Many employers conduct drug screenings. The most common practice is to test candidates just before they’re formally hired. Many also test current employees when there is reason to believe the person has been using drugs after a work accident, or in the presence of obvious behavioral symptoms such as chronic lateness or high absenteeism. Some firms routinely administer drug tests on a random or periodic basis, while others require drug tests when they promote employees to new positions.
No drug test is foolproof. Some urine sample tests can’t distinguish between legal and illegal substances for example, Advil and Nuprin can produce positive results for marijuana. One medical review officer with health care provider Industrial Health Care says anyone can go online and purchase drug free samples to try to beat the tests. In fact, there is a swarm of products that promise to help employees (both male and female) beat drug tests.
Other employees find such tests too personal, and use hair follicle testing. The method, radio-immunoassay of hair (RIAH), requires a small of hair, which the lab analyzes to detect prior of illicit drugs. Hair follicle testing is less intrusive than urine analysis but can actually produce more personal information. A three hair segment will record six months of drug use. And even here, classified ads advertise chemicals that can be added to specimens or rubbed on the scalp to fool the test.
Ethical Issues: Drug testing also raises ethical issues. Unlike the road side breathalyzer tests given to inebriated drivers, urine and blood tests for drugs indicate only whether drug residues are present; they can’t measure impairment or, for that matter habituation or addition. Without string evidence linking blood or urine drug levels to impairment, some argue that testing is not justifiable on the grounds of boosting workplace safety. Many feel the testing procedures themselves are degrading and intrusive. Others argue that use of drugs during leisure hours might have little or no relevance to the job itself. Many employers reasonably counter that they don’t want drug prone employees on their premises.
Legal Issues: Drug testing raises legal issues, too. As one attorney writes, it is not uncommon for employees to claim that drug tests violate their rights to privacy under common law or, in some States a State statutory or constitutional provision.
Several federal laws affect workplace drug testing. As one example, under the Americans with Disabilities Act, a court would probably consider a former drug user (who no longer uses illegal drugs and has successfully completed or is participating in a rehabilitation program) a qualified applicant with a disability. Under the Drug Free Workplace Act of 1988, federal contractors must maintain a workplace free from illegal drugs. Under the US Department of Transportation workplace regulations, firms with over 50 eligible employees in transportation industries must conduct alcohol testing on workers with sensitive or safety related jobs. These include mass transit workers, air traffic controllers, train crews and school bus drivers. Other laws, including the Federal Rehabilitations act of 1973 and various state laws, protect rehabilitating drug users or those who have a physical or mental addiction.
What to do; what should an employer do when a job candidate tests positive? Most companies will not hire such candidates and a few will immediately fire current employees who test positive. Current employees have more legal recourse. Employers must tell them the reasons for dismissal if the reason is a positive drug test.
However, particularly where sensitive jobs are concerned, courts tend to side with employers. In one case, the US Court of Appeals for the First Circuit ruled that Exxon acted properly in firing a truck driver who failed a drug test. Exxon’s drug free workplace program included random testing of employees in safety sensitive jobs. The employee drives a tractor trailer carrying 12,000 gallons of flammable motor fuel and tested positive for cocaine. The union representing the employee challenged the firing and arbitrator reduced the penalty to a two month suspension. The appeals court reversed the arbitrator’s decision. It ruled that the employer acted properly in firing the truck driver given the circumstances.