Drug Testing

By Joshua Gaines joshg12@cox.net

"[Businessmen are] an order of men whose interest is never exactly the same with that of the public, who have generally an interest to deceive and even to oppress the public, and who accordingly have, upon many occasions, both deceived and oppressed it."

The words of anti-capitalists Karl Marx and Friedrich Engels? No, they are, in fact, the words of the father of capitalism, Adam Smith, in his magnum opus, The Wealth of Nations. The authors of the Constitution realized that humans are born with certain inalienable rights and therefore protected these rights from government intrusion. However, the Founders could not have foreseen that the forces most likely to infringe upon our inborn freedoms would, in fact, originate with corporate interests.

One of the more insidious examples of this gradual encroachment upon civil rights is found in the employer practice of drug-testing. The oft-stated motivation given by employers who utilize these tests is to ensure workplace safety. The reasoning behind this statement is completely and utterly flawed. Not only are these tests so unreliable as to prove all but useless, they represent an invasion of privacy on a scale heretofore unprecedented in America.

Do employers have a responsibility to ensure that employees are fully capable of performing their duties without risk of harm to other employees or clients? Of course, however, the use of drug testing to accomplish this end is nonsensical. An individual suffering from sleep deprivation would be just as dangerous as an individual who arrives at work drunk. According to the Spring 2000 issue of Stanford Medicine, sober patients who suffered from mild to moderate sleep apnea, a condition that prevents sufferers from falling into a deep sleep and results in day-time drowsiness, scored lower on a test of reaction time than patients with a blood alcohol content of 0.0507%. Clearly, simple tests of hand-eye coordination can identify individuals unfit for work, whether due to fatigue, illness, or drug use. NASA has long-used such tests to determine the fitness of pilots and astronauts.

Drug testing is not only useless in determining other reasons an employee may be incapable of performing his or her duties, but also fail to distinguish perfectly innocuous substances from illegal ones. Food products containing poppy seeds will show up as a positive for heroin use. Ibuprofen has been known to produce a marijuana positive and Nyquil will show evidence of amphetamine use.

According to the Psychemedics Corporation, a drug testing contractor, the cost to test a urine sample for the presence of illicit substances is around $30.00. Drug testing is expensive and clearly isn't very useful in measuring employee fitness or even determining the presence of drugs. So why did the American Management Association find a 277% increase in the number of US firms that employed drug testing since 1987? The frequency of false positives has led employers to require those being tested to declare any prescription medications they may be taking to account for inconsistencies. An obvious problem resulting from this practice is that it gives the employer access to privileged information that should only be available to the individual and his or her doctor. It is not at all difficult for an employer to infer from this information any sort of medical treatment a person may be undergoing. By requiring a new applicant to be tested, an employer can determine if this individual has any sort of medical problems which could become a liability and raise the costs of their health insurance. Of course, using this knowledge in such a way violates the 1990 Americans with Disabilities Act which states that employers cannot make conditional job offers based on the results of a medical examination. However, there is no way to enforce this law. In 1988, the Washington, D.C. Police Department acknowledged that it used urine samples collected for drug testing to screen its female employees for pregnancy - without their knowledge or consent.

The question "quis custodie custodies?" comes readily to mind. Obviously, employers cannot be trusted to respect the privacy of their employees.

Many will argue that drug testing is nothing to be concerned about as long as you have nothing to hide. This argument is flawed in that even a law-abiding citizen has information that one would prefer remain confidential. Would you want your employer knowing that you are pregnant before you do? Would you want your employer to find a reason to fire you because you are taking medication to treat an expensive illness? Drug testing is clearly an attempt by employers to increase their control over employees. Therefore, employees should no longer consider drug testing a minor nuisance, but a serious invasion of privacy. Justice Louis D. Brandeis stated in Olmstead v. United States (1928) that "the right to be let alone [is] the most comprehensive of rights and the most valued by civilized men." That may be so, but the real question is whether the rights of the civilized man can stand up to the employer's dedication to the bottom line.

Joshua Gaines is a senior Political Science undergraduate at the University of Texas Permian Basin. He hopes to attend law school.