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Drug Testing In The Workplace

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Autor:  anton  28 October 2010
Tags:  Testing,  Workplace
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Drug Testing Policies in the Workplace

Drug testing has become a very big issue for many companies. Approximately eighty-one percent of companies in the United States administer drug testing to their employees. Of these, seventy-seven percent of companies test employees prior to employment. Even with the commonality of drug testing, it is still a practice that is generally limited to larger corporations which have the financial stability, as well as the human resources to effectively carry out a drug testing program. In the United States, it is suggested that as many as 70 percent of drug users are employed. Now this is a huge chunk, but as a result of drug testing, these big corporations have a significantly lower percentage of the employed drug users on their workforce. Inversely, medium to smaller companies tend to have more. United States companies, who employ more than five hundred workers, employ only 1.3 percent of the employed drug users, while medium size companies, employing only twenty-five to five hundred employees, have 43 percent of the employed drug users on their payroll, and smaller companies, with fewer than twenty-five employees, provide jobs for the remaining 44 percent.

Now, why is it important for companies to perform drug tests? First, drug users are a third less productive than the average employee, and tend to take more sick days. They are almost four times more likely to cause an on the job accident and injure themselves as well as someone else. They are also five times more likely to injure themselves outside of the workplace, which in turn affects both performance and attendance. Now I’m sure almost everyone can attest to the fact that drugs, including alcohol can cause some serious injuries. A study by the United States Postal Service

found that “…substance abusers, when compared to their non-substance abusing co-workers, are involved in 55 percent more accidents, and sustain 85 percent more on-the-job injuries” (Why Drug Test). Another study conducted by the National Council reports that “80 percent of those injured in ‘serious’ drug-related accidents at work are not the drug abusing employees but non-using co-workers and others” (Why Drug Test). All of these facts relate back to the general duty of the employers to provide a safe work environment for all of their employees. Companies also want to create a safe, productive work environment in order to maximize profits. Therefore, it is definitely not in a company’s best interest to employ drug users.

Another benefit to drug testing for employers relates to insurance companies. Workers compensation claims can also be directly related to employees who are regular drug users. Some states are offering as much as a five to eight percent discount for companies that implement a drug testing program and provide the insurance companies with a written policy which requires pre-employment drug testing, testing in cases of reasonable suspicion, and post accident screening. Other states offer discount and do not even require that a written agreement be presented. This leads directly into the different testing categories that companies can conduct

There are different testing categories, and each comes under its own legal questioning. The first and by far the most common type of drug testing is pre-employment testing. This usually takes place when a company has decided to hire an employee, but makes that prospective employee pass a drug test before any sort of employment agreement is settled. Second, there is random drug testing that can involve two different policies. The first, simply being that random employees names are picked to undergo the testing. The second requiring all employees to take a drug test on a random day that can either be pre-announced or not. For example, my high school conducted drug testing on random students and on random days in a month. The third type of testing allows employers to test when they have reasonable suspicion to believe that an employee is using drugs. The final type of drug testing is post accident screening. This is self explanatory and is most common in the transportation industry and is required in most cases by the federal government.

In dealing with the legality of drug testing, several questions arise. A major question surrounding employee drug testing is the constitutionality of the practice. One of the biggest constitutional questions relating to this topic deals with the issue of unreasonable searches. “These drug tests are performed without search warrants being sought by the companies” (Bryan). The Supreme Court has decided a few cases dealing with unreasonable searches. In the case, Skinner v. Railway Labor (1989), the court found that drug testing of any sort was indeed a search under the Constitution. As well, the drug testing dealt with in this case was mandated by the government as a post accident screening. Therefore, this was a fourth amendment case. However, in the majority opinion written by Justice Kennedy, the court found that the drug testing was reasonable even without a warrant being issued. They continued that “since the railroad system can potentially put the public at risk, and that is more important than the employee’s right to privacy, therefore the government can be compelled to administer drug tests as to determine the cause of an accident” (Supreme Court Reporter). In another case decided on the same day, National Treasury Employees v. Von Raab, the court held that drug testing was constitutional when the employees were involved in sensitive jobs such as handling of firearms and working customs jobs that try to prevent drug trafficking. “Furthermore, the court found drug testing constitutional for employees applying for promotions to jobs which entail these sorts of job requirements” (Supreme Court Reporter).

Another issue of constitutionality is traced to the Fifth Amendment which deals with self-incrimination. This can be used as a legal argument since, and “…by being forced to take a drug test, this person can lose some privileges or rights, such as employment” (Bryan). Fifth Amendment questions generally can lead to questions dealing with the fairness of the testing procedure or due process. Once again, this applies mainly to government employees and those who are contracted by the government. Dealing also with the due process claim, “occasionally, there are Fourteenth Amendment claims dealing with racial discrimination in the random selection of employees to be tested” (Bryan).

Most of the other potential legal challenges lie outside of the Constitution, but are

still important to examine. The first potential challenge stems from “the General Duty

Clause” of the Occupational Hazard Safety Act of 1970. Basically, this legislation stated

those employers had to provide their employees with a safe work environment in every way possible. Since drug users can make the work place more dangerous, subtracting drug and alcohol use during company time would make the work environment much safer. If a company has an employee who is abusing drugs during company time and injures another worker as the result of an accident, the company can be held liable. To add to this, “the Misuse of Drugs Act of 1971 established that managers can be held personally liable for any drugs that are taken on the premises” (Thatcher). This adds to the appeal of creating a drug free work environment for employers. Finally, “employers can be sued for any negligence that takes place during the testing procedure” (Bryan).

The loudest voice on the opposition to the constitutionality of employee drug testing is the American Civil Liberties Union. They agree that employers have the right to expect that their employees perform their jobs to the best of their ability, and that may mean not being under the influence while on the job. However, they do not believe that what an employee does off the job, which does not affect their job performance, needs to be known by the employees. They interpret the Fourth Amendment more strictly than the Supreme Court has. While both sides agree that drug testing is a search of the body, the ACLU argues that it is an unreasonable search and an invasion of privacy. Their main point lies in the administration of the test. Most times, the employee taking the test is monitored closely during urination to make sure that the sample is not tampered with. This is a very uncomfortable experience and quite invasive when all points are considered. Furthermore, they argue that this government was partially created because of King George’s treatment of the settlers, treatment which included unreasonable, indiscriminate searches. As a result, the ACLU thinks it is completely irrational for the government to allow such searches (“Drug Testing in the Workplace”).

There are numerous different ethical issues that can also be tied in with the legal issues. First, there is the problem of confidentiality. Testing procedures and results are always confidential and remain solely between the necessary management and the employee in question. However, there are two potential errors in this confidentiality. The first is that the drug tests may reveal other medical conditions that are not necessary for the employer to know, but they would in fact find out after the test results are read by the employer. The second is if an employee is fired or suspended because they fail a drug test, although the reason for their termination would remain confidential, it is highly likely other employees will find out what happened. This in turn will ruin an employee’s reputation and could potentially cause problems for them in the future when they are seeking employment. Both of these claims fall into one larger problem, and that issue being the invasion of privacy. Furthermore, there is also the ethics of how to deal with drug abusers who fail drug tests. Does the employer fire them or offer them rehabilitation? If they decided to offer rehabilitation, how many chances does the employee get to clean up their act? Many will argue that the best option for the company is to rehabilitate their workers. Not only is the company helping out an employee with a problem, but they are also helping their own company by creating an employee friendly image. Another ethical issue is brought out by the American taxpayers. Many Americans do not want to see their tax dollars spent that way. Therefore, another question is raised. Does the government have the right to spend American tax dollars on a program that is opposed by many? In my personal opinion, my hard earned money doesn’t need to be paying for the rehabilitation of a drug abuser. They took the responsibility of abusing drugs, now they should take responsibility for their own actions. They should invest their own earnings into their rehabilitation and then it should be up to the employer to rehire them or not to.

Returning to the idea of invasion of privacy however, the other side of the ethics argument deals with the safety of all employees and that of the general public. The employer, as stated before, has a duty to protect their employees. Therefore, employers have to decide what is more important to them, their employee’s right to privacy, or their employee’s right to a safe work environment. This of course is a tough decision to make. “It does appear that some of the opposition surrounding the right to privacy has diminished, but it is not entirely dead” (Khan). However, the company will leave themselves open to numerous different common law claims if they do not address the right to privacy issue in one way or another. The government has in fact mandated drug tests for those that work in safety sensitive industries. As mentioned before, these include, any transportation industries, jobs that require employees to use firearms, and jobs that work to prevent drugs from entering the country and being distributed. However, there is no legislation regarding such potentially dangerous jobs as factory jobs that require drug testing. If an employee makes a serious mistake on the floor, it is very likely that injury could occur to themselves or others around them.

Unfortunately, no matter how ethical or unethical, constitutional or unconstitutional one believes drug testing is, it is in an expensive practice. “On average, the cost of testing just one person centers around seventy-five dollars” (Javaid). As well, “rehabilitation programs, which are offered by some companies, are also expensive. Just writing the policy can cost a large sum of money, since it is necessary to hire a lawyer who specializes in labor relations to create the policy” (Elkin). Contrast this though to the “…some 171 billion dollars spent on workplace injuries in an average year” (Kesselring). This causes companies to seriously consider implementing a drug testing program as a result. However, the small businesses are at a disadvantage as mentioned before, because they do not have the resources necessary to start up a program which would be effective. For example, the Navy alone spends nearly ten million dollars a year on testing (Ferraro). However, to encourage companies to implement effective and legal drug testing programs, some states are offering incentives in the form of insurance discounts and reimbursements from worker’s compensation claims. As mentioned before, for simply providing the state with a written testing policy, companies receive a five to eight percent discount on worker’s compensation. In Ohio, a twenty percent discount is offered to companies that randomly test their employees. In Washington, companies are reimbursed between 15,000 and 20,000 dollars by insurance companies (Pryweller). One way to keep costs down is to give employees the cheap drug tests that only cost about twenty to thirty dollars a piece. Then, if the test reads positive, a more expensive and more accurate test can be administered. This way the company would not be spending as much money to test non drug users. Another idea would be to test randomly, therefore not as many tests would be administered. However, there is a greater possibility that some legal issues could arise. In general, if a company can afford to implement a drug testing program, then it is usually in their best interest when examining it from a cost-benefit angle.

There are two main types of testing available to employers. The first type is referred to as “non specific” or “broad spectrum” testing. The two commonly used versions of this test are Radio Immunoassay and Enzyme-Multiplied Immunoassay Technique. Both of these tests have not proven to be very reliable and can be skewed more easily. These tests identify organic compounds but nothing too particular. However, they are cheap running in price range from twenty to thirty dollars a piece. The other kind of test is known as the “narrow spectrum” tests. There are two versions of these tests as well, gas Chromatography and Gas Chromatography/Mass Spectrometry. These tests have proven to be much more reliable than the “broad spectrum” tests. They are however, much more expensive, running upwards of two-hundred to three-hundred dollars a test (Bixby). This information supports the argument that companies should first use a cheap test, and then if this test turns up positive use an expensive one. If companies solely used the expensive tests, they would run themselves bankrupt trying to create an effective testing program.

Another cost issue comes in with rehabilitation programs. While these programs are not cheap, it is suggested that they are cheaper than firing employees who fail drug tests and then rehiring new employees. First, the company’s image is improved in the consumer’s eye. Second, money is saved by not having to retrain a new employee and losing productivity during the time they learn the new skill. This of course is assuming that the employee who was fired was proficient at their job and was more productive than a new employee. The company can also avoid wrongful termination lawsuits by offering rehabilitation to offenders. However, if companies do implement this policy, they should not offer the rehabilitation option to repeat offenders. There has to be an arbitrary line the company draws to prevent employees from pushing the limits of the company. If an employee fails two drugs tests and has undergone rehabilitation, theoretically it would be more difficult for them to win a wrongful termination lawsuit in court.

As the information describes, the benefits to employee drug testing programs are numerous. For one, by eliminating the element of drugs from the workplace, the workplace is made safer. Fewer accidents take place, which in turn leads to fewer worker compensation claims. Furthermore, employees are proven to be more productive, increasing company profit. It also creates a friendlier environment since drug abusers who are slacking do not push excess work onto non abusing employees. Finally, companies that test pre-employment are found to attract and in turn retain better employees.

The detriments of a drug testing program are mainly legal. For one, companies open themselves up to lawsuits, which could lead to costly damages. As well, the actual program is very expensive. Oftentimes small businesses get the short end of the stick since they do not have the capital to fund such a program. Therefore, they are almost forty percent more likely to hire a drug abuser. As well, there are numerous ethical issues, such as the invasion of privacy. Companies have to be extremely careful not to cross any lines in regard to this issue. This can lead to ineffective programs.

I strongly feel that a drug testing program is necessary for businesses that can afford it, even in the case of the potential leading legal problems that may arise. However, these can be avoided in most part by writing a policy that is very descriptive and has been evaluated by a lawyer specializing in labor relations. My main reasoning lies in workplace safety and productivity. First, the safety of employees is a big concern for many employers. Eliminating on the job accidents is a priority and by limiting drug abuse, I think businesses can save money and create a more effective workplace. By increasing productivity, businesses can earn more money. As a result of saving money on workplace accidents, and gaining productivity, businesses can use this money to implement a drug rehabilitation program for our employees. I believe this would create a good company image and I also believe it is important to support and help your employees.

In my opinion, I recommend the following policy. First, a businesses main objective is to provide an alcohol free and controlled substance free environment. To do this, I believe drug tests should be administered in the following manners: pre-employment, post accident, reasonable cause or suspicion, blanket random drug testing and return to work drug testing. For pre-employment, employees should be tested after they have been offered a job, but before they have been officially hired. Post accident testing should be done to determine if the accident was in fact caused due to an employee’s abuse of drugs or alcohol. Workers, who appear to be under the influence of drugs or alcohol on the job, or seem to be suffering from the effects of severe drug abuse, should be tested to determine if they are in fact using drugs or alcohol. Finally, blanket random drug tests should be done once a year, to check up on employees as a way to prevent future accidents. If big businesses, which employ large numbers of people, do this more than once a year, it can get costly. For businesses which employ smaller amounts of people, and can afford it, could get away with testing more than once a year. Employees should be notified the day before the testing date so if they are in fact using drugs there is nothing they can do to get it out of their system.

I believe that if this policy is violated by an employee that has previously tested positive, it should result in termination. However, if a current employee is a first time offender they should be offered a chance to take part in some sort of rehabilitation program that the company will pay for, and not paid for by my tax dollars. Businesses should retest their employees a month after they return to work and if they fail their retest, they should then be terminated without further question. If a potential employee fails a drug test, they are almost never hired by the company and in my opinion should never be. If an employee or potential employee is terminated or not hired because they tested positive, the results shouldn’t be leaked to any employees or future employees.

I believe that drug testing is both fair and ethical. It is meant to protect all employees and not to invade the privacy of the employees who are tested. Any company that can afford to drug test should because in the long run it is very beneficial. If you look at the statistics, most companies pay quite a bit of money due to damages caused by drug abusers. These costs could be eliminated through drug testing and the additional costs that the company will endure through testing will outweigh the costs of damages.

Works Cited

1.) Ferraro, Eugene F. “Is Drug Testing Good Policy.” Security Management. Jan. 2000.

2.) Javaid, Makbool. “A Policy of Substance.” People Management. 12 Dec. 1998.

3.) Khan, Zafar U.; Chawla, S.K. “Ethics of Employee Drug Testing: What are workers attitudes.” Business Forum. Summer/Fall 1995.

4.) Flynn, Gillian. “Will Drug Testing Pass or Fail in Court?” Personnel Journal. April 1996.

5.) Fletcher, Lee. “Employer Drug Testing Has Pitfalls.” Business Insurance. 10 Dec. 2000.

6.) “Workplace Testing and Management.” Management Review. Oct. 1998.

7.) Kesselring, Randall G.; Pittman, Jeffery R. “Drug Testing Law and Employment Injuries.” Journal of Labor Research. Spring 2002.

8.) Bryan Jr., Leslie A. “Drug Testing in the Workplace.” Professional Safety. Oct.

1998.

9.) Pryweller, Joseph. “Insurers, States, Offer Incentives for Testing.” Plastics News. 18 June 2001.

10.) Professional Services of America. Drug Free Workplace Policy.

11.) Bixby, Michael; Dudley-Beck, Caryn; Cihon, Patrick. The Legal Environment of

Business. Prentice Hall: Upper Saddle River, New Jersey, 2001.

12.) Supreme Court Reporter October Term 1988 Volume 109 A. West Publishing Company: St. Paul, Minnesota, 1989.

13.) “Drug Testing in the Workplace.” The American Civil Liberties Union. http://www.aclu.org/library/pbp5.html. 21 May 2002.

14.) Daniels, Susan. “Drug-testing Cuts Accident Costs: Study.” National Underwriter (Property and Casualty/Risk and Benefits Management Edition v. 101). 23 June 1997.

15.) Elkin, Sam. “How to Establish a Drug-free Workplace.” Occupational Hazards v.

61. March 1999.

16.) Thatcher, Mike. “Chemical Warfare.” People Management. 24 Oct. 1996.

17.) “Why Drug Test?” Laboratory Corporation of America 2003



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