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The controversy continues.

THE CONTROVERSY CONTINUES

DRUG ABUSE IN THE UNITED States has become a volatile and dire problem warranting greater attention than it has been given. From an employer's perspective, the pervasiveness of drugs in the workplace has led to serious consequences in the work environment, including increased absenteeism, increased tardiness, increased accidents, and decreased productivity. Moreover, employers are concerned about the possibility of employees who abuse drugs stealing from the company to support their addiction.

In an attempt to better protect their assets, many companies have implemented prescreening and drug testing programs. However, drug testing is an extremely controversial issue, one in which the potential ramifications for the employer are significant. Therefore, many employers are proceeding with caution and waiting until specific laws regarding drug testing are promulgated more definitively.

The controversy revolves around the legal and ethical issues of drug testing, including invasion of privacy, erroneous testing methods, and the potential for discrimination. What follows is a comprehensive discussion of drug testing from both employer and employee perspectives.

From an employer's perspective, two of the most controversial issues are prescreening prospective employees for drug abuse and testing existing employees. Despite the controversy, evidence strongly suggests these solutions are effective. Questions have been raised, however, about the efficacy and intrusiveness of prescreening and testing. Some employers are wary about implementing such programs for fear of lawsuits.

Currently, no constitutional barriers exist to preclude companies from prescreening or testing. In fact, in the private sector there has been no definitive ruling by a US appeals court or the US Supreme Court.[1]

However, specific state laws have been promulgated to enforce requirements for employers regarding drug screening and testing. For the most part, these statutory laws are geared toward protecting employees' rights to privacy; however, they are not as protective as the rights of employees with more commonly accepted handicaps.

As an example of the kind of protection given to employees who abuse drugs, consider this: "In grievances filed by employees terminated for using or possessing drugs and alcohol, arbitrators have tended to determine rulings following guidelines of fair play, reasonable notice, and substantive proof."[2] Some statutory laws also indicate that policies for employment applicants should differ from those for existing employees if employers want to avoid lawsuits.

When companies conduct preemployment drug tests, the following guidelines are advisable, despite the fact that there are no legal limitations to such testing programs:

* Notify the applicant of the drug screening. There is no legal requirement that this be done; however, it does help to avoid claims of invasion of privacy.

* Make sure test results are valid. Any positive test for drugs should be repeated before a decision is made. Use only reputable doctors and independent laboratories for analysis.

* Ensure confidentiality. Under no circumstances should this information be revealed to anyone other than the applicant. In fact, an applicant should be advised that the physical results were unsatisfactory.[3]

When companies conduct drug tests of current employees, the following guidelines are advisable:

* Any policy or procedure implemented must be consistently administered. Failure to be consistent may lead to charges of employment discrimination and to unionization attempts.

* The policy should spell out prescription drug use, including what types of drugs need to be declared to company supervision.

* Substantive proof of drug use is required. One distinguishing characteristic between drug and alcohol abuse is that many supervisors can detect alcohol intoxication. A drug abuser may have more subtle indications of problems.[4]

According to one author on the subject, "While employer response in dealing with substance abuse has included a broad range of approaches, including preemployment inquiries, employee testing, searches of employees and their property, employee assistance programs, and specific personnel policies, drug testing has received the most attention."[5] The reasons for this attention are abundant--drug testing is intrusive by nature, it can produce erroneous results, it may fail in indicating if an employee's performance is impaired by a drug, and it can create union relations difficulties.

One of the most critical components of a drug screening and testing program is employee and union support. Support can be gained by involving employees and union members in the policy and procedure decision making process prior to implementation. When employees are involved, they are more likely to feel ownership of the program and be supportive.

Employees should be given ample notice regarding the implementation date. In response to an American Management Association survey one company recommends, "Plan slowly with a lot of involvement at every level, salaried and unsalaried, union and nonunion. The policy must precede testing. The legal uncertainty surrounding the issue of drug testing underscores the importance of a written company policy; only one out of 10 firms now testing is doing so without a written policy or clear rationale."[6]

To minimize legal risks as well as implement a program that is less intrusive and offensive to employees, employers should limit testing to circumstances where there is reasonable suspicion. The only exception should be in cases where the safety of other employees or the public is at stake.

Although random, blanket medical screening is legal at the moment in the private sector in all cases where employees are unorganized, and in the public sector in many instances, it is unlikely to remain so once the issue is thoroughly tested in the courts. Once the courts weigh the employer's right to operate a safe and productive workplace against the individual's right to privacy, due process, and other constitutional guarantees, they will likely make public safety, reasonable suspicion, probable cause, and compelling interest (business necessity) the tests of legality in the private sector as they already have in the public sector.[7]

Test methodology should be selected extremely carefully. The most reliable tests are gas chromatography/mass spectrometry (GC/MS), but they are expensive. A reputable, independent laboratory should be used. All work should be performed by the same laboratory to ensure uniformity of test results and procedures.[8]

Training executives and managers to identify the symptoms of drug abuse is also critical to the success of a drug screening and testing program. When executives and supervisors are better equipped to identify symptoms, both the employer and employee will be better served.

Employee assistance programs (EAPs) should be included in most employer drug programs. Where it is not economically feasible for an employer to support an EAP, participating in community-based assistance programs or expanding insurance coverage to include treatment for chemical addiction is advised. An employer thereby makes a statement to its employees that suggests support, confidence, and consideration, and the effects most likely will translate into improved employee morale. In addition, the employer is more likely to avoid litigation.

FROM AN EMPLOYEE'S PERSPECTIVE the following concerns are raised when employers use drug testing.

* All screening or testing methodologies raise issues regarding invasion of privacy.

* Some screening tests are of questionable accuracy.

* Testing may not produce results that are relevant to effective performance.

* There is a risk of undue disclosure of results.

* Employers may not offer employees participation in rehabilitation programs.

James Wrich, president of Employee Assistance Services for Parkside Medical Services Corporation in Chicago and a recovering alcoholic, claims "Drug testing programs are based on a number of questionable assumptions, many of which were proven false by programs instituted as long ago as the 1940s to deal with alcoholism."[9] He feels drug testing from the employer's perspective assumes

* that supervisors are adequately trained to recognize the telltale signs and symptoms of substance abuse,

* that supervisors will find reasonable suspicion an adequate basis for referral,

* that supervisors can be motivated to make such referrals,

* that testing will be accurate,

* that the positive tests will be accurately interpreted, and

* that the imposition of treatment or disciplinary action will be appropriate and employees will respond appropriately to whichever course is pursued.[10] Not only are those assumptions unrealistic today, but in retrospect, an evaluation of programs implemented to combat alcoholism proved those assumptions overoptimistic.

Unequivocally, two of the most poignant issues arising from testing are the invasion of individual privacy and the intrusiveness of the methodology. Robert T. Angarola, a lawyer with the Washington, DC, law firm of Hyman, Phelps, and McNamara says, "There are two sources of our notion of the right to privacy. The first is simply an individual's belief in what aspects of his life are private and what are public. Most people seem to have some feeling that urinalysis testing somehow invades their personal sense of privacy. This is an important objection, and an employer may choose to honor it if he wishes. For example, several years ago the AFL-CIO published an official statement declaring workplace surveillance devices to be an invasion of privacy.

"The second notion of right to privacy comes from most people's belief that the United States Constitution guarantees a right to individual privacy. There is no right to privacy mentioned in the US Constitution. The courts have implied such a right by looking at the entire Bill of Rights and combining several of the provisions dealing with other rights, such as free speech and due process. But the right to privacy that the courts have established is strictly limited."[11]

Privacy concerns are particularly heightened when employees are subjected to urinalysis or blood tests. The concern is exemplified by the fact that several states have extended constitutional rights to privacy in the private sector--Alaska, Arizona, California, Florida, Massachusetts, Montana, and Rhode Island.

For states that have not addressed the issue of privacy, the "courts may fashion protection as a matter of common law by expanding various tort theories now developing in the employment field. As an example, in the Restatement, Second, Torts, the right of privacy is described as including the right to be free from unreasonable intrusions where there is reasonable expectation of privacy."[12]

There are jobs, however, in which drug testing seems more appropriate--for example, jobs where an employee is responsible for the safety of others. Such employees might be bus drivers, air traffic controllers, airline pilots, train engineers, police officers, or firefighters. According to one legal article, "An important criterion in a drug screening program should be that the workers in the program be persons who, if working while intoxicated, would pose a substantial danger to themselves, other persons, or property. Without a showing of substantial danger in the employee's work, the need for drug screening would not outweigh employee's privacy interest."[13]

Several cases have led the way in indicating the unchallenged appropriateness of drug testing given the preceding criterion. In Division 241 Amalgamated Transit Union v. Suscy, 538 F. 2d 1264 (7th Cir. 1976), the federal appeals court in Chicago held that city bus drivers should be subjected to urinalysis and blood tests without violation of their privacy rights where tests only were required following serious accidents or when the drivers were suspected of being under the influence of drugs.

In Turner v. Fraternal Order of Police, 500 A. 2d 1005 (D.C. App. 1985), another federal court of appeals held that the public interest warranted urinalysis for the purpose of eliminating police officers involved with drugs who might compromise public safety.

In Allen v. City of Marietta, 601 F. Supp. 482 (N. D. Ga. 1985), a case concerning employees who worked with high-voltage wires, a district court upheld the testing of employees involved in accidents who were suspected of drug use. The court held that durg testing was not unreasonable, since the state's interest in ensuring that work performed by employees engaged in extremely hazardous tasks was safely performed outweighed the employees' constitutional protection from unreasonable searches and seizures.[14]

Employee concerns regarding discriminatory drug testing have also escalated recently. Title VII of the 1964 Civil Rights Act strictly prohibits employers from discriminating against people because of race, religion, color, sex, or national origin.

"Thus" one author writes, "an employer could be required to prove the job-related nature of a test where it had an adverse impact and excluded a high proportion of minorities or women. In the only major decision on this issue New York City Transit Authority v. Beazer, 440 U.S. 568 (1969), the Supreme Court found that the plantiff was unable to prove that a transit district's anti-drug rule discriminated against Blacks or Hispanics."[15]

Employees also feel testing should be subjected to some general legal standard of fairness. "If pushed to define their objection, these people often point out that drug detection programs are aimed at blue-collar employees, while exempting executive and managerial personnel."[16]

In reality, the laws do not require employers to test all employees. It is not discriminatory to test only specific employees if the employer has a legitimate reason for limiting the testing.

Defamation and disclosure of test results that may prove injurious are also issues of concern for employees. If employers mishandle testing procedures and results, the repercussions for those tested may be irrevocable. "Defamation occurs in the employment setting when an employer discloses to a third party false information that injures an employee's reputation."[17] Defamation has the following four elements:

* The defamatory words must concern the plantiff.

* The words must be published; the intent to publish, not the intent to defame, is the required intent.

* The published material must be false and must damage the plantiff's reputation (in some cases damages may be presumed).

* In the case of public figures, malice must be proven, but in the case of private individuals, the plantiff need only show negligence.[18]

The reliability of drug tests also concerns employees. Five tests are used to detect the presence of controlled substances--radio immunoassay (RIA), enzyme-multiplied immunoassay technique (EMIT), thin-layer chromatography (TLC), gas chromatography (GC), and gas chromatography/mass spectrometry (GC/MS).

Most employers use RIA, EMIT, or TLC because they cost less to administer--between $20 and $35. Not surprisingly, these tests have serious reliability problems because they are "nonspecific, broad-spectrum tests that identify a broad class of organic chemicals, not a particular molecule of a specific chemical."[19]

Moreover, these tests do not adequately detect the difference between a casual user and an abuser. Since detection depends on when the drugs were used last, abusers can "feign illness and postpone their tests long enough to free their bodies of the drug and its metabolites."[20]

The RIA, EMIT, and TLC tests are also ineffective in distinguishing between casual drug use and use that impairs job performance. Casual users, therefore, are apprehensive about positive test results--those revealing only traces of marijuana--because tests may inappropriately identify them as employees whose job performance is impaired.

Also, positive results may in fact be false. "Even if the test is accurate, the mere indication of the drug does not tell us whether the employee has used the drug once or a hundred times--or at all."[21] False positives may result from carelessness on the part of laboratories such as "mislabeling urine or transposing results, or from improperly cleaned equipment, incompetence, or out-and-out fraud."[22]

One study suggests the number of false positive test results may be significant. "Several years ago, the Navy found that more than 30 percent of positives were erroneous. In one methadone maintenance program, accuracy was no better than 50 percent."[23] It's no wonder employees are concerned about participating in a drug testing program which includes a methodology proven to be so questionable and unreliable.

If implemented carefully with specific considerations and sufficient communication and education, a drug screening and testing program can be effective for employers and fair to employees. According to an article in the Labor Law Journal, "While the individual employer may properly feel limited in its ability to influence the scope of drug use throughout American society, every company can take certain measures to limit substance use and dependency within its work force and ensure that drugs have a minimal impact on business operations."[24]

[1]David D. Schein, "How to Prepare a Company Policy on Substance Abuse Control," Personnel Journal, July 1986, p. 30. [2]Schein, p. 31. [3]Schein, p. 35. [4]Schein, p. 35. [5]Barry A. Hartstein, "Drug Testing in the Workplace: A Primer for Employers," Employee Relations Law Journal, Volume 12, p. 577. [6]Dale Masi, "Company Responses to Drug Abuse from AMA's Nationwide Survey," Personnel, March 1987, p. 44. [7]Jan P. Mucsyk and Brian P. Heshizer, "Mandatory Drug Testing: Managing the Latest Pandora's Box," Business Horizons, March-April 1988, p. 21-22. [8]Hartstein, p. 603. [9]James T. Wrich, "Beyond Testing: Coping with Drugs at Work," Harvard Business Review, January-February 1988, p. 120. [10]Wrich, p. 121. [11]Robert T. Angarola, "Drug Testing in the Workplace: Is it Legal?" Personnel Administrator, September 1985, p. 80. [12]Hartstein, p. 590. [13]Mark A. Rothstein, "Screening Workers for Drugs: A Legal and Ethical Framework," Employee Relations Law Journal, Vol. 11, p. 425. [14]Hartstein, p. 577. [15]Hartstein, p. 593. [16]Angarola, p. 86. [17]Richard I. Lehr and David J. Middlebrooks, "Workplace Privacy Issues and Employer Screening Policies," Employee Relations Law Journal, Vol. 11, p. 410. [18]Lehr, p. 410. [19]Muczyk, p. 15. [20]David Bearman, "The Medical Case Against Drug Testing," Harvard Business Review, January-February 1988, p. 86. [21]Bearman, p. 126. [22]Bearman, p. 126. [23]Bearman, p. 126. [24]Peter A. Susser, "Legal Issues Raised by Drugs in the Workplace," Labor Law Journal, January 1985, p. 54.

Wendy D. Farina is a senior consultant for the merchandising consulting practice of Peat Marwick Main & Co., certified public accountants, in Montvale, NJ.
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Title Annotation:drug testing
Author:Farina, Wendy D.
Publication:Security Management
Date:Feb 1, 1990
Words:2918
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