QUESTIONS AND ANSWERS: DRUG TESTING IN THE
If you don't use drugs, you have nothing to hide -- so why object to testing?
Drug testing allows employers to intrude upon the private lives of their employees. 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." Both the actual taking of urine samples and the analysis of the sample, which
may disclose private information, violate this right to be left alone.
As stated by the Court of Appeals for the Fifth Circuit, "there are few activities in our
society more personal or private than the passing of urine." 4 The drug testing process
subjects individuals to an offensive and degrading process. Some employers even
require the employee to strip and urinate into a cup in the presence of an observer in
order to prevent cheating.
In addition, analysis of a person's urine can disclose many details about that person's
private life other than drug use, including personal medical information. 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.
Drug testing may "provide employers with a periscope through which they can peer
into an individual's behavior in her private life, even in her own home. . . ."5 For all of
these reasons, the Supreme Court has found that urine testing, like blood testing,
constitutes a search under the Fourth Amendment.6
Don't employers have the right to run a safe and productive workplace?
Of course they do. If employees cannot do the work, employers have a legitimate
reason for disciplining or dismissing them. But drug 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
Urine tests cannot determine when a drug was used. They can only detect the
"metabolites," or inactive, leftover traces of previously ingested substances. Drug
testing can detect marijuana that was consumed even weeks before the test date. For
example, an employee who smokes marijuana on a Saturday night may test positive the
following Monday, 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
Monday. 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.
Are drug tests reliable?
No, the drug screens used by most companies are not always reliable. Commonly used
drug tests yield false positive results at least 10 percent, and possibly as much as 30
percent, of the time.7
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.
Other substances known to cause false positives include Nuprin, Contac, Sudafed,
certain herbal teas and poppy seeds.8
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.
In October, 1990, the National Institute on Drug Abuse launched an investigation into
the widely used federal drug testing procedure after learning that a government-
certified laboratory incorrectly reported workers had tested positive for illegal
methamphetamine when in fact they had been using over-the-counter cold or asthma
Still, isn't universal testing the best way to catch drug users?
Perhaps, but it is also the most un-American way. 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.
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. Before a personal
search can take place, the government must have good reason to suspect the person is
concealing something illegal. The same rights to privacy and bodily integrity ought to
be extended to private sector employees as well.
Furthermore, there is no scientific evidence whatsoever that drug testing programs
deter, prevent, or treat drug abuse. Drug use is a complex problem, and drug testing
has been introduced as an unproven and probably unrealistic quick fix.10 According to
the American Society for Clinical Pharmacology, "adequate scientific studies of the
relationship among safety, productivity, drugs of abuse and testing of urine aren't
available or haven't been done."11
Drug use costs industry millions of dollars 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 of 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.12 And some who make such
claims are manufacturers of drug tests, who obviously stand to profit from
industry-wide urinalysis. A 1990 study by the U.S. Department of Labor was unable to
determine conclusively that workplace drug abuse is having a detrimental impact on
many aspects of employment.13
Furthermore, reports that drug testing programs have led to reductions in workplace
accident rates leading to savings to industry are sometimes misleading. For example, a
consultant hired by the Georgia Power Company reported, to some fanfare, that there
had been a decrease in the accident rate because of extensive drug testing. Georgia
Power's accident rates at its nuclear plant per 200,000 manhours each year did decline