Drug Testing In The Workplace

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