Drug Testing Employees and Applicants: Ethical or not - Research Paper Example

? Drug Testing of Employees and Applicants Drug testing of employees and applicants remains the issue of hot public debate. Lawsuits and suggestions concerning drug testing in the workplace are flooding U.S. courts and governing bodies. The goal of this paper is to re-evaluate the legal and ethical sides of drug testing in the workplace. Four different legal cases are used to reconsider the validity and ethics of drug testing from the employee and employer’s perspective. Utilitarian and Kantian ethics are applied. Dozens of legal cases, lawsuits and suggestions are flooding U.S. courts and governing bodies. The issue of drug testing in the workplace exposes the ongoing tension between employee rights for privacy and the employer’s right to discharge the worker and terminate the at-will employment agreement. On the one hand, drug testing is believed to violate the Fourth Amendment and the basis premises of the U.S. Labor law protection. On the other hand, employers have the legal right to monitor and evaluate employee performance and address illicit drug issues, especially when it directly subjects employees and the community to health dangers (e.g., the use of drugs by policemen, firefighters, pilots, train conductors, etc.). This being said, and taking in consideration employers’ obligation to guarantee safety in the workplace, drug testing can be considered legal and ethical when it is based on reasonable suspicion and has the potential to adversely impact the safety of the employees, other workers, and the rest of community. The prevailing majority of employers in the United States are not required to test their employees and applicants for drug use. Moreover, most states have already enacted laws and regulations limiting the use of drug testing in the workplace (United States Department of Labor, 2010). Even the Drug-Free Workplace Act of 1988 does not make drug testing a mandatory condition of employment (United States Department of Labor, 2010). Nonetheless, the debate surrounding the issue of workplace drug testing continues to persist, because employees struggle for their rights, and of course not all the workers consider that the employer’s right to test them for using drug should exist. Employers seek to introduce drug-free workplace policies, to reduce the costs of illicit drug use in the workplace and prevent the dangers associated with drug abuse in the workplace (Occupational Drug Testing, 2011). Employees, in turn, want to preserve the right to privacy and confidentiality, because testing them for using drugs at the workplace really violates their rights. More often than not, drug testing is considered as illegal, unethical, and similar to unreasonable seizures and searches protected by Fourth Amendment of the U.S. Constitution. However, a number of other laws and regulations also apply to the case, and courts do not always accept employee side in drug testing debates. Dozens of employees in the U.S. filed lawsuits against their current or former employers in terms of drug testing in the workplace. More often than not, employees argue that drug testing is illegal and unethical, violates their right to privacy and cannot be considered a valid reason for employment termination. In Luck v. Southern Pacific Transportation Co. (1990). 218 Cal. App. 3d1 [267 Cal. Rptr. 618] the petitioner Barbara A. Luck filed a lawsuit against her employer for terminating her contract after she refused to pass a mandatory drug test. Luck was rewarded almost half million dollars in rewards and compensations, and the U.S. Supreme Court confirmed the decision of the lower circuit court (Luck v. Southern Pacific Transportation Co. (1990). 218 Cal. App. 3d1 [267 Cal. Rptr. 618]). The decision was based on the premise that drug testing violates the Fourth Amendment to the Bill of Rights. Later in 2009, a North Carolina Appellate Court declared mandatory testing of teachers in the state unconstitutional (ACLU, 2010). The decision was based on another statute – the Louisiana constitution – which grants greater privacy protection than the U.S. Constitution (ACLU, 2010). In both cases, the rights of employees were the top legal and ethical priority. In both cases, courts reaffirmed the validity of Kantian ethics that relies on the rights and morals of individual actions, with no regard to their consequences. However, what should employers do if they feel that employees use drugs? Moreover, what should employers do if they feel that illicit drug use subjects employees and their colleagues to unreasonable health risks? Finally, what if employers find out that their workers use legal prescription drugs that may cause adverse effects on the quality and safety of the organization’s performance? The history of case law in the U.S. has several answers to these questions. In 2001 the California Supreme Court ruled in favor of Ragingwire Telecommunications, Inc. which was sued for terminating Gary Ross’s employment (Ross v. Ragingwire Telecommunications. 3rd Dist. Ct. App. Co43392). The Supreme Court determined that companies had a legal right to terminate an employee who uses drugs even if the employer uses drugs for medical reasons (Ross v. Ragingwire Telecommunications. 3rd Dist. Ct. App. Co43392). A similar case was decided and solved in 2008, when Daniel Kosmicki sued Burlington Northern & Santa Fe Railway Company for terminating his employment after the employer discovered he was using prescription drugs and, as a result, violated the company’s drug policies (Kosmicki v. Burlington Northern Santa Fe Railway Company No. 08-1511). Kosmicki worked as a train conductor with Burlington Northern & Santa Fe Railway Co. and was aware of the company’s policy that prohibited the use of illicit drugs and prescription drugs if they have the risk of causing adverse effects on employee performance (Kosmicki v. Burlington Northern Santa Fe Railway Company. No. 08-1511). In case of Ross v. Ragingwire Telecommunications, the Court relied on California medical marijuana laws and clarified that the laws did not cover the issues of employment termination. The case of Kosmicki v. Burlington (2008) was much more complex, as it involved the principles and articles of the Americans with Disabilities Act (ADA). The plaintiff was convinced that, based on the ADA, he was disabled and, therefore, his termination was illegal (Kosmicki v. Burlington Northern Santa Fe Railway Company. No. 08-1511). Moreover, the Federal Rehabilitation Act of 1973 prohibits any discrimination against those who have physical or mental impairment (Samuels, 1989). In these cases, courts did not merely defend the rights of employers but thought of the possible consequences and risks of drug use for the quality and safety in the workplace. In light of these cases, can drug testing in the workplace be ethical? There is no definite answer to this question. On the one hand, employees perceive drug testing (especially when it is a mandatory condition for employment) as unethical and illegal, which violates their privacy rights. On the other hand, employers’ striving to reduce costs and prevent the risks of illicit drug use in the workplace cannot be easily dismissed. Eventually, employers are to be held liable for failure to guarantee safety of their employees and the community in which they operate. The rights of employees are important, but the consequences of their actions in the workplace need to be considered; this is particularly the case of the so-called “sensitive” professions, including firefighters, policemen, and even customs workers. In the context of drug testing, utilitarian ethics looks more applicable and appropriate. Of particular interest is the case of Treasury Employees v. Von Raab (1989). 484 U.S. 656, when the U.S. Supreme Court held in favor of the constitutionality of drug testing for employees who apply for sensitive professions/ positions. Apparently, when it comes to safety and security, employee rights move to the background. Consequences matter and drug testing in the workplace can sometimes save dozens of human lives. Employers must have an obligation to develop broad drug free workplace policies and make employees aware of such policies. Employees must understand that the results of drug testing can be crucial for the future of their organization and other people. Utilitarian ethics must become the foundational ingredient of drug testing decisions affecting workplace. The principles of Utilitarian ethics will help to resolve the existing controversy between employee rights to privacy and the principles of safety in the workplace. Conclusion Drug testing remains the source of numerous legal and social controversies. The debate of whether or not drug testing in the workplace is ethical continues to persist. Employers seek to implement drug-free workplace policies, as the latter help to reduce the costs of illicit drug use in the workplace. Employees, in turn, want to preserve the right to privacy and confidentiality. Taking in consideration employers’ obligation to guarantee safety in the workplace, drug testing is legal and ethical as long as illicit drug use can adversely impact the safety of the employee, other workers, and the rest of community. This is particularly the case of sensitive professions, like firefighters, policemen, and aircraft pilots. Employee rights move to the background, when the safety and security of thousands of other people are at stake. Employees must be prepared to accept the necessity of drug testing in the workplace, if they care about their own and their colleagues and employers’ future. References ACLU. (2010). Teacher drug testing policies declared unconstitutional in North Carolina, Louisiana. American Civil Liberties Union. Retrieved from http://www.aclu.org/drug-law-reform/teacher-drug-testing-policies-declared-unconstitutional-north-carolina-louisiana Kosmicki v. Burlington Northern Santa Fe Railway Company. (2008). No. 08-1511. Luck v. Southern Pacific Transportation Co. (1990). 218 Cal. App. 3d1 [267 Cal. Rptr. 618]. Occupational Drug Testing. (2011). Convenient drug and alcohol testing. Occupational Drug Testing. Retrieved from http://www.occupationaldrugtesting.com/ Ross v. Ragingwire Telecommunications. (2001). 3rd Dist. Ct. App. Co43392. Samuels, P.N. (1989). Legal and ethical aspects of drug testing. Bulleting of New York Academy of Medicine, 65(2), 196-201. Treasury Employees v. Von Raab (1989). 484 U.S. 656. United States Department of Labor. (2010). Drug free workplace policy builder. U.S. Department of Labor. Retrieved from http://www.dol.gov/elaws/asp/drugfree/drugs/screen92.asp Read More