By Kent Willis, Executive Director, ACLU of Virginia
Indiscriminate testing of employees for drug use is an intrusive and degrading process that undermines our most deeply held tenets of fairness and privacy in the workplace. It should not be surprising, then, that a recent study concluded that workplace drug testing lowers productivity. What is surprising is that, despite these obvious liabilities, employers continue to make drug testing in the workplace a growth industry in the United States.
Although employees of private companies are not entitled to the same constitutional protections as public employees, private employers could benefit from reading court rulings on drug testing in the public-sector workplace. Arcane as the courts can be, we rely on them to interpret constitutional principles for us in meaningful ways that ultimately become part of our culture.
Our courts have consistently held that random drug testing of public employees violates the Fourth Amendment's prohibition against unreasonable searches. Drug testing may take place only in those rare instances when a special societal need outweighs the employee's privacy interest. Thus, employees who operate mass transit equipment or customs agents who carry firearms may be randomly tested for drugs, while the vast majority of public employees may not.
Still, employers may order drug tests of individual employees when they suspect that drugs are affecting that person's productivity. Although this is neither the wisest nor the most effective approach to an employee with a drug problem, at least it respects the important line we in this society draw between a random search and a search based on individualized suspicion.
Some employees may indeed be going to work under the influence of illegal drugs, but does that justify testing every employee at random? Using this reasoning, the police should fight crime by indiscriminately entering homes and rummaging through our drawers looking for contraband. Fortunately, the Fourth Amendment was conceived precisely for the purpose of preventing this kind of abuse of authority, and we all seem to understand it in this context. Should we not apply similar principles to the workplace?
Beyond these important principles, there are very real and injurious consequences to drug testing that its advocates seldom mention. Urinating into a bottle at work under the watchful eye of security personnel is, as one judge put it, "an experience which even if courteously supervised can be humiliating and degrading." And, while drug testing methods have improved in recent years, the most commonly used techniques still yield false positive results on a regular basis. This means that model employees who have never touched an illegal substance in their lives may lose jobs or promotions based entirely on erroneous information.
These tests also interact with other drugs, so the test evaluator needs to know if the employee is being treated for a heart condition, depression, diabetes, or any other illness or disability. This is not information we want to share with our employer so long as the condition does not affect work performance.
Although some drug testing advocates recommend a kind of due process, whereby companies that drug test their employees create safeguards to protect privacy and increase accuracy, nothing in Virginia law requires it. Drug testing is expensive for employers: it costs to have the tests analyzed and to employ personnel to oversee the tests, and its takes employees away from their jobs. The higher the quality of the testing procedure and the more safeguards that are in place, the more expensive the testing. In the end, will not most employers resorting to the cheaper, less reliable tests and avoid the time consuming procedures that allow employees to contest the accusation of drug use?
Not only should employees object to random drug testing, but employers should be aware of a recent study, the first of its kind, which demonstrates that employers who institute random drug testing programs are taking a significant business risk. The study, which was published last fall by the Le Moyne College Institute of Industrial Relations, analyzed 63 firms and concluded that both pre-employment drug testing and random drug testing had a significant negative impact on worker productivity.
The experiment measured only the actual impact of random drug testing, but apparently did not attempt to answer why it occurred. Could it be that employers with invasive drug testing polices demoralize workers? Or that they create so much resentment in the workplace that productivity decreases purposely? Whatever the reason, employers who adopted random drug testing policies get the opposite of what they bargain for, as productivity goes down, not up.
In the eighties, when it became obvious that employers were using polygraph testing to invade the privacy of employees, Congress regulated its use. It is now illegal for private sector employers involved in any interstate commerce to polygraph employees on a random basis. Instead, an employer must have individualized suspicion that an individual employee has committed a crime or violated company policy in order to use a polygraph.
As more employers adopt random drug testing policies and more employees are abused and outraged by it, the argument for regulation is strengthened. Having noticed the deleterious effects of drug testing in the workplace, a dozen states have passed legislation to regulate it.
Virginia legislators have had two opportunities to regulate drug testing in the workplace. Twice in the early nineties, bills were introduced to ban random drug testing unless the employee occupies a position where security or safety is at risk. These bills also regulated the drug testing procedure so as to diminish the likelihood of employees losing their jobs from false positive results. Sadly, neither bill received a single vote.
The right of privacy, said Supreme Court Justice Louis Brandeis, "is the most comprehensive of rights and the right most valued by civilized men." When we go to work, we voluntarily give up certain pieces of our privacy in order to be productive employees. But other pieces of it -- with whom we associate during our non-work hours, what we ingest, or what medications we take-- should remain private so long as our work performance is unaffected.
The lack of legislation to control drug testing has allowed the trend toward more random drug testing in the workplace to expand Big Brother's territorial rights. He no longer lurks solely in the shadow of big government, but can now be found in the hallways of the private workplace as well. It is a trend we should not tolerate.
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