PRIVACY IN AMERICA:
Workplace Drug Testing

Legislative Briefing Kit on Drug Testing

Today, in some industries, taking a drug test is as routine as filling out a job application.

In fact, workplace drug testing is up 277 percent from 1987 – despite the fact that random drug testing is unfair, often inaccurate and unproven as a means of stopping drug use.

But because there are few laws protecting our privacy in the workplace, millions of American workers are tested yearly – even though they aren't suspected of drug use.

Employers have the right to expect workers not to be high or drunk on the job. But they shouldn't have the right to require employees to prove their innocence by taking a drug test.

That's not how America should work.

INVASION AND ERROR

However routine drug tests have become, they're still intrusive. Often, another person is there to observe the employee to ensure there is no specimen tampering. Even indirect observation can be degrading; typically, workers must remove their outer garments and urinate in a bathroom in which the water supply has been turned off.

The lab procedure is a second invasion of privacy. Urinalysis reveals not only the presence of illegal drugs, but also the existence of many other physical and medical conditions, including genetic predisposition to disease – or pregnancy. In 1988, the Washington, D.C. Police Department admitted it used urine samples collected for drug tests to screen female employees for pregnancy – without their knowledge or consent.

Furthermore, human error in the lab, or the test's failure to distinguish between legal and illegal substances, can make even a small margin of error add up to a huge potential for false positive results. In 1992, an estimated 22 million tests were adminstered. If five percent yielded false positive results (a conservative estimate of false positive rates) that means 1.1 million people who could have been fired, or denied jobs – because of a mistake.

TESTS THAT FAIL

Claims of billions of dollars lost in employee productivity are based on guesswork, not real evidence.

Drug abuse in the workplace affects a relatively small percentage of workers. A 1994 National Academy of Sciences report found workplace drug use "ranges from a modest to a moderate extent," and noted that much of reported drug use "may be single incident, perhaps even at events like office parties."

Furthermore, drug tests are not work-related because they do not measure on-the-job impairment. A positive drug test only reveals that a drug was ingested at some time in the past. Nor do they distinguish between occasional and habitual use.

Drug testing is designed to detect and punish conduct that is usually engaged in off-duty and off the employer's premises – that is, in private. Employers who conduct random drug tests on workers who are not suspected of using drugs are policing private behavior that has no impact on job performance.

ABOUT SAFETY-SENSITIVE OCCUPATIONS

Alertness and sobriety are, of course, imperative for certain occupations, such as train engineers, airline pilots, truck drivers and others. Yet even in these jobs, random drug testing does not guarantee safety. Firstly, drug-related employee impairment in safety-sensitive jobs is rare. There has never been a commercial airline accident linked to pilot drug use. And even after a 1994 Amtrak accident in which several lives were lost, investigators discovered the train engineer had a well known history of alcohol, not drug, abuse.

Computer-assisted performance tests, which measure hand-eye coordination and response time, are a better way of detecting whether employees are up to the job. NASA, for example, has long used task-performance tests to determine whether astronauts and pilots are unfit for work – whether the cause is substance abuse, fatigue, or physical illness.

Drug tests don't prevent accidents because they don't address the root problems that lead to substance abuse. But good management and counseling can. Employee assistance programs (EAPs) help people facing emotional, health, financial or substance abuse problems that can affect job performance. EAP counselors decide what type of help is needed: staff support, inpatient treatment, AA meetings, and the like. In this context, the goal is rehabilitation and wellness – not punishment.

Employers need to kick the drug test habit.

SOURCES: American Management Association survey, "Workplace Drug Testing and Drug Abuse Policies"; R. DeCresce, Drug Testing in the Workplace (BNA, 1989); Under the Influence? Drugs and the American Workforce, National Academy of Sciences, 1994; J.P. Morgan, "The 'Scientific' Justification for Urine Drug Testing," University of Kansas L.R., 1988.

WHAT WE ARE DOING

Privacy – the right to be left alone – is one of our most cherished rights. Yet because so few laws protect our privacy, the ACLU's campaign for privacy in the workplace is very important – particularly in the private sector.

The ACLU is working in the states to help enact legislation to protect workplace privacy rights. We have created a model statute regulating workplace drug testing. In 1996 the ACLU launched a public education campaign to help individuals across the nation become aware of the need for increased workplace privacy rights. Our educational videotape Through the Keyhole: Privacy in the Workplace – An Endangered Right was featured on national television and at union meetings and other gatherings nationwide.

Much more work remains to be done. As of mid 1997, only a handful of states ban testing that is not based on individual suspicion: Montana, Iowa, Vermont, and Rhode Island. Minnesota, Maine and Connecticut permit not-for-cause testing, but only of employees in safety-sensitive positions. These laws also require confirmation testing, lab certification and test result confidentiality.

Hawaii, Louisiana, Maryland, Nebraska, Oregon and Utah regulate drug testing in some fashion; Florida and Kansas protect government employee rights, but not those of private sector workers. Only in California, Massachusetts and New Jersey have the highest courts ruled out some forms of drug testing on state constitutional or statutory grounds. The ACLU is now continuing our efforts to protect workplace privacy rights. You can help.

WHAT YOU CAN DO

1) Learn more about the issue. Order a copy of our video Through the Keyhole: Privacy in the Workplace – An Endangered Right and share it with family, friends, and co-workers ($7 plus shipping, call 800-775-ACLU to order.) Feel free to duplicate the tape at will.

2) Get a copy of our 1996 report, Surveillance Incorporated., which documents the increase in various forms of employer surveillance and breaks down privacy laws state by state. This free report is available through our website or our 800-number.

3) Write your elected officials urging them to support workplace privacy legislation. For tips on writing your elected officials as well as sample letters, visit the "In Congress" section of our website under "tips" or send a request entitled "tips request" to KearneyCLU@aol.com or fax (202) 546-1440.

4) Want to do more? Contact the ACLU's Campaign for Fairness in the Workplace to find out how you can personally help to get legislation passed. Write ACLU Campaign for Fairness in the Workplace, 166 Wall Street, Princeton, NJ 08540, fax (609) 683-1787 or e-mail Rebloclu@aol.com.

JOIN

Become a member of the ACLU and help support our efforts to protect the right to privacy. Write us at ACLU — Membership Department, 125 Broad Street, New York, NY 10004