|Privacy In America
& Workplace Drug Testing
Today, in some industries, taking a drug test is as routine as filling out
a job application.
In fact, workplace drug testing is up 277 percent from 1987 despite the
fact that random drug testing is unfair, often inaccurate and unproven as
a means of stopping drug use.
But because there are few laws protecting our privacy in the workplace,
millions of American workers are tested yearly even though they aren't
suspected of drug use.
Employers have the right to expect workers not to be high or drunk on the
job. But they shouldn't have the right to require employees to prove their
innocence by taking a drug test.
That's not how America should work.
INVASION AND ERROR
However routine drug tests have become, they're still intrusive. Often,
another person is there to observe the employee to ensure there is no
specimen tampering. Even indirect observation can be degrading; typically,
workers must remove their outer garments and urinate in a bathroom in
which the water supply has been turned off.
The lab procedure is a second invasion of privacy. Urinalysis reveals not
only the presence of illegal drugs, but also the existence of many other
physical and medical conditions, including genetic predisposition to
disease or pregnancy. In 1988, the Washington, D.C. Police Department
admitted it used urine samples collected for drug tests to screen female
employees for pregnancy without their knowledge or consent.
Furthermore, human error in the lab, or the test's failure to distinguish
between legal and illegal substances, can make even a small margin of
error add up to a huge potential for false positive results. In 1992, an
estimated 22 million tests were administered. If five percent yielded
false positive results (a conservative estimate of false positive rates)
that means 1.1 million people who could have been fired, or denied jobs
because of a mistake.
"I waited for the attendant to turn her back before pulling down my pants,
but she told me she had to watch everything I did. I am a 40-year-old
mother of three: nothing I have ever done in my life equals or deserves
the humiliation, degradation and mortification I felt."
From a letter to the ACLU describing a workplace drug test.
TESTS THAT FAIL
Claims of billions of dollars lost in employee productivity are based on
guesswork, not real evidence.
Drug abuse in the workplace affects a relatively small percentage of
workers. A 1994 National Academy of Sciences report found workplace drug
use "ranges from a modest to a moderate extent," and noted that much of
reported drug use "may be single incident, perhaps even at events like
Furthermore, drug tests are not work-related because they do not measure
on-the-job impairment. A positive drug test only reveals that a drug was
ingested at some time in the past. Nor do they distinguish between
occasional and habitual use.
Drug testing is designed to detect and punish conduct that is usually
engaged in off-duty and off the employer's premises that is, in private.
Employers who conduct random drug tests on workers who are not suspected
of using drugs are policing private behavior that has no impact on job
FAR FROM FOOLPROOF
Sometimes drug tests fail to distinguish between legal and illegal
substances. Depronil, a prescription drug used to treat Parkinson's
disease, has shown up as an amphetamine on standard drug tests.
Over-the-counter antiinflammatory drugs like Ibuprofen have shown up
positive on the marijuana test. Even the poppy seeds found in baked goods
can produce a positive result for heroin.
ABOUT SAFETY-SENSITIVE OCCUPATIONS
Alertness and sobriety are, of course, imperative for certain occupations,
such as train engineers, airline pilots, truck drivers and others. Yet
even in these jobs, random drug testing does not guarantee safety.
Firstly, drug-related employee impairment in safety-sensitive jobs is
rare. There has never been a commercial airline accident linked to pilot
drug use. And even after a 1994 Amtrak accident in which several lives
were lost, investigators discovered the train engineer had a well known
history of alcohol, not drug, abuse.
Computer-assisted performance tests, which measure hand-eye coordination
and response time, are a better way of detecting whether employees are up
to the job. NASA, for example, has long used task-performance tests to
determine whether astronauts and pilots are unfit for work whether the
cause is substance abuse, fatigue, or physical illness.
Drug tests don't prevent accidents because they don't address the root
problems that lead to substance abuse. But good management and counseling
can. Employee assistance programs (EAPs) help people facing emotional,
health, financial or substance abuse problems that can affect job
performance. EAP counselors decide what type of help is needed: staff
support, inpatient treatment, AA meetings, and the like. In this context,
the goal is rehabilitation and wellness not punishment.
Employers need to kick the drug test habit.
SOURCES: American Management Association survey, "Workplace Drug Testing
and Drug Abuse Policies"; R. DeCresce, Drug Testing in the Workplace (BNA,
1989); Under the Influence? Drugs and the American Workforce, National
Academy of Sciences, 1994; J.P. Morgan, "The 'Scientific' Justification
for Urine Drug Testing," University of Kansas L.R., 1988.
WHAT WE ARE DOING
Privacy the right to be left alone is one of our most cherished
rights. Yet because so few laws protect our privacy, the ACLU's campaign
for privacy in the workplace is very important particularly in the
The ACLU is working in the states to help enact legislation to protect
workplace privacy rights. We have created a model statute regulating
workplace drug testing. In 1996 the ACLU launched a public education
campaign to help individuals across the nation become aware of the need
for increased workplace privacy rights. Our educational videotape Through
the Keyhole: Privacy in the Workplace An Endangered Right was featured
on national television and at union meetings and other gatherings
Much more work remains to be done. As of mid 1997, only a handful of
states ban testing that is not based on individual suspicion: Montana,
Iowa, Vermont, and Rhode Island. Minnesota, Maine and Connecticut permit
not-for-cause testing, but only of employees in safety-sensitive
positions. These laws also require confirmation testing, lab certification
and test result confidentiality.
Hawaii, Louisiana, Maryland, Nebraska, Oregon and Utah regulate drug
testing in some fashion; Florida and Kansas protect government employee
rights, but not those of private sector workers. Only in California,
Massachusetts and New Jersey have the highest courts ruled out some forms
of drug testing on state constitutional or statutory grounds. The ACLU is
now continuing our efforts to protect workplace privacy rights. You can
WHAT YOU CAN DO
1) Learn more about the issue. Order a copy of our video Through the
Keyhole: Privacy in the Workplace An Endangered Right and share it with
family, friends, and co-workers ($7 plus shipping, call 800-775-ACLU to
order.) Feel free to duplicate the tape at will.
2) Get a copy of our 1996 report, Surveillance Incorporated., which
documents the increase in various forms of employer surveillance and
breaks down privacy laws state by state. This free report is available
through our website or our 800-number.
3) Write your elected officials urging them to support workplace privacy
4) Want to do more? Contact the ACLU's Campaign for Fairness in the
Workplace to find out how you can personally help to get legislation
passed. Write ACLU Campaign for Fairness in the Workplace, 166 Wall
Street, Princeton, NJ 08540, fax (609) 683-1787 or e-mail
Become a member of the ACLU and help support our efforts to protect the
right to privacy. Write us at ACLU Membership Department, 125 Broad
Street, New York, NY 10004