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Policy Statements- Mandatory Drug Testing

California Attorneys for Criminal Justice supports the right to privacy in the workplace. Mandatory drug testing as a precondition to employment or during the course of employment violates our most cherished values of privacy and the right to be free from unreasonable search and seizure.

From their inception, our state and federal constitutional systems have permitted an intrusion into personal privacy only where there is individualized suspicion of wrongdoing. (U.S. Const., Amend. IV; Calif. Const. Art. I, sec. 13.) Our most basic notions of human dignity and privacy are offended by drug testing programs which proceed without cause to believe that a particular employee is impaired as a result of drug use. Such testing is justified neither by the perception of a national drug crisis nor by the employers' avowed interest in a safer, more productive workplace. Significantly less intrusive and more effective means exist to reach drug-induced worker impairment. Drug tests do not provide information relating to the ostensible purpose of the tests: worker impairment. They do not test for addiction or use of drugs in the workplace. They do not test for the presence of many commonly used drugs, including LSD and "designer drugs." Nor do they test for other causes of work impairment, including fatigue, emotional problems, mental disorders, poor health, or misuse of prescription drugs. The tests only inform the employer of the presence of metabolites of selected drugs ingested at some point in the past. There is no way to meaningfully determine from the tests how much the person consumed or when. (Traces of marijuana, for example, remain in the system for weeks or even longer after the drug has ceased to affect the person.) There is no way to determine from the tests whether the person tried the drug experimentally at a weekend party, or whether there is a real substance abuse problem affecting work performance. Drug testing does not test for actual impairment.

Drug testing provides an improper means for employers to learn intimate details relating to employee lifestyle. It permits employers to learn personal medical information, including whether the person is being treated for heart disease, depression, high blood pressure, or pregnancy. There is little protection for employees against the disclosure of test results or related information to third parties. The mere presence of a selected metabolite in a person's urine might well result in termination and a blackball effect on future employment.

The testing procedure itself is often offensive to human dignity. In urine testing, it is common practice to require employees to void the bladder under the scrutiny of laboratory technicians. This humiliating experience is imposed upon the vast majority of "innocent" employees in order to reach the "guilty" few.

To make matters worse, the tests themselves are notoriously unreliable. The most widespread tests yield both false positives and false negatives at an alarming rate. To some extent the errors are caused by an illegal drug or a completely innocuous substance. (Poppy seed bagels have engendered false positives for heroin and Nyquil has caused positive readings for the presence of amphetamines.) Human error is an even more troublesome cause of test unreliability. Many laboratories lack rigorous procedures to guard against contamination of samples or clerical mixups. The laboratories are largely unregulated, and as a consequence, many fail to adequately train employees in the proper interpretation of test results. Few laboratories perform independent tests to confirm initial findings, and few retain the sample to provide for independent testing at the request of the employee.

Furthermore, there are less intrusive, more effective means of addressing drug-based worker impairment. In the employment screening process, the employer can perform background checks aimed at learning the applicant's previous rate of absenteeism, level of reliability, history of accidents, and other indicia of actual work impairment. Employers can train supervisors to watch employees for early signs of impairment, and then provide educational and employee assistance programs to pinpoint and resolve drug-related problems. Only where an employer has reasonable cause to believe that a worker is drug impaired on the job and that he is likely to endanger himself or others in the workplace should the employer have the power to demand drug testing. In that situation, the employer could properly require a particular employee to undergo a medical examination aimed at measuring actual cognitive and physical impairment. A requirement of individualized suspicion directly addresses the problem of work impairment without subjecting all workers to the indignity of random testing. Probable cause testing should, of course, be conducted with meaningful due process protections. Employees should be provided with prior notice of the testing policies and an opportunity to seek independent verification of the test results. The employer should utilize the services of laboratories following rigorous testing procedures, with follow-up confirmation of positive tests. The employee should be given an opportunity to retest within a prescribed period of time, and rehabilitative services should be used in lieu of dismissal whenever possible. Such procedures would provide for a safe, productive workplace, while assuring fair and compassionate treatment of all employees.

--drafted by Sue Burrell

FORUM, NOVEMBER/DECEMBER 1987, Vol.14 No.6

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