Drug Testing in Employment

November 6, 2006

The 2006 National Drug Threat Assessment reported that drug trafficking and drug abuse still pose a significant threat to citizens of the United States. Because of this, employers must choose whether or not to have a drug testing program in their work places. Employers may feel "that drug use adversely affects job performance and it can harm the employer, other employees, and the public." They may think that drug testing in the work place is vital to create a safe working environment and a successful business. However, employees and job applicants may feel that it is an invasion of privacy to have a drug testing program in the work place. DesJardins and Duska examine the arguments for and against drug testing programs in their article titled "Drug Testing in Employment."

DesJardins and Duska state that an employee’s right to privacy is violated when an employer requests or collects irrelevant personal information about the employee.  They examine whether knowledge of drug use is relevant to the job. 

They state that two arguments are used to justify that knowledge of employee drug use is job-relevant information. The first argument claims that drug use decreases job performance, which leads to lower productivity and higher cost, so, ultimately, drug use decreases profits. When hired, an employee is contracted to perform tasks at an expected level. Therefore, applicant and employee drug use information directly relates to their ability to do the job. The second argument claims that knowledge of drug use can prevent harm that might be done to other employees and consumers by an employee who uses drugs. Those persons might hold the employer liable for harm done to them, if the employer should have known about drug use but did not obtain this information. Therefore, applicant and employee drug use information directly relates to the reputation and costs of an employer and to the responsibility of an employer to its employees and customers.

The authors disagree with the first argument. Drug use can affect performance, but the important questions are "to what level of performance are employers entitled? Optimal performance, or some lower level? If some lower level, what?" They agree that an employer has the right to discipline, fire, or find fault with an employee when a specified minimum level of performance is not achieved. However, they say that the employer is not entitled to "a maximum level or a level above and beyond certain level of acceptability." So, drug use information is irrelevant to the job, because drug use rarely prevents a person from meeting a satisfactory level of performance (except for obvious heavy drug use). They say that if an employee fails to meet the minimum level of performance, an employer can discipline or fire him or her only on the grounds of unsatisfactory performance, not on anything about drug use. DesJardins and Duska reason that an employee does not fulfill the contract only when failing to perform at an adequate level, and knowledge of drug use or any other cause of such a failure is irrelevant on the contractual model.

DesJardins and Duska do not totally agree with the second argument. According to them, it is sufficient and justifiable for an employer to obtain knowledge of employees' drug use only to prevent a potential threat to the health and safety of the employees and customers. Such drug testing must be conducted following a strict guideline and only in limited circumstances. First, "not every job poses a threat serious enough to justify an employer coming to know this information." For example, if an auditor or a secretary fails to perform while under the influence of drugs, it does not pose a significant threat to the health and safety of themselves and others, compared to the performances of airline pilots or surgeons. Only jobs in which failure to perform at a satisfactory level poses a clear and present danger to others should have strict drug testing procedures.

Even when such drug testing is warranted, certain limitations should be placed on drug testing policies. A system of checks and balances should be in place to make sure an employer does not abuse the power of deciding which jobs or persons might pose a clear and present danger. DesJardins and Duska reason this is to protect innocent employees from financial and personal loss. According to them, an employer should work with employees to come up with a fair drug testing policy. An employer should let the employees know the test results and let them appeal the results. Prior notice of testing and programs to prevent drug use are also favored by the authors. 

A third point about drug testing is that drug use is illegal in the United States. The authors contend that illegal activity is irrelevant to job performance. They reason that the government would not allow an employer to hire an auditor to audit each employee's tax return to check for illegal activity, because it is intrusive and violates employee privacy. So drug testing should not be allowed for this purpose either. 

The last point about drug testing is whether it is voluntary or not. The authors believe that employee consent is necessary. They believe that a drug testing policy that forces everyone to take a drug test is unacceptable. An employer should not be able to make employees face the threat of losing their job if they do not consent to a drug test.

Does an employer violate an employee's privacy when obtaining personal information that is irrelevant to the job? I think it does. However, the authors did not build a strong argument in the example of giving income information to a mortgage company or a neighbor. The relationship is not the same. A person does not have a contract or obligation to perform certain tasks with a neighbor or mortgage company, but does with an employer. A neighbor or mortgage company also has little power over a person compared to an employer. 

The authors also did not convince me to agree with them on the first argument, that employee drug use information is irrelevant to the job as long as an employee performs at an acceptable level though not at an optimal or higher level. I also do not agree that the cause of failure in job performance is irrelevant on the contractual model. A minimum level of performance is not the issue. The important thing is if a mistake is made. The United States Supreme Court has ruled many times that drug testing is constitutional when trying to determine the cause of an accident. Also, DesJardins and Duska did not show specifically what the criteria are for an acceptable level. Everyone brings a bit of home and private life to their work, and no one can prove that what they do in their own privacy completely does not affect their work performance.
I did not agree totally on their points against the second argument. I agree that drug testing is needed for jobs that pose a clear and present danger and that limitations should be placed on employers to prevent them from abusing their power. However, I believe that drug testing should be conducted at any work place regardless of the occupation, so that all employees are treated equally with a fair, voluntary, and balanced system. 

Also, many employers do not have the necessary resources to do a proper program of drug testing. 

I also disagree that a drug testing policy allowing voluntary consent can work. If one does not use drugs, one would not have any problems taking drug tests. However, no drug user will freely consent to a drug test. Furthermore, implementing prior testing notice in a company drug testing policy creates a loophole for drug users and does not really give them "an option of refraining from drug use" as the authors suggested.

Drug abuse will continue to be a major threat to the health and safety of American citizens. It is not only the responsibility of the government, but also the responsibility of everyone, and especially corporate America, to do their part in helping reducing that threat. Just like the authors, I believe employers can work with employees to come up with a fair and enforceable drug testing policy that is beneficial to everyone. A policy that cannot be enforced does not do anyone any good and creates loopholes for drug users to abuse it. Despite its unpopularity, I believe drug testing is vital to our citizens' health and safety, as well as business success.