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
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