Is Workplace Drug Testing a Wise Corporate Policy - Research Paper Example

Is Workplace Drug Testing a Wise Corporate Policy? Introduction Workplace drug testing is a sensitive issue to discuss in the light of allusions to the compromise of the fourth amendment of the American constitution and invasion of the right of privacy (Lumas 129, 130). Hence, whether or not employers’ interest in drug testing is a legitimate corporate prerogative, there shall always be misgivings about both the why and how of its implementation.  The thesis of this paper revolves around the concept that drug testing is a precautionary method which safeguards companies from hiring and training employees who will not be as productive as those that do not use drugs, and that drug testing also functions to minimize work related injuries. The following exposition will venture to present a neutral position on drug testing with the end in view of injecting objectivity into an otherwise volatile subject. Why companies enforce drug testing It can not be denied that drug use has substantially changed the norms of behavior among all sectors of society, particularly in the workplace (Carpenter 795; Godfrey and Parrott 30; Walsh 120; Harris 357). Latest available government data showed that 73.8% of full-time workers who use illicit drugs came from only seven industries, namely: accommodation and food services (16.9%); construction (13.7%); arts, entertainment, and recreation (11.6%); information (11.3%); management of companies and enterprises, administrative support, waste management, and remediation services (10.9%); retail trade (9.4%); and other services, except public administration (8.8%) (SAMSHA n. pag.). Violence in the workplace is a serious concern for both workers and employers (Chappell, and Di Martino 15). Interestingly, studies revealed that drug use is a common catalyst of workplace violence (Hanson, Venturelli and Fleckenstein 41). The following reasons summarize employers’ reasons for implementing drug testing policies: to discourage drug use among employees; negate chances of hiring drug users; identify employees with drug problems and provide assistance for medical intervention; keep the workplace safe; protect the public interest and gain consumer confidence pertaining to workplace safety of their employers; abide by drug testing regulations both on the state and federal levels; and benefit from such programs as the Workers’ Compensation Premium Discount (US Department of Labor par 3). These are the circumstances surrounding the decision of many companies to enforce mandatory drug testing to new recruits and random drug testing to tenured employees. While it is apparent that drug testing is management’s way of adjusting to the changing norms precipitated by drug use among employees, the practice is not readily acceptable for most employees. Management believes that imposing such policy is a necessary evil. Godfrey and Parrott explained the necessity of curbing drug use among employees on the basis of drug use in the workplace resulting to incurred costs for both management and the employees. This cost is measured according to the impact of drug use on the company productivity. Cost is further broken down into the effect of an employee’s availability to contribute to productivity and the actual productivity of labor while the employee is at work (21). Prevalence of drug testing in the industry Van Fleet and Van Fleet considered safety as the primordial concern of practically all companies especially those working in the assembly line and in medical jobs (74). The trucking industry also conforms to mandated drug testing to ensure the safety of the highways from drug use-related accidents (Jacobson 131). Likewise, transportations companies also police their ranks by complying with the Department of Transportation policy on drug testing (Draper 308). To date, some 40 per cent of companies included in the Fortune 500 are already enforcing drug screening. These companies, however, revealed that their drug testing policy is more of requirement compliance than admittance that drug use among employees is, indeed a significant problem (Tunnel 6). Similarly, findings from a survey conducted by the American Management Association among 1,627 corporations revealed that close to four quarters require drug testing on all their job applicants (Draper 308). Meanwhile, Staples observed extensive differences in the pervasiveness of drug testing from one industry to another, as well as education-wise and geography-wise. Employees working on blue-collar jobs tend to be subjected to drug testing more than their white collar counterparts. There is also more likelihood for full-time male employees who do not have a college degree and are members of a union to be subjected for both drug and alcohol testing. The southern part conducts more drug testing than the rest of the US (187, 188). Types of drug testing There are at least four standard modes of carrying out drug testing in the US – that is, by way of saliva, urine, nail or hair. Saliva. Saliva collected for drug testing is a cheaper and less invasive alternative for blood samples since the proportion of drugs present in blood and urine is almost the same. Saliva is collected with a cotton swab or an absorbent material placed on the mouth for one minute then placed on a container. The fluid is extracted mechanically and is subjected to immunoassay and GC-MS. However, the drug detection window (DDW) is very short (12 to 24 hours). Therefore, it cannot detect if a person has recently consumed marijuana or any other abused drug (Newel 38-39). Urine. Urine is the most commonly utilized test sample for the detection of drug use or abuse. Urine is commonly collected under direct observation to ensure that the sample is not tampered. The following are standard test for urine: (1) SAMHSA-51 is a standard drug panel used to detect five commonly-used drugs: marijuana; cocaine; PCP (phencyclidine); amphetamine / methamphetamine; and morphine / codeine (DuPont and Brady 53); (2) gas chromatography uses mass spectrometry in detecting amphetamine-type (ATS) stimulants such as amphetamine and methamphetamine (Dass 493); (3) immunoassay test detects the presence of drugs based on antibodies created by cloned bacteria. Immunoassay tests are used to check for marijuana, PCP and cocaine (Slododa and Bukoski 209). Nail. Similar to hair, nails absorb drug traces from the root of the nail bed. The use of nail samples for drug tests was initially utilized for postmortem studies. Nail samples were also sampled from babies to determine if their mothers have been taking prohibited drugs (Wong and Tse 24). Hence, nails have a long drug detection window. Samples are subjected to immunoassays and GC-MS test. However, there is a risk of contamination since our hands are constantly in contact with various substances (Lessenger and Roper 224). Hair. Human hair is considered a better sample for drug testing compared to urine due to the following advantages: (1) low risk of spreading disease; (2) ease of storage and transport; and (3) low possibility of sample tampering or adulteration. As hair grows, traces of drugs in a person’s bloodstream may become incorporated into the hair strand. Since hair grows at an average of 0.5 inches per month, a three-inch strand of hair may reveal a person’s drug history for the past six months. Hair samples also undergo immunoassay tests and GC-MS (Newel 33-34). Laws and regulation behind drug testing Drug testing limitations in the United States primarily depends on whether or not the employee in question works for the public or private sector. Employees working for federal, state, and local government agencies are protected under the provisions set by the federal constitution. This also includes employees from the private sector working for organizations subject to federal regulations. On the other hand, employees of privately-owned companies and organizations do not enjoy federal law protection. However, some states have laws that govern on issues regarding drug testing (International Labor Organization 319). Federal laws. The Fourth Amendment to the Federal Constitution protects public employees from unreasonable searches and seizures by the government. The limitations set forth are applicable to federal, state, and local employees, including those employed by private organizations governed by federal regulations. Two important components in determining the legality of drug testing related actions include the relevance of the action according to the provisions of the Fourth Amendment and the reasonability of such actions (International Labor Organization 320). The Drug Free Workplace Act of 1988 promotes the creation and maintenance of drug-free workplaces for organizations working with the federal government. In order to ensure that workplaces remain drug free, the act recommends that employers publish and provide a copy of its policy statement to all employees and conduct awareness programs for their benefit. Failure to comply with the provisions of the act entails several penalties such as suspension or termination of contracts (U.S. Department of Labor n. pag.). The Omnibus Transportation Employee Testing Act of 1991 necessitates the need for transportation industry employees in “safety-sensitive” positions to undergo drug testing as part of their employer’s drug-free workplace program (U.S. Department of Labor n. pag). State laws. The following states listed in alphabetical order were identified by Steingold as those which do not have existing drug and alcohol testing laws applicable for private companies / corporations: California, Colorado, Delaware, Kansas, Kentucky, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, South Dakota, Texas, Washington, West Virginia, Wisconsin, Wyoming and the District of Columbia (275). States which have passed laws pertaining to drug testing conducted by private organizations include Connecticut, Florida, Iowa, Maine, Maryland, Minnesota, Mississippi, Montana, Nebraska, Rhode Island, Utah, and Vermont (International Labor Organization 323). In Connecticut, drug testing is allowed for pre-employment, for-cause, post-accident, and rehabilitation purposes. Testing of employees in safety-sensitive positions is also allowed. State legislation include Conn. Gen. Stat. §31-51t et seq passed in 2003, Conn. Gen. Stat. §19a-30 passed in 2003, Conn. Gen. Stat. §31-128a to –128h passed in 2003, Conn. Gen. Stat. §14-261a et seq. passed in 2003, and Conn. Agencies Regs. §19a-36-D29 passed 1996. In Florida, drug testing is not a requirement. However, state agencies that choose to conduct drug tests should abide by the guidelines laid out by the Florida Drug-Free Workplace Act. This is stated in Fla. Stat. Ann. § 112.0455. In Iowa, employers may conduct unannounced drug testing provided that participants are selected from three groups. The first group is composed of all employees in the company. The second group is made up of full-time employees. On the other hand, the third group is composed of employees in safety-sensitive positions. Employees are exempted from testing when they are included in a collective bargaining agreement, on a rest day, on sick or annual leave, in training, or excused from work in accordance to company policy before the testing announcement was made. (U.S. Department of Labor, n. pag.). Drug testing may be performed for pre-employment and post-accident purposes. Urine testing is the norm. However, blood testing may be allowed in rare occasions. On the other hand, hair testing is not permitted.  Drug testing policies in Iowa is mapped out in Chapter 730.5 of the Code of Iowa (Iowa Workforce Development, n. pag.). In Maine, drug testing is permitted only on grounds of probable cause. Pre-employment drug testing is allowed and hiring may be based on test results. (International Labor Organization 323). Furthermore, employers who wish to embark on a drug abuse program must first secure approval from the Maine Department of Labor based on Maine Rev. Stat. Ann. Tit. 26, 681-690 (U.S. Department of Labor, n. pag.). In Maryland, Md. Regs. Code tit. 10 10.10.01 to 10.10.09 passed in 2001 & 2002, allows drug testing to be performed as long as it follows the technical specification stated in the aforementioned regulations. In addition, Md. HealthGen. Code Ann. §17-214 to 17-217 states that all drug tests must only be performed on laboratories approved by the Maryland Department of Health and Mental Hygeine (U.S. Department of Labor, n. pag.). The Minnesota Stat. Ann. §363A.03 allows employers to perform random drug tests on its employees provided that the participants belong to safety-sensitive positions or hired as professional athletes. If professional athletes belong to a collective bargaining agreement, drug testing can only proceed according to the provisions of the agreement. Furthermore, inquiries regarding an employee’s access and use of medication use can only be performed if an employee is tested positive (U.S. Department of Labor, n. pag.). The state of Mississippi permits all types of drug testing subject to specific guidelines regarding how the tests are conducted (U.S. Department of Labor, n. pag.). Nevertheless, the state maintains that the decision to follow state regulations on testing should be voluntary (Steingold and Schroeder 280). The state of Montana permits employers to conduct drug testing for safety-sensitive employees. On the other hand, employers who wish to test employees holding non-safety-sensitive position are still bound by Mont. Code Ann. §§ 39-2-205 to 39-2-211 to comply with state procedural guidelines (Notestine 583). Employer rights and responsibility Employer rights pertaining to drug testing vary across states. It may not be possible to provide comprehensive for the rest of the 33 states. The following discussion will be limited to states which have drug-free workplace program for private employment in place. In Alabama, drug testing is mandatory upon conditional offer of employment and for all newly hired employees, but advertisement for job vacancies should disclose the drug test requirement. Random drug testing is allowed. Testing is justified after an accident which resulted in lost of productivity or upon reasonable suspicion. Documentation must be provided and eventually furnished upon employee request. Whereas in Alaska, employers are permitted to perform drug testing for job-related purposes, to sustain productivity and safety, to shed light on an accident investigation and upon reasonable suspicion. Employer rights and responsibility in Arkansas are practically the same with Alabama and Arizona (Steingold 275, 276). Employer rights and responsibility in Arkansas are practically the same with Alabama and Arizona, although testing may also be carried out in Arkansas in conjunction with routine medical fitness exam and as a follow through on a required rehabilitation program. In Connecticut and Florida, applicants should be informed about drug testing as a precondition of employment. For an employee, drug testing is valid on grounds of reasonable suspicion, authorization by federal law, for dangerous and safe-sensitive positions or in connection with an employee assistance program. Employers in Florida perform drug tests on conditions similar with Arkansas, except that in Florida drug testing is not mandatory after an accident which resulted to injuries (Steingold 276). In the state of Georgia, employers may conduct drug testing based on reasonable suspicion, post-accident purposes, and as a component of a drug rehabilitation program. Employers are required to publish and disseminate its drug testing policy to employees, including information regarding possible consequences for non-compliance or receiving a positive test result (Steingold 277). The state of Maine prohibits employers from using drug test consent forms as a method of avoiding liability or obligations to the state. Also, all drug-testing policies must be supported by an approval from the Maine Department of Labor and copies should be provided to all employees 30 days prior to implementation (Steingold 278-279). Employers with more than 20 employees are required to set up an employee assistance program wherein employees found positive of drug abuse are permitted to undergo a 6-month rehabilitation program before any disciplinary action is to be performed (International Labor Organization 323). In Maryland, employers may only conduct drug testing for pre-employment and legitimate business purposes only. Meanwhile, Minnesota employers are not allowed to discharge an employee based on a first-time positive result. An employee found to be positive of drugs for the first time must be provided an option for rehabilitation. Furthermore, applicants are required to submit to drug testing only after they received a job offer and provided with a written copy of the testing policy (Steingold 279). Mississippi law dictates that compliant employers are entitled to protection from civil liability in relation to drug tests. However, employers who opt not to abide with state guidelines are still bound by principles of contract and common law (U.S. Department of Labor, n. pag.). Montana state law makes it mandatory for employers to formulate and publish their own drug testing policy. Copies are to be provided to affected employees 60 days before the policy becomes active (Notestine 583). In the state of Nebraska, employers may apply disciplinary action (up to termination) of an employee on the grounds of a positive drug test, refusal to be tested, or adulteration of test specimen (U.S. Department of Labor, n. pag.). Employee rights Employee rights with respect to drug testing also vary across states. In Alabama, a written notice of the company drug policy should be distributed to all employees. Such policy should inform about the consequences of refusing to take the test or testing positive for drugs. An 60-day advance written advise should also be given before the testing scheme is implemented. Alaska has practically the same requirements, except the advance notice is only 30 days. In Arizona, employees have the right to explain positive results and this stipulation is part of the official policy on drug testing (Steingold 275). In Arkansas, a single unverified positive test result should not preclude an employee from being fired or be a basis for sanction in the case of a regular / full-time employee. After the result is verified by a medical officer, an applicant / employee is allowed a maximum of five days to either challenge or explain the drug test result. Employee rights in Florida are practically the same as in Alabama (Steingold 276, 277). In Connecticut, employees cannot be subject to any form of disciplinary action (up to termination) if they have initially tested positive on a drug test. Verification of the initial test should be done through confirmatory testing. Georgia state law provides an employee a window of 5 days to provide an explanation or challenge the results of a drug test.  Employees from the state of Idaho may request to undergo another test within 7 working days upon receipt of a positive drug test result. Employees are protected from disciplinary action based on an initial positive result. Therefore, a confirmatory test should be performed. In case the confirmatory test indicates a negative result, the employer shoulders the cost. On the other hand, a positive result on the confirmatory test would mean that the employee will pay for the test and face disciplinary action (Steingold 277). The state of Maine allows employees to provide an explanation or challenge the results of a drug test within 3 days of receiving the results. Employees who are tested positive have the right to undergo rehabilitation for 6 months and should be reinstated to their positions with full compensation and restoration of benefits. In Maryland, employees who receive a positive drug test result are entitled to receive a copy of the following documents: test results, employer’s drug policy, written notice of disciplinary action, and statement affirming the employee’s right for confirmatory testing, provided that the employee will shoulder the costs (Steingold 278-279). Confidentiality. Even when there is a popular outcry that a corporate policy, like mandatory drug testing, imposes a constraint on personal freedom, such curtailment should be given reasonable justification and consent should be obtained before policy enforcement (Cheng and Henry 193). This is the rationale behind the need for employers to include its drug testing policy as early as advertisement for vacant positions are posted in any media. The same underlying principle also explains the need for employers to disclose the company drug testing policy to applicants before they are hired. It is, indeed, a common position among experts that drug testing (as well as alcohol testing) comprises an invasion of personal privacy, and grounded on this premise, results should be treated under the strictest conditions of confidentiality. Hence, any occasion that the right of confidentiality is breach on the part or in behalf of the employer, are grounds for the imposition of sanctions against the employer (Cheng and Henry 193). The following guidelines are recommended by the International Labor Office to guarantee the confidentiality of drug test results in order to safeguard the privacy of employees: (1) employee anonymity should be protected; (2) documents pertaining to the drug test should be kept in secure storage; (3) separate employee authorization for the release of the results should be obtained before release of drug test results, and these results should indicate the substances tested during the test; (4) disclosure of drug test results to a third party should only be made with an authorization from the employee; (5) each intended recipient of the drug test result should be given separate authorizations (6) authorizations given pertaining to items (3) (4) and (5) should be made in the presence of witnesses; and (7) confidentiality policies pertaining to the drug testing program should be made known to all concerned parties (International Labor Office 84). A world without workplace drug testing Since 1992, the total death toll from workplace violence reached 11,600 deaths, with the top cause of such deaths attributed to homicide. The irony, however, is that seven out of 10 US companies still do not have plans to counteract workplace violence (Evans n. pag.). The aforestated figures happened in an American setting where only 17 states do not have specific legislations in place for private workplace drug testing. Then here is Maryland, where a drug testing policy is in place and all employers are mandated to comply. A doctor and a patient were gunned down at the John Hopkins Hospital in September of 2010. While hospital authorities consider this workplace incident as “exceedingly rare”, it can not, however, be denied that similar assaults on health care workers are fourfold those of other workplaces (John Hopkins Medical Institutions n. pag.). The Addiction Professional Website cited the recent workplace violence concerning the shooting of Alabama professors by a fellow faculty, and the software developer in Texas are issues which can not be taken for granted. In this regard, interventions for substance abuse disorders are being eyed by SAMSHA administrator, Pamela Hyde, as catalyzers for secure and productivity-conducive work environments (n. pag.). The foregoing accounts are real life scenarios describing the perils of workplace violence in spite of drug testing policies in position in most states. It should be an extremely dreadful thought to imagine a world without workplace drug testing. Factual accounts from the Healthier You Website describe the workplace marred by employee use of drugs as less effective, violence-prone and tend to increase the risk of intimidating behavior (n. pag.). Without sounding paranoid and frightening, a quote from Chicago lawyer Kathryn Hartrick states that “workplace violence is becoming more widespread across a broader range of companies and not-for-profit organizations” (Sutcliffe n. pag.). And one of the three main ingredients to the aforementioned development is the substance abuse problem. If drug testing is taken away from the scenario, it is not a remote possibility that the statistical figures which will be presented in the next section will inflate to much alarming proportions. Workplace safety is everyone’s concern. All measures leading to security in our own workplaces should not be hindered by our own personal misgivings against drug testing. A drug testing policy will assist management in identifying employees at risk of committing workplace violence and will offer better chances for drug users to obtain treatment or interventions towards a better quality of life. It would be to the detriment of any employee to want to live in a world without drug testing. Statistical data Witness Justice compiled the following workplace-violence related statistics: (1) the workplace the setting of about 18 percent of violent crime; (2) workers fall victims to violent workplace crimes 1.7 million times on the average each year; (3) only a quarter of race and sexual assaults perpetrated in the workplace are reported to police authorities (n. pag.). Some 73.8% of full-time workers who use illicit drugs came from only seven industries, namely: accommodation and food services (16.9%); construction (13.7%); arts, entertainment, and recreation (11.6%); information (11.3%); management of companies and enterprises, administrative support, waste management, and remediation services (10.9%); retail trade (9.4%); and other services, except public administration (8.8%) (SAMSHA n. pag.). On the other hand, the rest of the 26.2% are distributed among the following industries: wholesale trade (8.5%); professional scientific, and technical services (8.0%); real estate and leasing (7.5%); mining (7.3%); finance and insurance (6.8%); manufacturing (6.5%);transportation and warehousing (6.2%); agriculture, forestry, fishing, and hunting (6.2%); health care and social assistance (6.1%); public administration (4.1%); educational services (4.0%); and utilities (3.8%). Case studies. An investigation of the relationship between workplace drug testing and drug use among workers revealed that workplaces with drug testing policy tend to report lower use of marijuana among its employees when data on worker and job characteristics are controlled. Results suggest that frequency of testing and gravity of sanctions are factors which positively affect the likelihood of drug use among employees (Carpenter 127). A longitudinal research revealed differences between laboratory findings on positive drug test results and self reports of drug use, with the former decreasing by 66 percent, and the latter increasing by 30%. The discrepancy was explained in terms of the efficacy of the various drug testing methods used (Walsh 120). The results point towards standardization of drug testing methodology, either in the state or federal level Meanwhile, in a study conducted among truckers in the US who underwent drug testing, results showed from 9 to 10 per cent decrease in deaths from truck accidents. Finding also revealed that the cost of financing the drug testing program was outweighed the social benefits of the program (Jacobson 131). Clinical studies. Results of the following studies may offer significant strides in the planning of medical interventions for drug users in the workplace. Using the method liquid chromatography/ atmospheric pressure chemical ionization / tandem mass spectrometry (LC/APCI-MS/MS), Dams, Murphy, Lambert and Huestis achieved simultaneous quantitative analysis of the presence of opioids, cocaine and metabolites in the urine without the need for sample preparation. Use of this method showed ample sensitivity and validation, and decreased the amount of time required for analyzing the sample. The method can, thus, be applied in the conduct of further clinical research on illicit drug use and compliance with the methadone treatment (1665). On the other hand, Niedbala, et al. embarked on two researched studies to examine if passive exposure to cannabis smoke in a motor vehicle would generate a positive outcome for Δ9-tetrahydrocannabinol (THC) in oral fluid. The studies demonstrated that the oral fluid specimens sourced from active smokers exceeded the peak THC concentrations of passive subject to as much as 100 times. Positive oral fluid results were recorded among active smokers from 0 to 8 hours. Urine analysis verified the oral fluid results. The findings suggest that elimination of a positive test for THC is possible by collecting the sample without THC smoke (607) Meanwhile, Montoya, et al. examined the efficacy of buprenorphine as an intervention for the parallel dependence on cocaine and opium. The study showed that subjects treated with the highest does of buprenorphine were those who exhibited associated decreases in morphine and benzoylecgonine concentrations in the urine. Grounded on the findings, it was recommended that daily 16 mg. of buprenorphine taken sublingual is well tolerated by subjects being treated for concomitant opiate and cocaine use (34).   References Addiction Professional. EAPs can help businesses address substance abuse, says The Coalition. 26 Feb. 2010. Web. 17 Feb. 2011. 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Web. 16 Feb. 2011. Wong, Raphael and Tse, Harley Y. Drugs of Abuse: Body Fluid Testing. Totowa, NJ: Human Press, 2005. Print. Read More