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Drug Testing in the Workplace: A Bad Idea and a Bad Investment

REPOST – ARTICLE SOURCE:
https://acluva.org/393/drug-testing-in-the-workplace-a-bad-idea-and-a-bad-investment/

Indiscriminate testing of employees for drug use is an intrusive and degrading process that undermines our most deeply held tenets of fairness and privacy in the workplace. It should not be surprising, then, that a recent study concluded that workplace drug testing lowers productivity. What is surprising is that, despite these obvious liabilities, employers continue to make drug testing in the workplace a growth industry in the United States.

Although employees of private companies are not entitled to the same constitutional protections as public employees, private employers could benefit from reading court rulings on drug testing in the public-sector workplace. Arcane as the courts can be, we rely on them to interpret constitutional principles for us in meaningful ways that ultimately become part of our culture.

Our courts have consistently held that random drug testing of public employees violates the Fourth Amendment’s prohibition against unreasonable searches. Drug testing may take place only in those rare instances when a special societal need outweighs the employee’s privacy interest. Thus, employees who operate mass transit equipment or customs agents who carry firearms may be randomly tested for drugs, while the vast majority of public employees may not.

Still, employers may order drug tests of individual employees when they suspect that drugs are affecting that person’s productivity. Although this is neither the wisest nor the most effective approach to an employee with a drug problem, at least it respects the important line we in this society draw between a random search and a search based on individualized suspicion.

Some employees may indeed be going to work under the influence of illegal drugs, but does that justify testing every employee at random? Using this reasoning, the police should fight crime by indiscriminately entering homes and rummaging through our drawers looking for contraband. Fortunately, the Fourth Amendment was conceived precisely for the purpose of preventing this kind of abuse of authority, and we all seem to understand it in this context. Should we not apply similar principles to the workplace?

Beyond these important principles, there are very real and injurious consequences to drug testing that its advocates seldom mention. Urinating into a bottle at work under the watchful eye of security personnel is, as one judge put it, “an experience which even if courteously supervised can be humiliating and degrading.” And, while drug testing methods have improved in recent years, the most commonly used techniques still yield false positive results on a regular basis. This means that model employees who have never touched an illegal substance in their lives may lose jobs or promotions based entirely on erroneous information.

These tests also interact with other drugs, so the test evaluator needs to know if the employee is being treated for a heart condition, depression, diabetes, or any other illness or disability. This is not information we want to share with our employer so long as the condition does not affect work performance.

Although some drug testing advocates recommend a kind of due process, whereby companies that drug test their employees create safeguards to protect privacy and increase accuracy, nothing in Virginia law requires it. Drug testing is expensive for employers: it costs to have the tests analyzed and to employ personnel to oversee the tests, and its takes employees away from their jobs. The

higher the quality of the testing procedure and the more safeguards that are in place, the more expensive the testing. In the end, will not most employers resorting to the cheaper, less reliable tests and avoid the time consuming procedures that allow employees to contest the accusation of drug use?

Not only should employees object to random drug testing, but employers should be aware of a recent study, the first of its kind, which demonstrates that employers who institute random drug testing programs are taking a significant business risk. The study, which was published last fall by the Le Moyne College Institute of Industrial Relations, analyzed 63 firms and concluded that both pre-employment drug testing and random drug testing had a significant negative impact on worker productivity.

The experiment measured only the actual impact of random drug testing, but apparently did not attempt to answer why it occurred. Could it be that employers with invasive drug testing polices demoralize workers? Or that they create so much resentment in the workplace that productivity decreases purposely? Whatever the reason, employers who adopted random drug testing policies get the opposite of what they bargain for, as productivity goes down, not up.

In the eighties, when it became obvious that employers were using polygraph testing to invade the privacy of employees, Congress regulated its use. It is now illegal for private sector employers involved in any interstate commerce to polygraph employees on a random basis. Instead, an employer must have individualized suspicion that an individual employee has committed a crime or violated company policy in order to use a polygraph.

As more employers adopt random drug testing policies and more employees are abused and outraged by it, the argument for regulation is strengthened. Having noticed the deleterious effects of drug testing in the workplace, a dozen states have passed legislation to regulate it.

Virginia legislators have had two opportunities to regulate drug testing in the workplace. Twice in the early nineties, bills were introduced to ban random drug testing unless the employee occupies a position where security or safety is at risk. These bills also regulated the drug testing procedure so as to diminish the likelihood of employees losing their jobs from false positive results. Sadly, neither bill received a single vote.

The right of privacy, said Supreme Court Justice Louis Brandeis, “is the most comprehensive of rights and the right most valued by civilized men.” When we go to work, we voluntarily give up certain pieces of our privacy in order to be productive employees. But other pieces of it — with whom we associate during our non-work hours, what we ingest, or what medications we take– should remain private so long as our work performance is unaffected.

The lack of legislation to control drug testing has allowed the trend toward more random drug testing in the workplace to expand Big Brother’s territorial rights. He no longer lurks solely in the shadow of big government, but can now be found in the hallways of the private workplace as well. It is a trend we should not tolerate.

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2 Comments

  1. Rob Bailey says:

    Your article is a good read. As part of a business ethics assignment, I am going to make some key points from an employer’s perspective. Your argument states drug testing on employees is degrading, and that workplace drug testing lowers productivity. You make these statements without any details of the recent study you refer to. It would be interesting to research the study and providing the source could possibly strengthen your argument.
    Why should employers be held liable if they are not allowed to check for potential danger to other employees etc.? This is like saying an employee could state “you have no rights (including legal where applicable) to drug test me, but if I have an accident because I was drug impaired, you (the employer) will be held liable”. Or, “you have no right to drug test me just because I take regular sick leave, develop difficulty in following instructions, make increasing mistakes, and develop a lazy disposition”.
    Sure, there are other ways of dealing with such behavior, but if the behavior is drug induced without employer knowledge, how can the behavior be improved? Knowledge of an employee under the influence at work may be beneficial to both the employee and employer.
    What’s to say an employer notes reduced performance is due to drug use, decides it affects an otherwise good employee, and sits down with the employee to discuss, for argument’s sake, rehabilitation? What’s to further say an employer that cannot drug test a certain employee, issues the required number of warnings, then fires the employee for not performing?
    I disagree that drug testing is expensive and would outweigh any benefits. Poll results from research of the Society for Human Resource Management (US) (www.hireright.com) showed there was only a very slim margin of employers that paid more than $50 (US) per person for each drug test. The average cost per person is around $35 (US) per person. Fairly minimal really, and far from expensive!
    I see three reasons as to why drug testing is important being safety, performance and productivity and profits. Risks to employers other than safety include higher turnover, increased absenteeism and decreased productivity. What’s the monetary cost of this? Less than $50 per employee?
    I do not doubt the advocates for banning drug testing in the workplace will still argue that employees don’t approve, and that it’s intrusive and degrading. However, research shows that many employees know that drug use in employment causes issues and many believe it adversely affects performance, productivity and safety. (http://ehstoday.com)
    Research carried out by the Gallup (provides market research around the world) indicates well over half of all employees in various industries agree that drugs affect attendance, productivity, safety and morale! (www.ehstoday.com)
    You note courts have held that random drug testing violates rights (our version of the New Zealand Bill of Rights Act). Perhaps the courts need to look further into research on drug testing in the workplace and alter legislation?
    I do not believe ‘similar principles’ could apply in the workplace as to the reasoning of ‘police fighting crime by entering homes and rummaging through properties looking for contraband’. The major difference between these two scenarios, is that the employee has a contract with his or her employer.
    All driver license holders [all licence holders have a contract with the motor vehicle/transport authority (www.svpvril.com/drilic.html)] will be aware that they must not drive whilst under the influence of illicit drugs or alcohol. Our police have the right to random breath test, ‘anywhere, anytime’ (not considered a violation of rights in regards to this).
    You could be a model driver (just like the model employee), yet still subject to undergo a random breath screening test. The model driver has nothing to fear, just like any model employee has nothing to fear. Simply count to ten, or stick the piece of card on your tongue as the officer requests. What is intrusive or degrading about this? Especially given the police’s aim (as is any employer) is to reduce harm to ourselves and others!
    I disagree that model employees (or any employees in fact,) could lose jobs or promotions based on inaccurate drug test results. I agree that there is some probability of inaccurate results, however just as roadside breath testing provides ‘an indication’, so too does positive drug tests in places of employment. Testing in the first instance is simply one of several ‘tools’ and as such, a ‘tool’ to decide if further investigation is required.
    If a motorist returns a positive test for drugs and/or alcohol, further evidential tests are required to be undertaken (to out-rule cases of ‘false readings’). This legislation could be put in place in regards to workplace drug testing. Further confirmatory (GC-MS) testing significantly lessens the chances of false positive readings to almost zero. (www.drugs.com)
    Taking all of the above into consideration, the employee at the end of the day still has a right that can’t be violated. Every potential employee has the right to turn down a job offered to them. The point I’m trying to convey, is that a contract is an agreement or promise made between two or more persons which is enforceable by law (bearing in mind some legislative laws that anyone can’t contract out of, for example the Consumer Guarantees Act). If a job applicant does not want to agree to possible random drug testing, the job applicant can choose not to enter any such agreement!

  2. Veronica says:

    Your article argues the fairness and privacy issues of random employee drug testing for public employee’s, you also state that drug testing proves lower employee productivity based on a study done by Le Moyne College Institute of Industrial Relations. This in your view is “a bad idea”, so why would organisations continue to invest millions of dollars on these tests? This is where the “bad investment” comes into play.

    According to philosophy professors Joseph R. Desjardins (College of St. Benedict) and Ronald Duska (American College), the main arguments of drug testing in a workplace is one; to prevent harm to the employee, other employees, the employer and the public, and two; are the affects drug use has on employees performance levels. The second argument however is controversial in that it can only be applied in certain limited circumstances. (DesJardins, J., & Duska, R. 2001)

    Being able to test if an employee is a drug user can pose a threat to the health and safety of others, the employer along with themselves, it is not aimed to punish or discriminate employee drug users but to offer help, and to treat and discourage abuse. Yes an employee has a right to his/her privacy on what he/she does at home, however an employer has a duty to prevent harm in the workplace as well as harms done by their employees, so careful consideration is done by employers before they implement such a drug testing scheme in a workplace. First they need to ask if it is efficient and that it is a morally acceptable means of promoting safety. On these grounds employers have a legal right to drug test in jobs where there is a high potential for serious drug related harms to others. (The Open Polytechnic Of New Zealand, 2013)

    Doctors and drivers are examples of jobs that have a high potential for serious harms to others. A report in The Lancet for example revealed that 37% of male junior doctors were using cannabis and 14% cocaine, amphetamines, LSD, Ecstasy, magic mushrooms or other substances. That’s approx. 10,000 doctors who treat around 200,000 patients every day. I sure would not want to receive advice or treatment from these doctors knowing that they were under the influence, would you?

    You also point out that random drug testing to public employees violates the Fourth Amendment. The Fourth Amendment prohibits unreasonable searches and seizures. How can we define what is reasonable? Reasonable under the Fourth Amendment is not precise enough to rule out public employees as each case is balanced with the need for drug testing in the workplace against the employee’s privacy that the testing entails. London Transport for example tests just 5% of its drivers a year, which is approximately each worker being tested once every 20 years, this is hardly an invasion of one’s privacy, testing done to those on the welfare would be more of an invasion on one’s privacy don’t you think?

    Based on the Le Moyne College Institute of Industrial Relations study alone, I find it difficult to believe that drug testing will lower productivity based on the firms that were researched when there is also evidence that it can increase productivity. A television documentary on “the new era” of industrial spying and snooping that examined the new wave of drug tests showed a segment that proved corporate drug testing raised productivity, lowered costs and reduced waste. Employers need to be aware that employees who take drugs are more than likely to show up to work late, hurt themselves or others at work, sue for compensation and likely to miss work compared to an employee who didn’t take any drugs. Surely this is causing a headache for employers, costing them money and lowering productivity as well?

    I am therefore not convinced that drug testing results in a bad investment to companies, sure it costs millions of dollars a year but doesn’t the good out-way the bad? How can we put money on the risk of harm to the employee, others and the employer? A drug free company is clearly a good image is it not?

    The way I see it, drug testing will continue to grow regardless of the claims that it breaches ones privacy. It seems to be the most practical and cost effective way to tighten existing drug policies. To me personally it is a good idea and a good investment and we either take hold of the issue now or the issue will take hold of us.

    References:
    DesJardins, J., & Duska, R. (2001). Drug testing in employment. In T.L. Beauchamp & N. E. Bowie (Eds.), Ethical theory and business (6th ed. pp. 283 – 294). Upper Saddle River, NJ: Prentice Hall.

    Duke Law Scholarship (1988) Drug Testing and Public Employment, Drug testing and the Fourth Amendment (page 253: Winter 1988), Retrieved January 8, 2014, from http://www.scholarship.law.duke.edu

    Tom L. Beauchamp (1993), Case Studies in Business, Society, and Ethics 3rd Ed. Drug testing at College International, Prentice Hall
    The Open Polytechnic of New Zealand. (2013). Module Two. In 71203 Business ethics, Lower Hutt, NZ: Scholes.

    The Times (London, England). (Nov. 5, 1998): News p25. Why we must have drug tests at work NI Syndication Limited. The Times. Retrieved January 8, 2014, from http://www.thetimes.co.uk

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