Industry News: History of Workplace Drug Testing in the U.S.
Drug testing in the workplace continues to be a controversial matter in the United States. Even with existing laws and policies in place that protect the employer’s right to conduct random mandatory drug testing, the practice has not gone uncontested. The majority of the objections stem from concerns surrounding the employee’s privacy rights, which are protected by law, specifically the Fourth Amendment. To date, a number of cases continue to arise which question workplace drug-free or zero tolerance policies including workplace drug testing.
Necessity of Workplace Drug Testing Policies
A number of studies have shown that there exists a considerable association between drug abuse and workplace productivity. Drug abuse is a problem that has been existing in the United States for decades and has negatively affected the economic profitability of various industries. With the proliferation of synthetic drugs like K2 Spice (synthetic marijuana), bath salts, flakka and fentanyl and the wide availability of these substances, more employees are drawn to drug use which causes an increase in workplace-related issues, social concerns and economic costs.
There is evidence that concludes that drug or substance use including medical and recreational marijuana use contributes to workplace tardiness, absenteeism, reduced productivity, property offenses, corruption and violence. Because substance abuse influences the psychological behavior of the user, it also leads to issues affecting interactions and working relationships in the industry which disturbs the stability and culture of the workplace. A correlation has been established between substance use and the user’s increased risk for involvement in workplace accidents, traffic violations, and road mishaps which place the safety of the other employees in danger.
Furthermore, drug or substance abuse also poses a threat to the general health of the other workers in the business. Whether it is smoking marijuana or smoking tobacco, secondhand smoke increases the risk of incurring medical conditions that include allergies, respiratory disorders, and lung cancer. All these factors boil down to imposing an added economic burden on the industry and the employer as when they have to unnecessarily incur expenses for hazards, insurance costs, healthcare, worker’s compensation claims, property replacement or repair, and relevant expenditures.
In fact, one survey showed that in 2002, the national estimated cost of lost worker productivity due to absenteeism and poor job performance as a result of illicit drug use amounted to $129 billion. In efforts to address, minimize, and prevent the occurrence of these hazards brought about by drug abuse, both the federal government and the private business sector have implemented drug-free workplace policies. The observance of such regulations that include the conduct of drug testing is aimed to control or prevent illicit drug use among workers.
These measures have found support in Congress, state legislatures, business sectors, communities, and the public even as the war on drugs rages on. The goal of these policies is to both deter drug use as well as detect it. In case of the latter, employers are urged to refer those who have tested positive to an intervention or drug rehabilitation program that ideally, should likewise be provided and included within the scope of their comprehensive drug-free workplace programs.
Workplace Drug Testing in Federal Agencies
Drug testing in the federal workplace came about when the U.S. Military saw an increase in the number of heroin users among its personnel who served in the Vietnam War during the 1960’s and the 1970’s. During a survey conducted in 1980, about 27 percent of the military personnel reported some form of drug use. This prompted the launch of a large-scale drug testing program within the military. This eventually led to the implementation of a “no tolerance policy” by the Department of Defense (DoD). Under the policy, drug use was considered a serious offense and a member of the military who tested positive was subjected to the corresponding punishment.
The drug testing program within the military was implemented for a five-year period and it saw significant results. In 1985, only 9 percent of the personnel reported drug use. Following this, then President Ronald Reagan issued Executive Order 12564 on September 15, 1986. The E.O mandated federal agencies to likewise observe a drug-free workplace policy in order to set an example for all American industries. Under the regulation, employees were required to refrain from using illegal drugs while on the job. Included within the scope of the policy, were implementation of pre-employment screening, random drug testing, and testing for reasonable suspicion.
The goal was to deter drug use as well as to identify workers who were actively using illegal substances in order to refer them to employee assistance programs (EAPs). This E.O. eventually resulted in the passage by Congress of the Drug-Free Workplace Act of 1988. On April 11, 1988, the Secretary of the Department of Health and Human Services (DHHS) promulgated the Mandatory Guidelines for Federal Workplace Drug Testing Programs (also called the National Institute on Drug Abuse Guidelines). The regulations required federal agencies to at least test for two drugs – marijuana and cocaine.
Since then, all federally regulated workplace drug tests have included other classes of drugs including amphetamine or methamphetamine, marijuana or cannabis, cocaine, opiates, phencyclidine (PCP) and Ecstasy. Confirmatory testing is also authorized. The DHHS Guidelines also established and specified the role of the Medical Review Officer (MRO). Among others, the MRO is tasked to review all positive drug test results before making a report to the employers concerned. He is also required to verify positive results and discover whether these are due to medical or non-medical use of drugs. All claims of medical use are likewise to be validated by the MRO before the report is submitted to the employers.
On November 21, 1988, the United States Department of Transportation (DOT) also issued guidelines to be observed by six of its administrations, namely: 1. Federal Highway Administration; 2. Federal Railroad Administration; 3. U.S. Coast Guard; 4. Federal Aviation Administration; 5. Urban Mass Transportation Administration; and 6) Research and Special Programs Administration. The DOT Guidelines are specifically intended to apply to industries that operate under the regulation and supervision of the 6 administrations. These were later codified and renamed as the Procedures for Transportation Workplace Drug Testing Programs, to distinguish them from the general DHHS Mandatory Guidelines for Workplace Drug Testing Programs which were earlier released. Under the DOT program, a DOT employee’s services may be terminated based on any of the following grounds:
- Refusal to enter or complete a drug rehabilitation program;
- Repeated use of drugs;
- Refusal to provide a urine sample for drug testing;
- Adulteration or substitution of the urine specimen;
- Use of illegal drugs while on duty;
- Involvement in illegal drug trafficking.
An employee found positive for drugs must be immediately removed from the job until he has successfully completed the required treatment, can pass a subsequent drug test, and has been recommended to return to duty by a substance abuse professional.
DOT Workplace Drug Testing Policies Contested
The implementation of the DOT Guidelines did not escape legal controversy. It was questioned on the grounds of privacy intrusion. The opposition also maintained that random drug testing violated their rights against government mandated searches and seizures, which are protected under the Fourth Amendment. These issues, however, were settled by the U.S. Supreme Court in the cases of Skinner v. Railway Labor Executives’ Association and Treasury Employees v. Von Raab. Both decisions were held in 1989. According to the Supreme Court’s rulings in the aforementioned cases, the conduct of a random drug testing does not constitute a violation of the Fourth Amendment nor of the right to privacy inasmuch as public safety is of paramount consideration and affords a higher protection compared to an individual’s right to privacy. The decisions were not further contested and today, the Court’s opinions on the matter still stand.
Workplace Drug Testing in the Private Sector
Workplace drug testing in private industries and business establishments also emerged in the 1980’s after recognition of the growing number of workers engaged in drug use. Initial drug-free workplace programs included employee education, employee assistance programs, intervention and treatment option, drug testing, and even personal searches. Among the first industries to implement such policies were those involved in oil drilling. Because the nature of tasks performed by the laborers was extremely dangerous to the extent that working under the influence of drugs could place other workers at risk, they were the ones who were first made to undergo drug testing.
Regretfully, the results yielded positive results and an overall rate that was higher than expected. This prompted other industries such as chemical companies, refineries and other businesses that involved the performance of jobs that were at a high risk for accidents and hazards. Subsequently, contractors, subcontractors and vendors were likewise required to perform drug testing among their employees to ensure that those who were deployed to companies under contract agreements were not actively involved in drug use. Small and medium-sized companies followed suit and workplace drug-free policies were also implemented in their respective workplaces.
Benefits of Implementing Workplace Drug Testing Policies
At present, observing a drug-free workplace has almost become a default policy among private businesses regardless of the nature of the industry, the scope of jobs performed by workers, or of the size of the organization’s manpower. While only those operating under the supervision of the DOT or by virtue of a federal contract are mandated to observe a zero-tolerance policy that includes the conduct of drug testing, private business owners have found it advantageous to draft and implement similar policies for various reasons including the deterrence of drug use in the workplace, protection of the health and safety of their employees, reduction in workplace accidents and hazards, reduction in healthcare or insurance costs, and maintenance of work output or productivity.
According to the National Institute on Drug Abuse (NIDA), employers who have implemented drug-free workplace policies including drug testing have reported the following positive observations:
- Improvements in employee morale and productivity;
- Decrease in absenteeism, downtime, accidents, theft, and turnover rates;
- Better health status among their employees and their respective family members which resulted in decreased use of medical benefits;
- Decrease in workers’ compensation claims and insurance costs.
Several studies have shown the benefits of implementing a drug-free workplace policy. Conducting drug testing among workers is in the long run, cost-effective for the organization. But it should be noted that the success of the policy is affected by a number of variables. Employers are urged to seek proper legal advice, to keep abreast with the evolving landscape of laws and jurisprudence that affect workplace anti-drug policies, and to study their organizational needs thoroughly in order to come up with comprehensive drug-free workplace programs that can protect the business, the workers and the public.