a drug test is warranted.
- Providing the Sample: Under no circumstances may an individual be observed while providing a urine sample.
- Laboratory Requirements: Only laboratories certified by the Alcohol Drug Abuse and Mental Health Administration (ADAMHA) may conduct drug tests.
- Right to a Hearing: Employees have the right to a hearing to contest the employer’s right to test, the accuracy of the test or personnel decisions based on the test.
- Rehabilitation and Treatment: The employer must provide drug abuse assessment and an opportunity for treatment if treatment is recommended, and the cost of treatment is equally divided between employer and employee.
- Confidentiality of Test Results: Information concerning a drug test cannot be released without the written consent of the employee.
- Remedies for Violations: Any aggrieved person can bring a civil damages action in court, and anyone who knowingly violates the law may be guilty of a misdemeanor.
MODEL STATUTES 23
It is the policy of the State:
1.1. to implement effective measures to eliminate alcohol and other drug abuse that threatens health and safety in the workplace;
1.2. to encourage rehabilitation of employees who are accurately identified as abusers of alcohol and/or other drugs so that they may continue or resume employment;
1.3. to ensure that all citizens enjoy the full benefits of the rights to privacy and due process of law, and the protection against unreasonable searches and seizures guaranteed by the Constitution of the United States and of this State.
1.4. to establish that Employers do not have a legal duty to require alcohol or other drug tests authorized by this Act.
It is the purpose of this Act:
2.1. to protect employees against inquiry and investigation into conduct and activities that happen outside work and that are not directly related to the actual performance of job responsibilities;
2.2. to regulate the circumstances and procedures under which an employer may request a drug test of an employee or applicant for employment;
2.3. to ensure that an employee with a substance abuse problem receives an opportunity for rehabilitation and treatment of the disease.
3.1. “Applicant” means any person who is offering services for compensation to any employer located and/or doing business within the geographic boundaries of the state.
3.2. “Drug” means any substance classified as a Schedule I or II controlled substance by the Drug Enforcement Administration; it
Every month, you'll receive regular roundups of the most important civil rights and civil liberties developments. Remember: a well-informed citizenry is the best defense against tyranny.