Is drug testing a violation of your rights

Great Debates
21

Originally posted by Mr2001:

But don’t we agree that a person who drinks is more likely to be drunk at work than a person who doesn’t? Alcoholism is a dependancy, an addiction. If you are found to have highly addictive substances in your bloodstream or hair or other bodily fluids, does not the chance of that addiction carrying over into the workplace increase greatly? If insurance companies can play that game with smokers, I don’t think it’s fair to yell foul when other business do it.

Just to set the record straight, are you saying that employers should not be concerned with recreational drug use? Is something that is illegal suddenly okay as long as it’s done a little less frequently? If Jack and Jill both apply for a job as a school bus driver and Jack’s test comes back clean but Jill’s test reveals low levels of something that suggests she smoked a joint two weeks ago, do you suggest that both candidates are equally at risk of being stoned one day next year while driving kids to school?

Originally posted by jeyen:

Same here, but I did the opposite. I leaned towards the companies that required me to pee in a bottle. I appreciate knowing that all of my coworkers have gone through (and may be called upon again to go through) drug screening. If Spacely Sprockets requires drug screening, and Cogswell Cogs does not, I believe that Spacely is going to have lower costing health plans, pay less of their profits into employee health benifit plans, and generally be a nicer place to work. Can you blame Cogswell for wanting to clean up a little after seeing so much employee turnover, sick time & insurance plan costs go through the roof?

I would simply rather not work in an environment where the person in the next cube might have a meth lab at home, which he financed with the help of overtime pay from the company he works for. Or maybe he’s a heroin addict, just waiting for payday Thursday to arrive so he can finally afford to run home & shoot up that evening.

This is a red herring. My employer allows me to take the day off when I am ill, or if medication I am taking for an illness causes me to be unfit for duty. The employer grants you paid leave because they don’t want you coming to work stoned on meds.

Why don’t we look at this in slightly different light:

Light #1: Companies would rather hire law-abiding citizens. Specifically, citizens who are law-abiding 24 hours a day, not just during the 8 hours while they are on company property. I admire this particular set of values & would prefer to work for such a company.

Light #2: Companies do not want to condone drug use by financing the habits of their associates, and by extension financing the source.

Light #3: Except for alcohol, the drugs we are all talking about are controlled substances. They all need to be dispenced by a licensed authority. You are not such an authority, therefore you are self-medicating. Because you are self-medicating, you may not get the dosage exactly right. You may shoot 5 cc. of heroin instead of 1 cc., and if you do that (and not even on company time or property!), you’ll be calling in sick tomorrow if you still have the ability to pick up the phone. If you get it really wrong, the paramedics or your next of kin might be calling your boss for you. In this light, we see that employers are simply trying to play the odds and select the candidate who is least likely to consistantly be too sick or dead to come to work.

Originally posted by SexyWriter:

As I outlined above in Light #3, drugs can have a serious impact on job performance if you come into work with a hangover or keep calling in sick because you took too much of whatever got you stoned the night before.

Yes that’s great, and a fine job you’re doing here at Spacely Sprockets. However, three of your coworkers have tested positive for cocaine use after an accident involving a company truck. This was a huge expense for us and as a result we have begun instituting random drug screening. Even though you are doing a dynamite job, it would be unfair for us not to apply the rules of the drug-free workplace policy uniformly.

22

Yet, oddly enough, I’ve never seen a surgeon (or any doctor, for that matter) take a pee test. Why? Because the medical profession understands the reality of drug use, and that occasional use of illicit substances has no bearing on job performance.

I’ll make an analogy–let’s say your company randomly goes out to the parking lot and hooks up a device to your car’s computer, which tells them if you’ve broken the speed limit within the past month. If you have, you will be fired.

That’s silly, you say–the fact that I went five MPH over the limit out on the interstate this weekend has no bearing on my ability to do the job. But is something that is illegal suddenly okay as long as it’s done a little less frequently? Can we trust someone who would be careless enough to drive too fast? Isn’t someone who tests positive for speeding more likely to die in a fiery crash on his way to work in the morning, thus increasing the burden on his co-workers, raising health premiums, and reducing productivity for the company?

Note: I recognize the right of the company to conduct drug testing or even my analogous “speed testing”. However, I have the right not to work there. I have never had a job that required a pee test, and I suspect I never will, even though I average using marijuana less than once a year.

A few questions, for anyone that knows:
1.) What percentage of “illegal drug users”–that is, all who would test positive on a pee test–are casual marijuana users? I’d call “casual” less than once a week.
2.) For the epidemiologically inclined, what sort of sensitivity and specificity do you have with the usual employee drug tests?
3.) Hi, Opal!
4.) Are any companies testing for alcohol use? A pee test tells you nothing about booze–you would have to take blood, and then it would only be good within a few hours. Or, Hank forbid, you could actually do performance/impairment testing.

Dr. J

23

originally posted by DoctorJ:

Bad analogy. What is the universal speed limit? 55MPH? I legally drove 65 MPH in West Virginia last week, would I get fired for that? And if it was standard practice (or at least as standard as drug screening is) to do this, you can be sure that cars would have speed governors and that there would be sufficient countermeasures to prevent people from breaking the speed barrier. Enter the SEA (The Speed Enforcement Agency).

Let’s tweak that analogy a bit:

What should have been originally posted by DoctorJ:

Now let’s hear from people who drive a vehicle for a living. Do your employers care about your driving record off the clock? Do you think they have a right to care about it? Should a pizza delivery business hire you if you have a string of speeding convictions & a DWI, even though none of this happened on company time or property?

24

Drivers, couriers, many police departments, and a lot of other jobs requiring a lot of driving require a DMV printout with the job application, and their DMV record is subject to review at any time. Some have to show an annual printout. Got a ticket or two? Kiss your job goodbye. Get a DUI? History.

In my job, if someone reports that I had a beer or drank a lot the night before work, I can be given a BAC test either by breathalyzer or by blood and be terminated if my BAC is .01 which I’ve already stated.

Limits? In my company, it’s zero tolerance. THC or coke in your system? You are toast, it doesn’t matter how little is there.

Again, if it is a condition of employment, it is not a violation of your rights.

25

Okay, that’s a great theory. And it makes these companies in question sound so very responsible. But for the most part, they take minimal steps to ensure that their employees are “law abiding” citizens. No one does any test to ensure that Mr. Smith isn’t a long-time wife beater, about to get arrested for assault and battery. No one asks him if he’s got an arsenal of un-registered assault weapons in the closet at home. And a none of the companies I’ve worked for who performed drug testing bothered to run criminal background checks. So the guy could already have warrants for his arrest and no one would care. He could have three DUIs on his record.

Why is it unacceptable to go into Mr. Smith’s home and make sure his wife isn’t bruised and check his closet for arms? Because it amounts to an unwarranted search and seizure. His privacy is considered more important than the potential risk he could pose. EXCEPT when it comes to peeing in a cup. That has come to be understood as socially acceptable.

In the general scheme of things, I don’t think breaking the law by smoking a joint every now and then, poses the same danger as good old Mr. Smith and his violent ways. I don’t think the test tells them anything about the person, I think it’s costly, easy to cheat on, unnecessary and unnecessarily invasive.

-L

26

Turbo Dog:

But blood alcohol levels are related to impairment… THC metabolite levels are not. Although a drug test won’t even tell you whether an employee is currently stoned, it’s safe to say that a person with an 0.20 BAC is drunk.

So an employer who fires all his Catholic employees isn’t violating any rights?

Oh wait, that’s illegal. Do you suppose it’s illegal because lawmakers randomly decided to make it so, or because they recognize that some things are just not the employer’s business?

Yawn… impairment testing tells you exactly when they are doing it.

Attrayant:

Certainly… and someone with kids is more likely to skip work to be with them, someone who owns a car is more likely to have it break down and not be able to come to work, etc. Just because it’s possible doesn’t mean it will happen, and it especially doesn’t mean that it’s okay to fire employees who meet those criteria.

Yes, any more than with recreational alcohol use.

Employers aren’t policemen. It’s not their business to fire someone for getting a parking ticket, participating in illegal sexual activities (where applicable), throwing loud parties that disturb the neighbors, or putting unapproved substances into their bodies.

It was a great analogy - drugs aren’t as clear-cut either. Maybe Bob failed his drug test because he went to Amsterdam on his vacation and smoked pot, or used peyote on an Indian reservation. Or maybe he’s in (or traveled to) a state where possession of small amounts of marijuana is legally no worse than double parking.

Also, changing “whether you’ve broken the speed limit” to “whether you’ve been convicted of any moving violations” is equivalent to changing drug tests to criminal background checks. You may want to rethink that.

I’m employed as a driver. I got a speeding ticket on the way home from the application, and I haven’t heard one word about it. :wink:

The difference is that this is related to the job. If you have several speeding convictions and DWIs, you are a poor driver and shouldn’t be hired. Similarly, if every house you’ve designed has been ugly and unstable, you are a poor architect and shouldn’t be hired.

However, you can smoke a joint on the weekends and still be a good architect, driver, surgeon, or anything else.

27

Drug testing is nothing but the co-opting of private enterprise into the drug war. The arguments for drug testing are utter garbage.

Studies show that implementation of drug testing has no appreciable impact on employee accidents, employee theft or on sick days. On the other hand companies that treat their employee’s “rights” cavalierly get lower levels of loyalty and productivity. Its a stupid policy but at least it bites the ass of those ignorant enough to think paying a salary grants ownership over an entire life.

Obviously no such right is recognized in law though one has to wonder about the hoops companies would have been put through in the absense of drug war hysteria. Legalities aside, it is clearly an unwaranted intrusion into employee privacy.

28

I don’t believe drug testing(workplace) violates your rights because you’re not executed, incarcerated(unless it was a post-accident test)and you’re not forced to give a sample. I mean, if you know you’re positive and you’re randomly picked you can fake a heart attack or whatever. You have very ignorant as well as very intelligent people that injest natural and synthetic drugs for a desired effect, and if you are ignorant enough to fail drug tests when you know you are positive and contribute your number to the statistics that the government and ultimately business use to continue justification of workplace drug tests and the ongoing war on PEOPLE that use drugs then you deserve the consequences.
number of people killed by marijuana: 0
number of people killed by Ted Kennedy:1

29

This is just silly. I’m very much pro-legalization, but you can’t say pot’s never killed anyone. The substance itself isn’t toxic, but, like all mind-altering drugs, it affects judgment, reflexes, etc. I have no idea of the stats, but I’d be shocked if marijuana wasn’t implicated in hundreds, if not thousands, of fatal car accidents.

On to my main topic:
This is Con Law 101. Companies, as private entities, can do what they want. The only real limitations are when Congress, acting under the Commerce Clause, forbids certain acts, such as discrimination, and various mundane common or statutory law prohibitions.

IOW, when it comes to your employer, you have no “rights” that are protected from interference, unless they are expressly granted by Congress or your local legislature. Employers do not need to justify their procedures and practices as being efficient or necessary for the job. So, even if drug testing doesn’t work, it’s irrelevant. If the employer wants to do it, the employer can do it.

Sua

30

Yes. Yes yes yes. Sua’s got it.

The fourth amendment does not apply to private citizens. Freedom of speech only protects you from the government, not from civil suits (ie- private citizens).

If I want to, as an employer, wade in your urine as a guide for your respectability, I am allowed until the courst say otherwise.

And they have, of course. Because the issue, IMO, is similar to asking about previous convictions of felonies, misdemeanors, etc. Not all employers, IIRC, may ask this info, but some clearly may.

I had to take a 50 question “lying” quiz when I applied at a gas station about four years ago. I got a yellow (they had scores like traffic lights…it doesn’t take a genius to work there, just don’t lie about it). To this day I wonder what the hell I lied about, or was inconsistent with.

I digress.

They are not wading through your urine without your permission, so there is no invasion of privacy there either.

31

That’s exactly right.

Companies often have a need to minimize risks – especially where public safety is involved. One could argue that a heroin user won’t necessarily show up for work impaired, or that he won’t necessarily show degraded performance, or that he won’t necessarily pose a danger to his colleagues. Oftentimes though, a company can not take that risk.

I, for one, would never trust a crane operator who had been snorting cocaine four days ago. Even if he swears on a stack of Bibles that he’s hasn’t had a snort since then, I would not entrust the safety of my men to him.

32

This one hurts. Pre-employment drug testing violates the rights of the prospective employees against unreasonable search and against self-incrimination.

However, corporations are (theoretically at least) private entities, and the operators of those entities have the right to operate them in the manner they see fit.

Unfortunately, neither of these rights is more pressing than the other. While I find drug testing repugnant (and they’d find nothing more interesting than caffeine and nicotine in my system) I can’t say it should be prohibited at the expense of the business owners’ rights.

My stance is that I won’t go to work for a company that requires testing. I had to stare long and hard at that stance when I was offered a job last year that more than doubled my already not too shabby salary, but in the end I turned them down.

Thanks for bringing up this thread and reminding me. Now I’m really depressed. The bad thing about having ethics is that sticking to them in the face of strong temptation can be a real kick in the ass.

33

SuaSponte: Just a little comment on your reply

The marijuana/Ted Kennedy comparison is more or less an attempt at a little humor that I signed my post with, you claim you are very much legalization, yet you express a couple of conflicting opinions, first of all, you said this was Con Law 101, now I’m no linguist, but Con conjures up the images of convicts in prison for committing crimes, so you label recreational drug users as criminals off the bat but you’re pro legalization. You say “I can’t say marijuana has never killed anyone” that’s denial of the facts. Careless and wreckless people kill people. If you read my post that preceeded the Ted Kennedy comparison you’ll see I agreed that it (workplace) drug testing does NOT violate your rights. Mean what you say, say what you mean

34

But you would entrust it to the guy you had a beer with last night. You have obviously never done cocaine, you have no idea how it effects people, and without doing scrap of research you are prepared to screw someone who shows no signs of impairment. Why don’t you just check his horoscope in the morning to see if he is safe that day?

A word about rights.

We get much too tied up in the idea that rights are purely a matter between the government and the individual. Contracts are not wide open playing fields and employees do and should have rights recognized by statute and common law. Contracts which impose conditions that provide no discernable benefit to the party insisting on them can sometimes be difficult to enforce and they should be. Contract law requires an enforceable bargain but if their is no benefit to me if you don’t do drugs off work where is the bargain? <yes, I understand it gets more complicated but think about it>

It is ridiculous to suggest that rights cannot co-exist with a basic freedom of contract. Consider a landlord tenant situation, statutes in most areas will protect a tenants right to privacy which places a clear limitation on the freedom to contract by establishing a general rule that
seeks to protect both parties interests.

For those of you in favor of employer drug testing where would you draw the line? How would you feel if employers started demanding the right to inspect your home on demand? Would it make a difference if it could be clearly demonstrated that the policy provides no benefit to the employer?

35

I’ve known people that do cocaine. And I still support it.

A word about rights. We are not talking about the government and an individual per se. We are discussing the private company’s right to test their prospctive employees for illegal substance abuse.

This statement makes no sense to me. You are free to pursue other employment.

It isn’t like companies are surreptitiously sneaking into the toilet after you to test for drugs. They tell you when you sign up. Don’t do drugs for that bit before the drug test. :shrug: What’s the big deal?

I’m going to politely disregard the last questions and address this one.

I don’t draw the line. It is not my company. If I had a company I wouldn’t do preliminary drug testing, nor would I do drug testing during regular employment. I’ve worked in several positions which have a similar practice; ie-no drug testing.

I don’t find it to be immoral or wrong, by any stretch of the imagination, for a company to desire to have employees who do not break the law.

36

There’s a world of difference between the two cases. Cocaine is FAR more addictive that alcohol, and its effects are far more severe. If a person claims to only drink alcohol occasionally, I would generally believe him. If that person claims to consume cocaine in strict moderation, I would be far less likely to believe him.

Also, I am not about to wait until the person shows signs of impairment – not when the safety of my employees is at risk. If the employees have been warned that illegal drugs will not be tolerated, then they should know what to expect.

37

The world of difference between the two cases exists soley in your mind. I would love to hear your perception of the effects of cocaine, I am sure you would have me rolling. Cocaine produces a mild feeling of well being, slightly increased pulse, increased motor control and heightened alertness. This doesn’t sound more severe than alchohol to me.

As for believing him, is your method anymore sound than deciding that people born in the summertime tend to be more honest?

I don’t think there is much support for it being more addictive either. I am sure they are out there but I have never met anyone who had a problem with coke who didn’t have a pre-existing alcohol problem. You wouldn’t have put one of these individuals in a crane even if you didn’t know they used, they are walking advertisments for disfunction.

Having said all that at least you have the safety angle to hang on to.

Actually the debate concerns prospective and current employees. The situations can be quite different from a legal perspective.

I could have guessed that freedom of contract in all its mythical glory would be an important part of aynrandlovers world view. I won’t get into the debate over whether such freedom is real in any sense as that was not my point.

My point was that freedom of contract is always subject to restrictions imposed by law. I cannot impose on an employee an unreasonable restraint of trade and the court will relieve against unconscionable terms. I cannot in Maryland or if I am in a company involved in interstate commerce (with certain exceptions) require a current or perspective employee to take a lie detector test. While I may decline to hire an employee with a criminal record a subsequent criminal conviction will not automatically justify termination. If I run a catholic school for girls the morality clause I insist on will undoubtedly fly, if I run a chicken packing plant I won’t be so lucky.

I have lesser problems with precontractual drug screening. If the person can’t manage a clean drug test when they know its coming then they likely have a serious problem in addition to lacking the initiative to figure out how to beat it. I would still be offended by the request and if they took it too seriously I would be inclined to refuse.

I see nothing morally wrong with wanting law abiding employees either. I probably would also want them to be cheerful, personable and polite. Thats what the interview process is for. No matter what the reasons you hire them for however the contract is for an exchange of money for labor. If the person turns out to be sullen over the long term your stuck with him unless it affects his job performance or you live in california. Your contract does not give you ownership of his person and off work conduct which does not effect job performance is simply not an appropriate term to put into a contract. As I said before, it is contrary to fundamental principles of contract law to enforce terms that do not provide consideration.

As for drawing lines I wasn’t asking the question to consider as an employer but my guess would be that you would leave it to the invisible hand.

38

JubilationTCornpone:

I would never trust a crane operator who engaged in oral sex with his wife. Will you support me in requiring a no-oral-sex affidavit from prospective employees and their spouses, subject to verification? (Video surveillance over a one-week period would probably suffice.)

I also would never trust a crane operator who goes to church on Sundays. Will you support me in changing the law so that I can refuse to hire churchgoers?

39

The only people I think who should be drug-tested on a regular basis is Firefighters, police officers, and anyone in the medical profession.

I wouldn’t want any of those people all whacked out on drugs trying to save my life.

40

I don’t think that’s analogous. Church and oral sex are not intoxicants, though they can make you feel good. There really aren’t any hangovers to speak of, and directly following, your judgement won’t be any more impaired than it was directly preceding.

The company I work for has staff 24/7/365 with customers all over the world. Often, employees are called in the middle of the night or on their days off to solve customers problems. The difference between solving the problem in 2 hours and solving it in 2 1/2 hours can be $50,000. It is in our companies financial interest to know whether it’s employees are likely to be intoxicated on their time off.

Also, an employee arrested for drug possesion or intoxication on his/her time off could directly and adversely affect the future business of the company.