Drug Screening

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Among employers, there is growing awareness of yet another factor with regard their employees’ health that they have to take into account. The apparent prevalence of illegal drug use at work has, in the United States, led private companies to ask workers to submit to drug tests either as a requirement for getting the job, or on a random basis.

There are two main sides to this issue that will be explored. First, the company’s responsibility for employee and workplace safety (with regard to employee drug use). Second, is the employee’s right to privacy. Some would argue that indiscriminate testing of employees for drug use is an intrusive and degrading process that undermines fairness and privacy in the workplace. Is drug testing a growth industry? Do the employee’s fourth amendment rights exceed the company’s responsibility to provide a safe environment? In addition, we will investigate the effectiveness of random drug testing, as well as, the possible drawbacks.

We as business managers and leaders must discover the truth of issues, such as this, in order to make informed and appropriate decisions. These choices will affect employees, families, customers and society in many ways. Thus, we cannot afford to ignore the question… “Should employers be allowed to screen employees for drugs randomly”?

Introduction

In the United States today, as well as in many other countries around the world, drug use and abuse has become a serious problem. Government and private employers want work places to remain free of all drugs. These measures have included the use of mandatory drug testing and counseling for those found to be using drugs. Statistics indicate that about 70% of illegal drug users are employed. These same individuals are at risk for on-the-job accidents, increased absenteeism, high usage of medical care and emergency room services, as well as being more likely to negatively affect productivity, morale, and the company’s bottom line. More and more employers are turning to drug testing as a means of creating a safer workplace.

Employees

Possible drawbacks of random drug screening are varied and the damage to an employee with a positive result from a mandatory drug test can cause life long damage. Though it may be a greater problem for the employer, if more accurate tests would prevent a false positive result, then they should bare the cost of that test. Before results are made known, an employee should have the right to discuss drug use with his personal physician and with his employer so that no injustice is done.

Right to Privacy

The most important issue comes to happen when mandatory drug tests are imposed. Are the rights of the individual removed by the need for a drug-free workplace?

Other considerations involve the infringement on individual’s rights to privacy. There is no mention in the Bill of Rights to the right of privacy but it is implied by the Fourth and Fourteenth Amendments to the Constitution of the United States. But “the issue no longer appears to be whether it is reasonable and appropriate for employers to implement such programs. Rather, the question is how these programs can be conducted fairly and effectively” (Walsh, 1991, p. 168).

The courts have decided that the greater need for safety in certain industries and in certain positions “alone led to a diminished expectation of privacy” (Ibid.).

Responsibility of Employers

There is no doubt that drug testing is a necessary requirement to make sure that employees in sensitive and public positions are free from drugs, but to also insure the safety of the general public when coming in contact with these individuals. The balance necessary to insure that individual rights are not violated, creates a responsibility on employers and laboratories to insure that the testing procedures are accurate and un-contaminated. Employers have the responsibility to be sure that their testing procedures are the most accurate available.

Employers also need to bear in mind that the smoking of a single marijuana cigarette at a New Year’s Eve party should not cause an employee to lose his job and his reputation three months later in March. They also need to know that watching an employees performance on the job could show that he has a problem with alcohol, cocaine or hallucinagenics that might not show up on a test.

Effectiveness

The use of a second, confirmatory screening of positive drug tests is a procedure widely agreed upon as essential for reliable test results. However, Cropanzano and Konovosky (1993) cite a survey finding that of 177 organizations that do drug screening, 32% relied only on the initial screening without a second confirmatory test.

Another issue has to do with the relationship between the time at which the company becomes aware of use through a positive, drug-test result and when the actual usage took place. Drugs vary in their period of detect ability through urine or other forms of drug testing. Different types of drug use are detectable for different periods of time after use depending on the type of drug test (I.e., urine, blood, hair analysis), and the reliability of each type of test is variable for each drug that is tested.

Despite the problems with inaccurate drug test results, the practice appears to be here to stay. However, employees who are tested positive for drug use do have an alternative. Many companies use a urinalysis-screening test that has an error rate of about five percent; employees probably have the right to a second, more accurate test.

The most common tests used are called the “enzyme multiplied immunoassay (EMIT) and radio immunoassay (RIA) tests. A much more sensitive and accurate test is the gas chromatography mass spectrometer test (GCMS). However, the second test is very expensive and the employer may not be responsible or willing to pay the cost. If the employee decides to challenge his positive result, he may have to bare the cost of the second test.

An important consideration regarding marijuana is the fact that the active ingredient has metabolites that can be detected up to three months after use. These are fat-soluble therefore a heavy person will remain positive to testing much longer than a thin one. The tests currently used show use, but not impairment. On the other hand, drugs such as cocaine are water-soluble and leave the system within hours. LSD and other hallucinagenics are undetectable by urinalysis, even if the user is currently “high.” For this reason, drug testing is likely to detect marijuana users only, frequently long after smoking (Verespej, 1990, pp. 47 – 48).

Rehabilitation vs. Dismissal

If an employee tests positive for drug use, what should the next course of action be? Is this defined in policy? If your policy states that immediate termination is a must then nothing more is to be said. But is this fair? Should an employer give the employee the opportunity for rehabilitation? Rehabilitation has a high success rate when tied to job retention because the job is often the only stability the drug abuser has. (Blum, 1989)

Relationships with family or spouse may have already disintegrated, but the threat of losing a job usually cuts through any form of denial the individual may have regarding his or her drug usage. This creates a lot of leverage, and ultimately the employee will need to make a decision between the job and the drug.

The choice becomes concrete when, as part of the return-to-work agreement, he or she agrees to submit to random testing at the employer’s discretion. The successfully rehabilitated employee is generally a very loyal employee. The commitment the employer has demonstrated is a lifeline tying the employee to a sense of purpose and stability, as well as to an income.(Blum, 1989)

Applicable Laws

“Drug abuse in the workplace has become a common and widespread problem. To help win the war against drugs . . . drug tests have been instituted in many areas of the public and private sector

(Bradley, 1989 p. 175). The modern war against drugs is not a new thing. As early as 1972, “President Richard M. Nixon said he would begin ‘a total war against dangerous drugs. (Cate, 1991, p. 3). Former President Ronald Reagan did the same in 1986 with Executive Order 12564, establishing the Drug-Free Federal Workplace (Executive Order No. 12564, Vol 51. No. 180, September 17, 1986).

In 1988, Congress followed President Reagan’s lead by enacting Public Law 100-690 on November 18, 1988 entitled, the “Drug-Free Workplace Act of 1988.” This new law established guidelines for both federal agencies and any private contractor doing business with the federal government. The Act required these employers to establish programs to get rid of drugs in the workplace. It further required employers to establish:

“a drug-free awareness program to inform employees about – the dangers of drug abuse in the workplace; the . . . policy of maintaining a drug-free workplace; any available drug counseling, rehabilitation, and employee assistance programs; and the penalties that may be imposed upon employees for drug abuse violations” (Drug Free Workplace Act of 1988.)

One of the ways in which the drug-free workplace was to come about was through mandatory drug testing of employees. Most of the drug tests are accomplished through urinalysis, a practice that has problems because of inaccuracy.

As authorized by Executive Order 12564 and PL 100-71, the Department of Health and Human Services (HHS) has issued ‘Mandatory Guidelines for Federal Workplace Drug Testing Programs.’ These ‘mandatory guidelines’ established federal standards for conducting urine drug testing on Federal employees, and certification standards for laboratories which would test these specimens (Finkle, Blanke and Walsh, 1990, p. 3.)

Company Policies

There are many ways an employer can take responsibility for providing a safe work environment. First, they must decide on a policy. Employers can choose the circumstances under which they would want to do drug testing. Pre-employment, random, post-accident and/or reasonable suspicion drug testing is available. Programs can be tailored to employers’ needs.

Next, you must write the policy. Decide on a company message and the outcomes if someone were to test positive for substance abuse. Ask yourself, what would you do if an employee tested positive for drugs? Do you want zero tolerance or an option to offer a second chance and counseling? A very important factor is to see an attorney to discover legal issues regarding policies you want to create.

Work with labor unions if necessary and inform employees. Above all be consistent. All employees need to be treated equally when implementing a policy. Show your employees that you are aware and watch for symptoms of drug or alcohol abuse. Red eyes, slow or slurred speech, the smell of alcohol or a decrease in productivity are signals. Theft in the workplace may be another indicator that you have an employee with a drug problem.

The Drug Screen Industry

Is drug screening an industry? Marianne Costantinou of the San Francisco Chronicle asserts that “All told, 67 percent of the nation’s largest companies test their employees or applicants for drugs, according to a 2001 survey by the American Management Association, a New York consulting firm that claims to have 7,000 corporate clients representing one-fourth of the U.S. workforce.

And though the percentage of companies who test is down from its peak – 81 percent in 1996 – it still means that each year, millions of workers are giving more than just their best effort to the job.” (2001) Costantinou goes on to say “The result is that drug testing is big business. Just one drug- testing company, SmithKline Beecham, now called GlaxoSmithKline, did 24 million drug tests in a decade, from 1988 to 1998, according to the Chicago Sun-Times.

Though one of the nation’s largest labs, they’re hardly alone in what Standard & Poor’s values as a $5.9 billion industry. The Drug & Alcohol Testing Industry Association (DATIA), based in Washington D.C., has 1,100 members, including drug labs, collection facilities and equipment makers. And its membership roster, says its executive director, Laura Norfolk, “is just the tip of the iceberg.” (2001) These kinds of facts indicate that drug screening is quite likely a huge industry. On the other hand, what price do we place on workplace safety?

Results and Conclusions

In a survey conducted at the University of Phoenix Online, graduate and undergraduate students were asked the following questions in order to further explore the main issues with regard to random drug screens.

1. Do you feel that an employer should randomly drug screen employees in order to ensure safety in the workplace?

2. Would you feel safer knowing that policies are in place, with regard to random drug screening, to insure safety in the workplace?

3. Do you feel that a positive drug screen test should result in a second screen to verify results?

4. Do you feel that drug screens are accurate?

5. Do you consider drug screening an industry?

6. Should positive random drug screen results be cause for termination?

7. Should a positive random drug test result in company-sponsored rehabilitation?

8. Do random drug screens violate fourth amendment rights?

9. Are there negative effects, on employees, due to the random drug screen process?

The student’s responses indicate a strong desire to have safety in the workplace through random drug screens. 90% said that employers should perform random drug screens and over 70% said that they would feel safer with these policies in place. Also, over 70% of students surveyed produced a major indication that drug screening does not violate the employees right to privacy.

There are clearly many pros and cons to this highly controversial issue. But there seems to be a predominant intolerance for drug use in the workplace. Company responsibility to adhere to applicable laws, as well as, provide a safe work environment (for all) seems to take precedence over the employees right to privacy if policies are implemented in the interest of fairness. In this way, the employees right to privacy is not allowed to encroach upon the rights of others to pursue their work and daily life in relative safety.

References

Blum, T.C. 1989 The presence and integration of drug abuse intervention in human resources management. In Drugs in the workplace: Research and evaluation data, eds. S. Gust and J.M. Walsh. NIDA Research Monograph 91

Bradley, Gregory. “Drug Testing in the Workplace: A Public Sector Concern.” Howard Law Journal 32:1 (1989): 175.

Cate, Fred H. “The Tenth Strategy: Communications and the Fight for a Drug-Free America.” The Annenberg Washington Program in Communications Policy Studies of Northwestern University 1991:3.

Costantinou, Marianne. The American Way. San Francisco Chronicle August 2001

Cropanzano, R. and Konovsky, M. Drug use and its implications for employee drug testing. Research in Personnel and Human Resources Management 1993

“Drug Free Workplace Act of 1988.” Public Law 100-690 18 Nov. 1988.

“Drug Testing is Here To Stay.” USA Today Special Newsletter Edition Dec 1989: 8.

Executive Order No. 12564, vol 51. No. 180, 1986.

References

Finkle, Brian S., Robert V. Blanke, Michael

Walsh. “Technical, Scientific and Procedural Issues of Employee Drug Testing: Consensus Report.” U.S. Department of Health and Human Services 1990: 3.

Verespej, Michael A. “Death Blow for Random Testing.” Industry Week, July 2, 1990, pp. 47 – 48.

Walsh, J. Michael. “Drug Testing in the Private and Public Sectors.” Reprinted from Bulletin of the New York Academy of Medicine.

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