What is Drug Testing in the Workplace?

Drug testing in the workplace involves testing prospective employees or current employees for drug use. Random drug testing of workers has steadily been increasing since 1986, leading to serious consequences such as damage to reputations, loss of privacy, emotional distress, and termination of employment.

In a research survey of 1,000 companies conducted by the AMA, it was found that over half of the responding companies had some form of random employee drug testing. With drug usage rates declining since 1979 it is believed that random, unprovoked testing is both unnecessary and unfair.

Many employees find it unfair that they have to prove their innocence when they aren't even alleged of using drugs, and that it violates their right to privacy. Since the tests cannot determine impairment, employees feel they are unnecessary to assessing job performance.

On the employer side, drug testing is an effective way to test prospect employees for drug use, or detect recent use of illicit or prescription drugs and alcohol. Drug testing can also help employers benefit from better insurance rates on such policies as worker's compensation. To make drug testing policies most effective in a company, it is important to create a clear written policy that employees are made aware of. This, combined with educational programs and supervisor training, can help reduce the number of problems and issues that may surround a company drug policy.

How is Drug Testing Conducted and How Accurate is It?

Employers are given a considerable amount of leeway in determining how a drug policy will best fit their organization. Only federally regulated organizations such as those linked with the U.S. Department of Transportation have regulations regarding their company drug testing policies.

Federal agencies conducting drug tests must follow the SAMHSA Mandatory Guidelines for Federal Workplace Drug Testing, which includes requiring a Medical Review Officer to be present during testing.

For workplace testing, the most common method of testing involves a urinalysis completed at a doctor's office or medical facility chosen by the employer. During this procedure, the employee will provide a urine specimen, usually under a controlled situation to prevent adulteration of the specimen while still allowing the individual to maintain privacy.

If following SAMHSA guidelines, the sample will be sent to a certified laboratory to complete testing. While the accuracy rate is high at these laboratories, they are only certified to test for five primary substances and alcohol. If the test results are positive, the employer will be notified. It is important to note that some medications will produce a positive result, so it is necessary to provide information on any prescribed medication that is taken.

Drug Tests: Are They Reliable?

While drug testing laboratories typically have reliable results, the drug tests used by many companies can be unreliable. The most commonly used screens can provide false positive results between 10 and 30 percent of the time. The high level of false positives tends to result from the drug screens tendency to confuse like compounds. 

Some common compound confusion that can lead to false positives includes Advil for marijuana, NyQuil for amphetamines, and Vicks Formula 44-M for heroin. Other common over the counter items that produce positive results can include Contac, Sudafed, poppy seeds, and even herbal teas. While there are tests that are considered more accurate, they are more costly and less frequently used.

Who is Given Access to the Results of an Employee Drug Test?

As with any health situation, a drug test would fall under personal health information, and employees are often required to sign a release allowing results to be shared with the employer. Since drug testing falls under the category or protected health information, an employee's history of drug use discussed with the tester may be subject to certain release restrictions.

Why Would an Employee Object to Drug Testing?

In recent years more and more employees have shown an interest in objecting to drug testing, citing a violation of privacy. As stated by the late justice of the Supreme Court Justice Louis Brandies, the "right to be left alone is the most comprehensive of rights and the right most valued by civilized men."

Many people argue that the act of performing a urinalysis, as well as the sample itself, violates this right to be left alone by disclosing private health and personal information. The Fifth Circuit Court of Appeals stated in a ruling that urinating is considered a private act, and therefore a protected entity under the law.

Other opponents argue that urine tests are degrading, and too many additional details about an employee's private life aside from drug use can be determined from a urinalysis, including other private medical information. Information that can be found from a urine test includes applicants being cared for such conditions as diabetes, heart disease, depression, epilepsy, and pregnancy.

For the reasons stated above, Supreme Court rulings have found that testing procedures such as blood tests and urinalysis constitute as a search under the Fourth Amendment.

What Are the Employer's Rights in Regards to Running a Productive and Safe Workplace?

When employees are unable to properly perform their jobs, the employer has the right to follow disciplinary action against the employee or dismiss them. This allows the employer to not only maintain a productive work environment but also a safe one.

While drug use can affect an employee's performance, unfortunately drug tests can only indicate that the employee has used the drug. It cannot measure intoxication or impairment, and cannot pinpoint the last time that the employee drug use occurred.

Some drug use, such as marijuana, can result in positive testing for weeks after the final date of consumption which prevents an inaccurate picture of the person being tested's recent drug use. So an employee could consume marijuana on a weekend night or even weeks before they began employment and still test positive for drug use. In this situation, the usage would give a positive result even though it would not interfere with job performance or ability.

On the other side of the spectrum, since a urine specimen measures by metabolism, an employee can use cocaine on the morning of a drug test and not test positive as the drug has not had time to metabolize and become present in the urine.

Employers May Use Performance Drug Tests As a Way of Protecting Their Investment

Many employer's claim to utilize performance drug testing as a way to protect their financial and time-related investment in their employees. There are often claims that employee drug use can result in significant industry costs though there is little information available to translate the cost into an actual figure.

A report issued by the U.S. Department of Labor set out to determine whether or not drug abuse has a negative or harmful impact on financial and other aspects of employment. Their findings were not able to conclusively identify any detrimental effects on employment. It was also found that results of workplace drug testing reducing accident rates and saving companies money was often misleading.

An example of one of these misleading reports included Georgia Power, which reported a reduction in accidents as a direct result of more aggressive drug testing policies. The Georgia Power accident rate did decline each year with incident rates as follows: 1981 (5.41), 1982 (2.09), 1983 (0.91), 1984 (0.61), and 1985 (0.49). The problem with the report is that the testing was not implemented until the spring of 1984 which was after the most significant drop in accidents. Therefore, referring to drug testing as being a significant factor in the decline is simply false.

There have been multiple organizations who have set out to accurately measure the correlation, if any, between drug use and job performance, including the United States Postal Service. The study was done by providing initial testing, employing both those who passed and failed, and then assessing their performance of the job later. The National Institute on Drug Abuse published the finding of these studies which showed no relationship between the applicant's original testing status and their measured performance later.

Is Drug Testing Even Legal?

There is no federal law that prohibits the practice of drug testing of workers, and in most cases, it is legal to do so. To make sure they are in compliance, it is important for employers to check all state laws that may apply to their organization before drafting and implementing their drug testing program.

For example, an applicant or employee that may have a history of addiction and alcoholism can be protected under the Americans with Disabilities Act or other anti-discrimination statutes.

What is the Legal Status of Random Employee Drug Testing?

In recent years there has been a growing push among the public employment sector's employee labor unions and civil rights community to challenge the legality of employee drug testing. Multiple court cases have ruled that urine testing done without reasonable suspicion or probable cause is a violation of a governmental employee's rights under the Fourth Amendment.

As a result, some states have enforced laws that prohibit random drug testing of workers in both the private businesses and public sectors. Yet, in most states, employees for the private sector are given no form of protection from undiscriminating drug testing.

The first court cases dealing with the concept of random drug testing was the Supreme Court's 1989 decision on two government regulated programs: the Federal Railway Administration that required testing of entire train crews following incidents or accidents and the U.S. Customs Service that required testing for current workers who requested promotions for certain positions. The language of these court cases was left very general, and although they were dealing with very specified cases, the decision, in essence, allowed the authorized testing of millions of government employees without suspicion.

These rulings seemed to contradict the rulings that required the reasonableness requirement of the Fourth Amendment as the majority ruling in the cases departed from the precedent set, and found that reasonable suspicion, probable cause, and warrants were not considered necessary in each circumstance, and therefore allowed employer drug testing to be performed without requiring suspicious activity.

Additionally, the majority decision stated that if the government could prove "special needs" then it would be allowed to subject its workforce to things like suspicion-less drug testing, personal searches, etc.

Justice Marshall expressed a dissenting opinion by challenging the "special needs" test stating that the ruling left the Fourth Amendment "devoid of meaning." Other dissenters likened the ruling to extensive public scares that shaped constitutional issues, such as the silencing of free speech during the 1950's McCarthy era, as well as the Japanese-American internment during WWII.

With the language of the decision being so broadly written, it will leave many government employees open to the possibility of being subjected to random drug tests without any required suspicion.

Justice Scalia held a dissenting opinion on the Von Raab decision, claiming that the decision can require many employees to undergo unnecessary indignity. Additionally, the Von Raab decision could lead to suspicion-less testing of many construction workers, drivers, and even crossing guards. While not all of Supreme Court Justice Scalia's predictions have come true, there have been multiple public sector drug testing programs that have been put through by the lower level courts.

The Supreme Court that is tasked with protecting employee and individual rights and these judgments are underscoring the critical role legislative bodies play in protecting employee rights.

If you need help with information on drug testing in the workplace, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top five percent of lawyers to its site. Lawyers on UpCounsel come from law schools, such as Harvard Law and Yale Law, and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.