Drug Testing

With all the attention being paid to the Big Brother-ish activities of the government, not a lot of attention is being given to the intrusiveness of the corporate world. And when some attention is given to corporate “curiosity” it’s usually in reference to your boss reading your emails or listening to phone calls over company phone lines. What isn’t given much attention, and is in fact considered right and reasonable, is drug testing.

More and more companies use drug testing as some kind of screening, whether it be post-accident, pre-promotion, random,  or as a prerequisite for hiring. Several different arguments are used to justify this practice. The main rationales fall into several main categories: one of these categories is safety. It could be argued that drug use on the job could cause one to behave in an unsafe manner. For example, employees who drive fork lifts, use knives, or operate heavy machinery (including motor vehicles) could pose a danger to themselves and others if under the influence while at work. Another area would be productivity. An employee who is under the influence of drugs would in general be likely to move slower, and in many cases even think slower than someone who isn’t under the influence.  A third reason given for being concerned about drug use is the legal aspect. Marijuana, cocaine, methamphetamine are all illegal. A company might assert that employees engaging in illegal activity are a priori exercising bad judgment and should be excluded from employment, or at least from positions of responsibility. Finally there is the moral argument, which in my observation isn't usually said out loud: the moral argument, i.e. drugs are bad.

Let’s look at these arguments, first, the moral. While privately held companies have the right to set their own standards, and the ethical and moral positions of the owners certainly have an impact on a company’s ethics and values, where does that end? There is without question a broad range of opinions on the ethics of drug use, especially regarding marijuana, so it surely cannot be argued that marijuana use is obviously a bad thing. A stronger argument could easily be made for morphine-derived drugs, or “meth”, but a 2012 study indicates that it is marijuana users who are most impacted by drug testing. [1] (More on that later) So with the often unspoken moral revulsion at drug use, we have allowed the values of some to dictate how the rest of us must behave.

            What about the fact that drug possession and use is illegal? This particular argument is usually used when drug testing for management personnel or employees in other positions of responsibility (cash handling, security) is involved. How can we trust someone who is engaged in an illegal activity? First, marijuana use isn't illegal everywhere. (From this point on I will be focusing primarily on pot) Second, if any illegal activity precludes one from a responsible position, why wouldn't tax avoidance and speeding be included? I know very few people who always drive at or under the speed limit. Many people practice the 5 mph grace period – believing erroneously that it is legal to drive up to 5 mph over the speed limit. This is not true; what is true is that most highway police don’t bother with speeding a few mph over the limit, but it is still illegal. I believe that it is the rare person who has never indulged in illegal activity of any kind. “But this is drugs! It’s different!” – That brings us back to the moral argument.

We can look at productivity and safety together, since the arguments for and against are somewhat similar. It is claimed that drug use on the job renders an employee less safe and less productive. With that I have absolutely no argument. Marijuana is by no means a performance enhancing drug…dude. Getting high before coming to work, or at lunch, or in the bathroom is going to slow you down and fog your mind to the point where you will be less safe. However, what is being tested is how much of the drug is still in your urine, or hair or whatever is being tested. Not whether that residual amount is affecting you in any way. An employee can smoke a joint or two at a party and test positive a week later. Someone can get high after work or on weekend and test positive 30-45 days after the last time they smoked. One can smoke themselves into oblivion on a Saturday night and still be sharp and ready to work on Monday morning.

And then, there’s alcohol. You can go out and get drunk every night, be hung over every morning and you’ll test out fine on any drug test. You can test well over the legal limit for alcohol and as long as you’re not actually drinking at work your job is safe. In fact, to fold in the previous arguments for drug testing, if you are above the limit in public or are driving, then you are engaged in illegal activity, if you are coming in hung over, then your productivity is significantly lower and you are likely not as aware of safety concerns as if you were not hung over.

And then there is the question of constitutionality. Is it really legal to turn over your bodily fluids without a court order if there is no suspicion of illegal activity? Aren’t we protected against unreasonable searches and seizures? (4^th Amendment). And how can we be compelled to in essence testify against ourselves? (5^th Amendment) I’m sure in many cases employees sign some paper authorizing the company to do this, but wouldn’t that be coercion? I can understand if there were some suspicion that an employee were under the influence, or to do a test after an accident. But to take and test people’s urine without due process and without real consent, is in my opinion not only unconstitutional, but illegal.

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[1] http://www.freedomisgreen.com/drug-testing-targets-marijuana-users/