American Civil Liberties Union                  Briefing Paper Number 5

+-----------------------------+
 DRUG TESTING IN THE WORKPLACE
+-----------------------------+

There was a time in the United States when your business was also your
boss's business.  At the turn of the century, company snooping was
pervasive and privacy almost nonexistent.  Your boss had the right to know
who you lived with, what you drank, whether you went to church, or to
what political groups you belonged.  With the growth of the trade union
movement and heightened awareness of the importance of individual rights,
American workers came to insist that life off the job was their private
affair not to be scrutinized by employers.

But major chinks have begun to appear in the wall that has separated life
on and off the job, largely due to the advent of new technologies that
make it possible for employers to monitor their employees' off-duty
activities.  Today, millions of American workers every year, in both the
public and private sectors, are subjected to urinalysis drug tests as a
condition for getting or keeping a job.

The American Civil Liberties Union opposes indiscriminate urine testing
because the process is both unfair and unnecessary.  It is unfair to force
workers who are not even suspected of using drugs, and whose job
performance is satisfactory, to "prove" their innocence through a
degrading and uncertain procedure that violates personal privacy.  Such
tests are unnecessary because they cannot detect impairment and, thus, in
no way enhance an employer's ability to evaluate or predict job
performance.

Here are the ACLU's answers to some questions frequently asked by the
public about drug testing in the workplace.

=======================================================================
Don't employers have the right to expect their employees not to be high on
drugs on the job?
======================================================================= 

Of course they do.  Employers have the right to expect their employees not
to be high, stoned, drunk, or asleep.  Job performance is the bottom line:
If you cannot do the work, employers have a legitimate reason for firing
you.  But urine tests do not measure job performance.  Even a confirmed
"positive" provides no evidence of present intoxication or impairment; it
merely indicates that a person may have taken a drug at some time in the
past. 

==================================================================== 
Can urine tests determine precisely when a particular drug was used?
==================================================================== 

No. Urine tests cannot determine when a drug was used.  They can only
detect the "metabolites," or inactive leftover traces of previously
ingested substances.  For example, an employee who smokes marijuana on a
Saturday night may test positive the following Wednesday, long after the
drug has ceased to have any effect.  In that case, what the employee did
on Saturday has nothing to do with his or her fitness to work on
Wednesday.  At the same time, a worker can snort cocaine on the way to
work and test negative that same morning.  That is because the cocaine has
not yet been metabolized and will, therefore, not show up in the person's
urine. 

=============================================================================
If you don't use drugs, you have nothing to hide -- so why object to testing?
=============================================================================
 
Innocent people do have something to hide: their private life.  The
"right to be left alone" is, in the words of the late Supreme Court
Justice Louis Brandeis, "the most comprehensive of rights and the right
most valued by civilized men." 
 
Analysis of a person's urine can disclose many details about that person's
private life other than drug use.  It can tell an employer whether an
employee or job applicant is being treated for a heart condition,
depression, epilepsy or diabetes.  It can also reveal whether an employee
is pregnant.

======================== 
Are drug tests reliable?
======================== 
 
No, the drug screens used by most companies are not reliable.  These tests
yield false positive results at least 10 percent, and possibly as much as
30 percent, of the time.  Experts concede that the tests are unreliable. 
At a recent conference, 120 forensic scientists, including some who
worked for manufacturers of drug tests, were asked, "Is there anybody who
would submit urine for drug testing if his career, reputation, freedom or
livelihood depended on it?" Not a single hand was raised.
 
Although more accurate tests are available, they are expensive and
infrequently used.  And even the more accurate tests can yield inaccurate
results due to laboratory error.  A survey by the National Institute of
Drug Abuse, a government agency, found that 20 percent of the labs
surveyed mistakenly reported the presence of illegal drugs in drug-free
urine samples.  Unreliability also stems from the tendency of drug screens
to confuse similar chemical compounds.  For example, codeine and Vicks
Formula 44-M have been known to produce positive results for heroin, Advil
for marijuana, and Nyquil for amphetamines.

================================================================ 
Still, isn't universal testing the best way to catch drug users?
================================================================ 
 
Such testing may be the easiest way to identify drug users, but it is also
by far the most un-American.  Americans have traditionally believed that
general searches of innocent people are unfair.  This tradition began in
colonial times, when King George's soldiers searched everyone
indiscriminately in order to uncover those few people who were committing
offenses against the Crown.  Early Americans deeply hated these general
searches, which were a leading cause of the Revolution.
 
After the Revolution, when memories of the experience with warrantless
searches were still fresh, the Fourth Amendment was adopted.  It says that
the government cannot search everyone to find the few who might be guilty
of an offense.  The government must have good reason to suspect a
particular person before subjecting him or her to intrusive body searches. 
These longstanding principles of fairness should also apply to the private
sector, even though the Fourth Amendment only applies to government
action.
 
Urine tests are body searches, and they are an unprecedented invasion of
privacy.  The standard practice, in administering such tests, is to
require employees to urinate in the presence of a witness to guard against
specimen tampering.  In the words of one judge, that is "an experience
which even if courteously supervised can be humiliating and degrading."
Noted a federal judge, as he invalidated a drug-testing program for
municipal fire-fighters, "Drug testing is a form of surveillance, albeit a
technological one."

=============================================================================
But shouldn't exceptions be made for certain workers, such as airline pilots, 
who are responsible for the lives of others?
=============================================================================
 
Obviously, people who are responsible for others' lives should be held to
high standards of job performance.  But urine testing will not help
employers do that because it does not detect impairment.
 
If employers in transportation and other industries are really concerned
about the public's safety, they should abandon imperfect urine testing and
test performance instead.  Computer-assisted performance tests already
exist and, in fact, have been used by NASA for years on astronauts and
test pilots.  These tests can actually measure hand-eye coordination and
response time, do not invade people's privacy, and can improve safety far
better than drug tests can.

=============================================================================
Drug use costs industry millions in lost worker productivity each year.  
Don't employers have a right to test as a way of protecting their investment?
=============================================================================
 
Actually, there are no clear estimates about the economic costs to
industry resulting from drug use by workers.  Proponents of drug testing
claim the costs are high, but they have been hard pressed to translate
that claim into real figures.  And some who make such claims are
manufacturers of drug tests, who obviously stand to profit from
industry-wide urinalysis.  In any event, employers have better ways to
maintain high productivity, as well as to identify and help employees with
drug problems.  Competent supervision, professional counseling and
voluntary rehabilitation programs may not be as simple as a drug test, but
they are a better investment in America.
 
Our nation's experience with cigarette smoking is a good example of what
education and voluntary rehabilitation can accomplish.  Since 1965, the
proportion of Americans who smoke cigarettes has gone down from 43 percent
to 32 percent.  This dramatic decrease was a consequence of public
education and the availability of treatment on demand.  Unfortunately,
instead of adequately funding drug clinics and educational programs, the
government has cut these services so that substance abusers sometimes have
to wait for months before receiving treatment.

=============================================================================
Have any courts ruled that mandatory urine testing of government employees is 
a violation of the Constitution?
=============================================================================
 
Yes.  Many state and federal courts have ruled that testing programs in
public workplaces are unconstitutional if they are not based on some kind
of individualized suspicion.  Throughout the country, courts have struck
down programs that randomly tested police officers, fire-fighters,
teachers, civilian army employees, prison guards and employees of many
federal agencies.  The ACLU and public employee unions have represented
most of these victorious workers.
 
In Washington, D.C., for example, one federal judge had this to say about
a random drug testing program that would affect thousands of government
employees: "This case presents for judicial consideration a wholesale
deprivation of the most fundamental privacy rights of thousands upon
thousands of loyal, law-abiding citizens...."

In l989, for the first time, the U. S. Supreme Court ruled on the
constitutionality of testing government employees not actually suspected
of drug use.  In two cases involving U. S. Customs guards and railroad
workers, the majority of the Court held that urine tests are searches, but
that these particular employees could be tested without being suspected
drug users on the grounds that their Fourth Amendment right to privacy was
outweighed by the government's interest in maintaining a drug-free
workplace.

Although these decisions represent a serious setback, the Court's ruling
does not affect all government workers, and the fight over the
constitutionality of testing is far from over.

======================================================================
If the Constitution can't help them, how can private employees protect 
themselves against drug testing?
======================================================================

Court challenges to drug testing programs in private workplaces are
underway throughout the country.  These lawsuits involve state
constitutional and statutory laws rather than federal constitutional law. 
Some are based on common law actions that charge specific, intentional
injuries; others are breach of contract claims.  Some have been
successful, while others have failed.  Traditionally, employers in the
private sector have extremely broad discretion in personnel matters.

In most states, private sector employees have virtually no protection
against drug testing's intrusion on their privacy, unless they belong to a
union that has negotiated the prohibition or restriction of workplace
testing.  One exception to this bleak picture is California, in which the
state constitution specifies a right to privacy that applies, not only to
government action, but to actions by private business as well. 
 
In addition to California, seven states have enacted protective legislation
that restricts drug testing in the private workplace and gives employees
some measure of protection from unfair and unreliable testing: Montana,
Iowa, Vermont and Rhode Island have banned all random or blanket drug
testing of employees (that is, testing without probable cause or
reasonable suspicion), and Minnesota, Maine and Connecticut permit random
testing only of employees in "safety sensitive" positions.  The laws in
these states also mandate confirmatory testing, use of certified
laboratories, confidentiality of test results and other procedural
protections.  While they are not perfect, these new laws place significant
limits on employers' otherwise unfettered authority to test and give
employees the power to resist unwarranted invasions of privacy.
 
The ACLU will continue to press other states to pass similar statutes and
to lobby the U.S. Congress to do the same.
 
A.C.L.U. 
American Civil Liberties Union, 132 West 43rd Street, NY, NY 10036
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