Drug Testing Would Erode Constitutional Liberties

Drug testing is rapidly gaining notoriety as the answer to identifying problem employees who may be under the influence of drugs and alcohol while on the job. From the White House to the Los Angeles Board of Supervisors there have been calls to require public employees to submit to drug testing to prove that they are not under the influence of drugs or alcohol.

Proponents of drug testing argue that such tests enhance productivity while reducing absenteeism. Opponents argue that mandatory testing violates the workers’ privacy rights and can intimidate and demean workers, the majority of whom do not use or abuse drugs in the workplace.

Drug abuse in the workplace has, by all accounts, increased dramatically in recent years. Employers have responded by developing rehabilitation programs and requiring that employees submit to pre-employment drug tests. In response, both unions and employees have challenged the individual test results and the constitutionality of the tests themselves.

Thus far no court has upheld a public employer’s use of random, mandatory drug testing. The main legal obstacle to the widespread imposition of such testing is the Fourth Amendment, which protects an individual’s reasonable expectations of privacy from unreasonable government intrusion. A mandatory drug-testing policy that requires an employee to give a urine sample when requested on a random basis is clearly an unreasonable intrusion.

However, employees can be compelled to submit to a urine test if there is a “reasonable suspicion” that they are under the influence of alcohol or drugs. A reasonable suspicion can be formed if an employee is behaving erratically and may be under the influence or has previously been found to have used drugs in the workplace. An individual’s expectation of privacy is less where the government has a reasonable basis for its intrusion.

Some drug-testing advocates argue that public-safety officers, such as police and firefighters, should be subjected to random drug testing because of the sensitive nature of their work. But no court has upheld random testing for public employees, even in cases involving police, correctional officers or bus operators.

Proponents of random, mandatory drug tests are not satisfied with drug tests that are administered before employment and at yearly health-check intervals or on reasonable suspicion of drug use. They want a tougher, no-nonsense policy to be adopted by public employers: All employees should be subjected to random drug tests as a condition of employment. An employee’s refusal to take a random drug test would be treated as the equivalent of testing positive for drug use, and the hapless employee would soon be an ex-employee. A work force willing to submit to these random intrusions would result in a drug-free workplace.

This viewpoint has numerous shortcomings. First, it is supported neither in legal court decisions nor in state or federal legislation. Next, proponents seek to mandate compliance through intimidation and force, not education and rehabilitation. There is always the possibility that random testing could become a method of discrimination against unfavored employees.

What could be more destructive to work-force morale than the specter of random drug tests as a condition of employment. In this scenario an employee is presumed guilty until proved innocent. This reversal of an established principle and intrusion into individuals’ privacy rights is not just a theoretical possibility but now is being aggressively pursued by the Los Angeles County Board of Supervisors.

Even proponents of drug testing agree that test results are not foolproof and that mistakes can occur. For example, certain drugs metabolize more quickly than others. Alcohol is flushed out of the body within 12 hours, and cocaine within two or three days, while marijuana can be detected a couple of months after it is used. A positive drug test for an individual who used marijuana a week earlier on his or her own time tells an employer very little about that employee’s work performance or job impairment from drug use. These tests do not measure a drug’s effect.

The effect of drug testing in the Army, which pioneered the mass testing of enlisted persons more than two years ago, has been an increase in the use of alcohol by recruits with a decrease in the use of marijuana. Drug testing does not resolve the problem of drug use. Unfortunately, there is no quick fix for the nation’s increased dependency on controlled substances.

The Fourth Amendment guarantees our right not be subjected to random searches in our home or workplace without reasonable suspicion of wrongdoing. If random drug testing is upheld after the legal challenges run their course, each of us will be affected by the erosion of our constitutional protection against government intrusion. The next step in extending the government’s encroachment into our daily lives is too chilling to imagine.