A growing trend in the business world today is to use drug testing to screen prospective job applicants and monitor current employees for drug usage. Drug testing at work presents us with a difficult ethical dilemma raising a question: How businesses can respect individual’s basic right to privacy and at the same time provide a safe and productive work environment. Drug testing at workplace is a serious ethical and legal issue with opponents claiming that it is directly infringing on employee’s constitutional rights to privacy. Drug testing can be viewed as a form of a search and seizure under the Fourth Amendment of the U.S. Constitution, USCS Const. Amend. 4. This was confirmed by the Supreme Court ruling in Schmerber v. California 384 U.S. 757; 86 S. Ct. 1826; 16 L. Ed. 2d 908 (U.S. 1966)
With any blood, urine or hair sample taken, people give out more than just information about illicit drugs usage. Each of those samples contains wealth of personal biological data. It is possible that employers might be fishing for evidence, for purposes other than was disclosed or suggested prior to the testing. With provided biological samples employers can illegally screen potential employees and discriminate against them based on their health problems, pregnancy or even genetic makeup (Statue 42 USCS §§ 2000ff prohibits employment discrimination on the basis of genetic information). If an individual refuses to undergo the testing examination, an applicant or an employee can be terminated or simply rejected. In California case of Luck v. Southern Pacific Transportation, 218 Cal. App. 3d 1; 267 Cal. Rptr. 618; (Cal. App 1990) the court found that Barbara Luck did not have to provide urine sample to her employer based on “reasonable expectation of privacy protected under statue of Cal. Const. art I, §1,
Also the whole idea of submitting to the drug test bypasses the notion of being innocent until proven guilty, guaranteed under the due process of law. A person should not be judged until he/she has been proven guilty and the burden of producing proof should be place upon the accuser. If employers require drug testing it puts the applicants under presumption that they are already guilty and they have to come up with the proof that they are drug-free. In the case of American Federation of Government Employees v. Sullivan 787 F. Supp. 255 (U.S. Dist 1992), the Court found “no sufficient compelling government interest” to allow drug testing of all government drivers. Also in Loder v. City of Glendale the court reaffirmed that it was not justifiable to test all applicants for positions that did not require “unusual physical or ethical demands”. Loder v. City of Glendale, 14 Cal. 4th 846; 927 P.2d 1200, 59 Cal. Rptr. 2d 696, (Cal. 1997).
None of the currently available drug tests offer 100% guarantee that the results will be accurate; there is always a chance of false positive and false negative results. False positive readings might be triggered with the usage of prescription drugs while certain drugs as cocaine, heroine, or PCP vanish from the bloodstream within a few days. Making it is possible for employers to punish people who don’t use illegal drugs while leaving actual drug abusers undetected. In Doe v. Roe, Inc., 553 N.Y.S.2d 364 (App. Div.1990) New York County Supreme Court held that employers cannot dismiss applicants or current employees solely based on the positive test results as long as the employee is able to reasonably perform his/her job. In Doe v. Roe plaintiff claimed that metabolites found in his urine came from consuming large amounts of poppy seeds.
Similarly in the case of Connolly v. First Personal Bank, 623 F. Supp. 2d 928, (U.S. Dist 2008), the plaintiff’s positive drug test was caused by legally prescribed medications.
Employers conducting drug testing need to have procedures in place to make sure that taken samples are not compromised and can document the chain of custody for employees’ samples. Edgerton v Dept. of Transportation, 83 Cal. App. 4th 1350; 100 Cal. Rptr. 2d 491; (Cal.App 2000). Many employers and government agencies view workplace drug testing as an important social and economic benefit. One of the major benefits achieved by drug testing is safety; employers maintain that it is their responsibility to ensure a safe drug free environment for its workers and other members of society that might be affected by the actions of their employees. Employers often are liable if an intoxicated employee harms someone on the job. Moreover, workplace drug use also violates OSHA and state occupational safety laws.
The Omnibus Transportation Employee Testing Act was enacted in 1991, this statue 49 USCS § 20140, requires drug and alcohol testing of safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, and other transportation industries. Skinner v. Railway Labor Executives', 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639, (1989 U.S.) Also, people holding sensitive governmental and policing positions should also be subject to drug testing in order to maintain public confidence and trust in those governmental positions. “Their unimpeachable integrity and judgment outweighs those employees’ privacy interests”, National Treasury Employees Union v. Von Raab, 489 U.S. 656;109 S. Ct 1384:103 L. Ed. 2d 685; (1989 U.S.). The court utilized the “compelling government interest” test to come with a conclusion that employer advanced public safety interest by requiring pre-employment drug testing of individuals who would be responsible of operating heavy equipment along public highways superceding the Fourth Amendment rights in favor to public safety. Middlebrooks v. Wayne County , 446 Mich. 151, 521 N.W.2d 774, (1994 Mich.)
Similarly in Plane v. United States , 796 F. Supp. 1070, (U.S. Dist. 1992) the court held that random drug testing did not violate the 4th Amendment “because the government’s compelling interest outweighed the intrusion on employees’ privacy” in certain safety sensitive positions.
In the Willner case, Appellate Court determined that an applicant should expect reduced expectation of privacy during pre-employment verification, since they are provided with adequate advanced notice and always have the right to seek employment elsewhere. Ruling stated that employers possess an economic interest in new recruits. Companies and agencies spend considerable amount of money to hire and train new employees as a result they often depend on drug testing to learn if applicants are suitable for employment. Willner v. Thornburgh , 928 F.2d 1185; 289 U.S. App. D.C. 93 (U.S. App. 1991)
Drug testing in the workplaces touches upon many controversial privacy concerns and can be viewed as unwarranted invasion of privacy. But in order to create safe and productive work environment, employers should be allowed to pre-screen applicants and oversee any possible drug abuse in employees holding sensitive or hazardous positions.
At the same time, employers should have in place provisions to examine and appeal any questionable test results. U.S. courts in their drug testing decisions appear to keep a healthy balance between privacy concerns and protecting employers and public from effects of drug usage in the workplace.