Drug Testing in the Public Sector - Research Paper Example

? Drug Testing in the Public Sector Contents Introduction 3 Findings from various research studies 3 Role of Government 4 Legal Factors 7 Federal Drug Testing Legislation 7 State Drug Testing Legislation 8 FMCSA Alcohol and Drug Testing Rules 9 Drug testing in the public sector employers 9 Perception and trend for drug testing in the workplace 11 Privacy issues 12 Ethicality of drug testing in the public sector 13 Role of DTC 14 Drug Testing through GC/MS 14 Pros and cons of drug testing 15 Conclusion 16 References 19 Bibliography 20 Introduction Drug testing in public sectors has become a much discussed issue of the modern corporate cultures since both the employer and the employee believes that drug testing is essential for maintaining the safety of the organization. However the procedure of drug testing involves a lot of investment. It has always remained as a matter of controversy for the society to decide whether to invest towards the program and whether to organize rehab facilities for the addicted ones. In this context we can refer to the research by the Ulster protestant, Brian Mawhinney, who was extremely against the application of mind altering drugs and considered it as highly immoral to provide syringes and needles for the purpose of treating the drug users. Mr. Mawhinney therefore conducted a survey for gathering data about the positive sides of those services and their role in preventing the infections from spreading. The research delivered results proving that genuine health related advantages can be gained through such services and consequently he started supporting the program. iFor further discussions on this issue it is necessary to go through the various thoughts and perceptions of the various researchers and their researches regarding drug testing particularly in the public sector. Findings from various research studies The United States of America is wedged in an outbreak of prescription drug abuse and overuse, and the measures to defy such action are impacting drug supply and recommendation to a great extent.ii Studies state that almost half of the European populations taking part in the rehabilitation program are the workers. We all are quite aware of the negative impacts of illicit drugs. It can contribute towards violence, accidents and often lead to suicidal attempts that might give rise to long term absence from job, dropped level of performance, accidents and subsequently unemployment. Further the usage of illicit drugs causes psychiatric impairment and the injections used during drug intake can eventually spread communicable sickness like HIV and Hepatitis B and C.iii Illicit drug abuse proves to be a serious spoil for the health and safety of the drug addicts as well as the non addicts along with the society at large. For instance, the one who is driving a car and is under some drug influence, tends to cause accident to the passengers, pedestrians and the drivers of the other cars, and for this reason Drug Testing at the office especially in the public sectors must aim at trimming down the costs with respect to absenteeism, employee’s work life and productivity. According to the Quest Diagnostics director Barry Sample, “We all know how devastating a single accident can be when an impaired driver gets behind the wheel,”iv not only this, the work place should also try to eradicate drug abuse for the safety and security of the community.v The practice of drug testing is most widespread among the employees in responsive designations within the public sector, private transportation organizations and those dealing with the federal government.vi Role of Government CICAD plays a major role in the drug abuse eradication program specifically in the regions of Latin American and the United States. viiGovernment plays a crucial role in this regard since it is their duty to maintain and protect the society from any kind of abuse. In the year 1988, the Drug-Free Workplace Act had been passed by the congress government that ultimately gave rise to the Federal Workplace Drug Testing Programs guidelines and those were made compulsory for the citizens. The intention was establishing an abuse free work ambience for the federal employees that required them to go through a urine test and pass it, before joining their job.viii According to the Act, the following steps should be maintained by every workplace to offer a drug-free environment to the employees- 1. Presenting and circulating a statement of policies to all the workers and informing the employees that the illegitimate production, circulation, exemption, ownership, or usage of a forbidden substance is illicit in the premises of the workplace and anyone found doing such things will be treated accordingly under specified laws of the government. 2. Establishing a drug-less awareness agenda to make the workers responsive about- The dangers of illicit drug usage in the place of work The rule of maintaining a drug-less office environment Providing the employees with drug rehabilitation, counseling, and various employee assistance programs. The punishments applicable on the workers for the illicit drug usage cases. 3. Providing the employees with notifications which will clearly state that as a mandatory criteria of getting a job offer on a federal grant or contract, the worker must- Follow the terms and conditions of the statement of policy Inform the job provider within 5 days, in case she or he is condemned of an illegal drug violation act within the office premise. 4. To provide notification to the granting or contracting group in ten days following the receipt of communication that a certain worker has been condemned of an illicit drug violation in the place of work. 5. Imposing a punishment on or asking for active participation in a drug usage rehabilitation program or assistance by any worker who is condemned of a reported drug abuse within the workplace. 6. Making a constant, trustworthy and alert effort to preserve a drug-less office by attaining the obligations of the Act. ix Drug testing has been highly enhanced over the past years and the systems have become more appropriate at present for testing the employees as they are inexpensive, reliable and simpler. Employers belonging to the private sector are not confined by the similar obligations as are the public sector employers. The Public sector workers are offered protection on the basis of the 4th amendment (restricting illicit seizures and searches) and the 5th amendment (offering guarantee on the process due), whilst the workers of the private sector are not exposed to such criterion. For several causes drug testing is also adopted by various private employers. Additionally the employers of the private sector hold federal bonds which have been made to be must complying with the Drug Free Workplace Act 1988x. Under this Act, an employer of the private sector operating business under the policies of the federal guidelines must provide a policy to the employees which encourage a drug-less work environment. The owner of the private firm must take further steps in the drug testing process by conducting tests for the usage of illegal drugs even on the job providers but those who are in sensitive designations should be tackled with care. In this context it can be mentioned that the job providers in the private sector might be sued on the basis of defamation, invasion of privacy, deliberate infliction of emotional suffering etc. Moreover, a private employer opting not to appear for the test might be legally responsible for causing injuries to the co-workers by the usage of drugs and for the employee’s xi Legal Factors While discussing about the factor of drug testing in the workplace, it is important to consider the legal guidelines and frameworks that exist in these regards. There is a high level of concern that exists for the case of workplace substance abuse. Because of the case of growing concern over drug abuse in the workplace, a large number of policies has been designed and implemented which has resulted in the banning for possession or usage of drugs in the workplaces. A considerable number of policies have also been designed for the purpose of testing employees in connection to drug abuse. The testing for drug abuse among employees can be subjective to either reasonable causes or even to random testing. As per the guideline provided by the court, the drug testing exercise conducted by the entities associated with the government should be justified under the meaning and specification provided in the Fourth Amendment. However, it is important to highlight that the drug testing by the private employers are in no way subjected to the Fourth Amendment as there is no involvement of state action.xii While talking about the legal boundaries that exist in regards to drug testing in the workplace, it is important to highlight that a few laws also exists that help in protecting the employer’s interest. Reference can be drawn towards the federal drug testing legislation as well as state drug testing legislation. Federal Drug Testing Legislation In elaborating about the federal drug testing legislation, it can be stated that the practice of drug testing of the employees is not subjective to any federal legislation. On the contrary, the federal drug testing legislation has made it compulsory for employees belonging to specific sectors to be subjected to random or periodic drug testing at the workplaces. In a more specific manner, it can be stated that the federal drug testing legislation has made it important for the employees belonging to the airline as well as the transportation sector to be subjective to random as well as periodic drug testing. Also, the Drug - Free Workplace Act passed in the year 1988 by the Congress has made it a requirement for government contractors who are handling more than $25,000 of business on an annual basis to create very specific drug free workplace policies. They are also supposed to engage as well as follow as drug free awareness campaigns at their workplaces. It has to be mentioned that the Drug Free Workplace Act is also applicable for government contractors who are recipients of federal grants which is above the benchmark of $25,000.xiii State Drug Testing Legislation Various states in the United States of America have passed multiple legislations in connection to drug testing of the employees. Many of the laws that have been set suggest compulsory procedure specific requirements for the employers to subject the employees or job applicants to the process of drug testing. On a general note, the laws make the employers to provide the employees working for them with a written statement of the drug testing policy. The laws also require confirmatory tests to be performed on the employees in case an initial test result turns out as positive. Also, the law provides the employees with the power to retest their positively tested samples at their own expenses. The laws provide the opportunity to the positive drug tested employees to enroll in a drug rehabilitation program as per their own convenience. Finally, the laws also provide the scope and option to the employers to terminate the employees’ workplace specific contracts in case they refuse to participate in a drug rehabilitation program. The option of termination of the job contract is also valid for the employers when the employees who have been tested as positive in a random or periodic drug test violates the terms and conditions mentioned in the rehabilitation program. In the United States, multiple states which Connecticut as well as West Virginia, require the employers to have reasonable grounds as well as solid evidence before suspect that the employees using drugs and subjecting them to random or periodic drug tests. It is however important to note that this specific factor is not applicable in situations where the employees are working in safety sensitive positions or are normally subjective to federal drug testing requirements.xiv FMCSA Alcohol and Drug Testing Rules Apart from the Drug- Free Workplace Act passed in the year 1988 by the Congress, other rules and legal compliance factors for drug testing in the work place also exists in the United States. The Department of Transportation, Federal Motor Carrier Safety Administration (FMCSA) regulations has made it mandatory to test the drivers who are required to own commercial driver’s license (CDL) for alcohol as well as drug testing. The rules of Department of Transportation (DOT) comprises of procedures related to urinalysis as well as breath taking test for alcohol detection.xv Drug testing in the public sector employers In discussing about the main topic which is drug testing in the public sector, the focus needs to be given on the employers. While the employers look forward to implementing the rules and regulations in connection to drug testing of the employees in the workplace, various legal issues also emerge on a regular basis. Talking in this connection, it is important to mention about the case that arose as a result of conflict between the New York City Transit Authority and Beazer. As a solution to the case, the Supreme Court upheld the constitutionality belonging to the New York City Transit Authority rule, thereby prohibiting the employment of persons using methadone. It is important to highlight that the rule was implemented so as to serve the purpose of maintaining efficacy and safety in the city’s transport service system. It has to be taken into consideration that the constitution specific challenges to the issues of drug testing in the public sector is largely based on the Fourth Amendment. The Fourth Amendment categorizes the issue of drug testing as a search and strictly forbids unreasonable searches as well as seizures by the government in connection to drug testing. As per the Fourth Amendment, the government of the United States is bound to provide a reasonable cause or a logical explanation to justify the case of drug testing on the employees at the workplace. In connection to this issue, the public case of Railway Labor Executives’ Association Vs Skinner has to be cited. In the ruling, the Supreme Court supported the constitutionality of the Federal Railroad Administration regulation, which requires conduction of drug tests for all railroad employees who are associated with accidents. In this particular case, the Supreme Court specified that in the event of an accident, the company does not have to provide any logical explanation in connection to suspicion of drug usage by the concerned employees. The Supreme Court also ruled that this new condition has been issued in the interest of public safety and thereby naturally outreaches the privacy issues of the employees who are working for the company. Apart from this case, there is another high profile case that is important to be discussed in this connection. The case happened in regards to the legal battle between Von Raab and National Treasury Employees Union. In the ruling for this particular case, the Supreme Court of the nation of America supported the rules designed by the US Customs Service. The rules of the US Customs Service called for drug test of all employees including the applicants who are associated with various positions related to authoritative prohibition of drug smuggling, carrying and usage of fire arms as well as access and usage of highly classified information and materials. It is highly interesting to note that the factor of public interest as well as safety along with the need to prevent law enforcement officials from being subjected to blackmailing and bribery because of their own substance abuse habits created a very valid and justified reason for the purpose of implementing and triggering the drug testing program with compliance to the Fourth Amendment. Additionally, it needs to be highlighted that the unique mission and goal of the government based agency served as a very justifiable reason for testing all the employees in the associated positions even without showing a specific cause or suspicion for testing.xvi Perception and trend for drug testing in the workplace The issues of drug testing in the workplace are a very sensitive one. A large number of employees view the process of drug testing as an incident of search and seizure. Also, many employees wrongly estimate that their respective employers cannot subject them to random or periodic testing since the nation’s Fourth Amendment offers protection to its citizens against the act of unreasonable search and seizure. This erroneous understanding of the Fourth Amendment by the masses often triggers confusion among understanding public sector constitutional limitations with that of the private sector. It is important to clarify that though the Fourth Amendment provides a protection to the citizens against unreasonable searching, yet it is applicable only to the incidents of unreasonable searches that are executed by the government. As a result, the government employers can also conduct drug testing on their employees if they possess the ability to provide a justified explanation for their search. Apart from the public sector, the employees of the private sector can also be subjected to the case of drug testing. However, the issue of drug testing in the private sector is often viewed as a mandatory step in the pre-employment screening procedures. Also, in the private sector, the employees can be subjected to random as well as periodic drug testing throughout their entire employment period, provided it is an organizational process and is carried out in a uniform fashion throughout the organization.xvii Privacy issues While discussing about the process of drug testing in the workplace, it is important to consider that the matter is a concern of privacy for the employees. The issues related to privacy concerns by the employees can be addressed and handled in a very efficient manner. The simplest way of eliminating and tackling the privacy issue for drug testing is to get the employees consent for conducting periodic drug testing at the workplaces. This strategy of the employers will help in waiving the various resistances that might develop because of fears of intrusion of privacy of the employees. Also, the employer can choose to opt for the approach of informing the employees beforehand that they may be subjected to random drug testing at the work place because of policy and contractor based requirements. This approach will automatically acts as a deterrent for many employees from engaging in substance abuse and thereby can have a very ethical interpretation from the perspective of the employees. However, while discussing about the factor of privacy in the public sector, the legal guidelines that exists in this connection has to be considered. In the year 1986, President Reagan in the United States passed Executive Order 12564xviii which led to the establishment of the federal government’s drug testing program. The guidelines by the Office of the Personnel Management, which was designed on the basis of the Executive Order passed by the President, provided a high amount of authority on the agency heads on who can be tested. On the basis of these new guidelines, the agencies were provided the power to test anyone for drugs, in case they have concrete evidence that the intended candidate of drug testing is associated with consumption of controlled drugs. Also, this provided the power to the government based agencies to identify a set of highly sensitive job positions, the employees of which can be subjected to drug testing at the workplaces. Basically most of these positions are related to the department of public health, national security. Also, the positions include the division which are responsible for controlling the highly valuable assets and other energy based assets of the state and national government.xix Ethicality of drug testing in the public sector It needs to be considered that the issue of drug testing is a very sensitive issue and has the ability to create and trigger substantial damage in an individual’s career. While various legal frameworks and mandates exists that make it necessary to implement random as well as periodic drug testing on the employees working in the public sector, yet the entire situation has to be handled in the most delicate fashion. For a public administration professional it is of utmost importance to handle the controversies of the workplace related to employee ethics, sexual harassment and of course drug testing.xx In case an employee associated with the public sector tests positive in the process of random or periodic drug testing at the workplace, the entire situation needs to be handled with utmost care as it might lead to generation of bad reputation for the employee as well as might even trigger his or her termination from the job. The results for the drug testing needs to be highly accurate and in case of any uncertainty the entire test needs to be redone in the proper manner on the employee. Also, the human resource professionals of the public sector needs to make sure that the drug testing exercise in the public sector organization is being carried out by licensed and approved laboratory who has the ability to deliver high quality and accurate results.xxi Role of DTC In order to enhance the possible contributions of the procedure of drug testing, it can be suggested that the drug-abuse cure program identifies one personnel of the organization who will be asked to play the part of a drug-testing coordinator (DTC). The personnel will be held responsible for getting the idea about the entire procedure of the drug-testing program, to be acquainted with the various testing alternative obtainable from the program and the person will be in-charge of the management of the day-to-day operations of the drug testing program. The DTC will also be delegated with responsibilities related to other drug-cure associations where he/she will get to know how drug testing is used and how to compare and choose the best approaches. Further, the DTC has the capability to establish a constructive working union with the regional drug-testing plans including the key organizations and the criminal-justice schools and programsxxii Drug Testing through GC/MS The concept of drug-testing in the workplace has always necessitated the corroboration of initial drug tests from the time when the military and public sector drug testing programs had been launched. In the drug testing procedure GC/MS are being considered as the “gold standard” for several decades, as these frameworks come with various procedures that are well-developed and various criterions for the affirmation of a presumably positive outcome. Usually the GC-MS technique of drug testing involves confirmation of TCAs, opioids, fentanyl, cannabinoids and tramadolxxiii. The US Department of Health and Human Services (HHS) would facilitate the application of other chromatography-mass spectrometry methods for confirmation that started during October 2010 that included GC/MS/MS, LC/MS, and LC/MS/MS. The triple quadruple (LC/MS/MS) technique is considered to be most well accepted for high quantization and increased confidence recognition. xxiv Pros and cons of drug testing Drug testing is no doubt an approach undertaken by the employer to let his employees work in a drug free environment. A drug addict employee could prove to be harmful for the organization as well as its employees. Moreover drug testing serves the purpose of the entire community to eradicate drugs from the world and therefore it has become a compulsory law for the Federal employers to make the job applicant appear for the drug test and if found with positive results, the person is offered with various rehab and assistance programs. The employers of the modern era consider biometrics information as an important means of obtaining data about the employee who is about to appear for a job interview. The present scenario of UK in the aspect of drug testing is growing at a fast pace and the test is extensively used where the employee on whom the test will be conducted appears for a risky job like driving. Drug testing is far more prevalent in the USA but recently the practice of conducting the test is declining at a remarkable rate since the tests lack any proof as it claims that it increases productivity or enhances safety of the organization and the employees. Many consider drug testing as a means of violating the bodily privacy of a person and this perception forces them to avoid applying for a job or prevents them from appearing for an interview in organizations that follow the drug testing practices. Additionally theses tests fail to differentiate between recreational and heavy drug users and self-restraint for a few days prior to the test will normally yield negative results i.e., the person will be considered to be drug-free. Conclusion After considering all the above discussions we can conclude though drug abuse can cause serious implications in the workplace, specially the public sector which mandatorily and directly falls within the framework of Drug-Free Workplace Act still drug testing merely points out the presence of a particular drug within a person’s body, therefore it cannot be considered as a ground for evaluating whether a person is suitable for a particular job or not.xxv Read More