Random drug testing is ‘grievous and oppressive’

Sunday, January 5th, 2014

Drug testing is becoming an increasingly common phenomenon in the UK, and is gaining popularity both in workplaces and criminal justice systems. Agreeing to random drug tests is often a contractual requirement – no drug tests, no job – and refusal to provide a specimen is considered tantamount to a positive result by Police, social workers and employers.

It is therefore extremely interesting to hear that this week, in Florida, a Supreme Court has ruled that in all but exceptional circumstances, drug testing without justifiable suspicion of drug use is unlawful, and is only legal if it protects public safety.

The ruling was made in relation those in receipt of state benefits for childcare, so, whilst not directly transferable to our own systems, it may have future relevance – given that drug testing benefit claimants in the UK has already been mentioned in the Government’s recent poor-bashing campaign (scapegoating benefit claimants for bankers’ fuck-ups), and is only one step further than setting Jobcentre staff targets to stop payments, and making systems inaccessible so as to exclude more vulnerable recipients.

But the reasons for the ruling are very relevant here in the UK. In the first part, political attempts to align the poor with illegal drug use were thwarted when the court case revealed that only 2.6% of child benefit recipients tested had provided a positive sample. This percentage of illicit drug use was lower than in the general population.

Even more poignant were the legal challenges to random drug testing brought forward by the case, which was filed by a Navy veteran-turned-student whilst single-handedly caring for a disabled mother and young son. He refused a drugs test given there was no reasonable suspicion of drug use, and as a result had his claim for public assistance turned down. He won the case on the grounds that random drug testing is “unconstitutional”.

The judge deemed mandatory random testing outside the law because, under the Fourth Amendment of US Constitution, drug tests are classed as a search, and as such can only take place in response to suspicion that a crime has been committed. This law was introduced in 1700s when British search warrants enabled the colonists to enter and seize property at will. Fury at this lawful breach of human rights was thought to have started the Amercian Revolution. The resulting Declaration of Rights clearly stated that any searches on a person “whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted”.

How incredibly refreshing. Especially at a time when, in the UK, choices we make outside of work, which have no impact on our professional functioning, can mean we lose our jobs; or when a substance we used days ago, which has no effect on our ability to drive safely now, can mean we lose our driving license. Cannabis, a drug with a very weak relationship to social harm which is now legal in parts of America, can show up in urine tests for up to four weeks. Yet what, over such timescales, is the relationship to reduced ability or function, either in the workplace or behind the wheel?

I am sure that, forty years ago, employers felt that had a right to know the sexuality of their employees. Their choice not to employ homosexuals would have been supported by the authorities, despite this lifestyle choice having no impact on their professional capacity or any relevance in the workplace.

I hope this week’s ruling is the start of a thought revolution on the issue of drug use. What a person chooses to do behind closed doors should be private, unless this choice poses a risk to the other people. So in the case of drug use, unless an employer can evidence reduced productivity or increased risk as a result of suspected substance use, drug tests should not be carried out. Most employers condone, even support, the use of alcohol outside of work, despite use of this substance being well-documented to increase risk when operating machinery – the difference in the handling of the use of other drugs outside of work can therefore not be justifiably linked to risk.

This case is a reminder that we have human rights, a fact which seems to have been lost in this country where drug use is concerned. It is possession, not use, of a drug that is illegal. We cannot be arrested for having a drug in our system – yet we can lose our livelihood, without putting a foot wrong. That certainly strikes me as grievous and oppressive.

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4 comments on “Random drug testing is ‘grievous and oppressive’

  1. RR says:

    Please note this blog response is for a business ethics assignment

    It is clear to see that drug testing in the work place is more common and prominent; this is a reflection of the growing availability and variety of drugs and the views of creating clean societies and clean safe work places. In the business world there are many candidates that apply for the same role, so it is reasonable to understand that an employer would want to select the best candidate who will preform the task to the top level of productivity in a safe manner for themselves and others. This is indeed the need for pre employment drug testing which you have considered ‘tantamount’ , and that the refusal of a test is refusal of a job. This is not necessarily the case as business’s will have processes in place if a refusal does happen, employers would act fairly to reach a conclusion for both parties, it does not necessarily mean a loss of a job. In order for a Business to function it does require employees who will work to their top level of productivity and to ensure fair conduct there is contract between employees and employers, which is based upon consideration. A business’s purpose is to make a profit – so if productivity is lacking due to drug use, employers would look to eliminate this obstacle.

    Regarding the Florida law that drug testing is unlawful and only legal to protect public safety – it seems ludicrous in cases to do something after the fact, that contradicts public safety of only reacting instead of being proactive to allow drug tests prior which would be protecting the public from future events.

    To your point of the legality of random drug testing – this can be seen as a strong point for an employee if it was not agreed contractually. If employees are aware of a drug test coming up, of course they will come off the drug to allow it out of their system or have time to stage plans with synthetic urine. A random test allows for true culprits of the offense to not be deceptive and dishonest toward their employer. If an employee were ‘clean’ why would they have anything to hide?

    Sometimes our choices made outside of work do impact our professional functioning in which you claim do not. This is where professional and personal integrity can play a part. A persons job could be responsible for many peoples lives and something you do outside of work such as drugs can affect your system long after they are taken, and can lead to impairments and inability to react and preform at the necessary level. This can be seen in a factual and fictional example. For the factual example, in New Zealand in 2012 a tragic accident occurred involving a hot air balloon crash that resulted in the deaths of all 10 lives onboard. Investigations took place after the fact which showed the pilot has THC from cannabis in his system, and this could have affected his level of judgment when the balloon came into strive and ended with a collision of electrical lines. The example the fictional story is from the 2012 movie ‘Flight’, a well-seasoned pilot is respected in his industry, he partakes in drug use and drinking the night before a long haul flight, which has technical issues. This pilot made a crash-landing, which killed 6, and it was recognized that if any other pilot had landed it could have resulted in more deaths. However due to procedures within the workplace he was found to have had drugs and alcohol in his blood and was highly criticized. This pilot argued the fact that these narcotics in his system did not impair his abilities or his judgment, but nonetheless he breached his professional integrity to keep his passengers safety paramount, along with a breach in his contract. In both cases it seems personal recreation was seen as the priority, blurring from professional integrity, even though the partaking of drugs was outside of working hours. Why should employers have their business’s reputation, accumulate costs from accidents, deaths, and costing’s from loss productivity all for the sake of an employee wanting to get a ‘high.’

    You mention that marijuana is in the system for up to 4 weeks and question as to what is the relationship of reduced ability over time? Have you not heard of drug-induced psychosis? Although drug testing may not measure precise present day performance an indication can be taken.
    How can a workplace be criticized for implementing drug testing in the workplace, because at the end of the day a business, which is to make a profit can only do so by having workers that work to their full potential and not ones that work below due to drug taking.

    You go to mention that a person’s choice behind closed doors such as drug use has no relevance in the workplace unless it will pose a risk as a result. This is the exact point why drug testing is in place, to eliminate such issues, to be proactive and remove someone prior to having a mistake or accident take place opposed to dealing with it after the fact. Under the 1992 Health and Safety Act, employers must take practical steps to provide a safe workplace for their employees and this is one process in which they can act this out.

    Implementing drug testing in the work place should not be seen as a breach of human rights or privacy or necessarily unethical, this is not an issue of trust and only targeted at low range roles but across the board from CEO’s to back store workers, this is just another step in the process of running an effective, efficient and safe business. This process is to allow safety precautions, and bring in preventative measures. The ethics of drug testing in the work place can be covered across different ethical viewpoints.

    Bibliography
    Can drug testing make employees more productive? (n.d.). Retrieved from Indie Silver Marketing: http://blog.indiesilver.com/2013/12/can-drug-testing-make-employees-more.html
    Drug testing promotes workplace saftey. (n.d.). Retrieved from Occupational Work and Saftey: http://ohsonline.com/Articles/2012/10/01/Drug-Testing-Promotes-Workplace-Sagety.aspx
    Reuters, T. (n.d.). Work place drug and alcohol testing. Retrieved 2013, from Find Law NZ: http://findlaw.co.nz/articles/4308/workplace-drug-and-alcohol-testing.aspx
    Scholes, V. (2013). The Open Polytechnic of New Zealand. Lower Hutt: The Open Polytechnic of New Zealand.
    Zemeckis, R. (Director). (2012). Flight [Motion Picture].

    • Hi RR, thanks for such a comprehensive answer. I am really glad to have someone studying Business Ethics reading my blog, as these are exactly the type of issues I am eager to discuss.

      Where I feel that we fundamentally disagree is that, for me, substance use is not an ethical issue. If we compare illegal substances (although if, as I gather, you are based in New Zealand, many substances may not remain illegal for long!) with a sociably-acceptable drug such as alcohol, the discrepancy between how substances are treated under the law and ethical code make no sense. No-one would judge a person, say they were ‘bad’ or ‘unfit for work’, if they went to work with alcohol in their system from the night before. A group of colleagues might well leave work together and go to the pub. They might even joke, on returning to work the next day, about having a hangover, feeling rough, not being in a fit state to be at work, and I have even worked in organisations where people have been excused from their duties with a nod and a wink because it was accepted that their alcohol use had impaired their ability to meet their employment requirements to such a degree that they were unable to function professionally. I feel this attitude is more prominent, in the UK at least, in the private sector than the public, as alcohol use is seen as ‘hospitality’ and normalised as part of the job. I even know of companies who serve alcohol in the office on Friday afternoons.

      Compare this to the treatment of illicit substances, where employers are given not only the right to cease employment due to drug use, but have the right to probe into a person’s private life without there being any indication of reduced professional function. It is extremely well-documented that the drug which causes most social harm, most physical harm and most accidents is alcohol – yet this is deemed acceptable, whilst the use of other substances is deemed a sackable offence. Can you explain to me, in your understanding, the logic on which this decision-making is based?

      It appears to me that the reasoning is portrayed as moral – yet it meets none of the criteria of an ethical argument.

      The alcohol industry has, for hundreds of years in the Western world, been very wealthy. There is a vested interest in many countries to keep it so. Therefore the laws that have been created maintain and support this belief system. (You may want to read my blog on alcohol where I realised this http://wp.me/p2RWJ5-T8 or one where I look at Ireland’s attitude to alcohol compared to its smoking policy. http://wp.me/p2RWJ5-Tg )

      The laws that rule drug and alcohol policy are not based on research or risk of harm – if the classification system was developed according to level of physical, financial or social harm, the drug most likely to be made illegal would be alcohol. In the same way, if all drugs were taken at face value the drug most likely to be banned in the workplace would be alcohol, as this is the most dangerous to use whilst driving or operating machinery. Therefore, in terms of risk, the division of alcohol from other substances is arbitrary. It represents the social power structures that exist and not, as you seem to suppose, risk.

      There is nothing immoral, in the true sense of the word (which I am sure you understand given that it is in the title of your course), in choosing to take a substance that affects only you, and has no negative impact on another person or object. Morality only comes into play when using that substance begins to impact on another person. In the case of a workplace, should you choose to use a substance and this subsequently puts the safety of others at jeapordy, this becomes a moral issue. As with alcohol use, when a substance is used responsibly, outside of work time, and in a way that it does not impact on professional function (for example, smoking cannabis on a Friday night), there is no justification at all for this to be considered immoral. (Again, you may want to look back at a blog I wrote when I started to realise this. http://wp.me/p2RWJ5-51 )

      Your use of the word ‘clean’ makes me wonder if you consider illegal drug use to be dirty. You also seem to believe that someone who chooses to use drugs privately could never be the ‘best candidate’ for a job. I agree that businesses need ’employees who will work to their top level of productivity’ – but why do you associate this with having no use of recreational drug use? It feels to me that these statements are judgements, based on the moral presupposition that drug use is bad, and the people who use drugs are somehow inferior or less able to function than those that don’t. Of course, if someone is using substances problematically, this is likely to impair function – but that is also true of alcohol, or prescribed medication, yet these more sociably-acceptable forms of drug use are not perceived as relating to a person’s ability to be good at their job.

      I also wonder, do you not take the legal and sociably-acceptable drug caffeine? In the 1980s, the World Health Organisation advised that this substance should be made illegal. The reason for this recommendation was due to impaired function, due to the massive numbers of people presenting with anxiety problems, insomnia, headaches and a range of other health issues as a result of overuse. All drugs have the potential for misuse – but most of them also have the potential to be used for mild stimulation or relaxation without negative side-effects. I would like you, in light of this, to reconsider your stance that workers who take drugs are not able to work to their full potential, when the opposite may in fact be true.

      Your mention of drug-induced psychosis and your defence to the fictional film ‘Flight’ do make me question your knowledge-base and the clarity of your argument here. Drug-induced psychosis is a phenomenon, albeit rare, but of course once someone has crossed that boundary then we are into the realms of significant mental health problems – which certainly impact on professional function and need to be dealt with under health and safety procedures. Referencing a Hollywood film indicates to me that your opinions have been influenced by mainstream media. I would recommend that you steer clear of this, especially in academic documents, as this line of evidence is pretty much guaranteed to prove insufficient and somewhat ill-advised. (I am happy to speak to you about this via email but feel it is less relevant to this discussion.)

      I also wonder what ‘future events’ you feel Florida would be protecting the public from by drug testing benefit claimants? Again, I get the impression that you have misconstrued the use of drugs to represent something morally wrong and socially destructive. I have to say, in many years of working in the field, that this has not been my experience. Problematic and seriously addicted substance users may certainly display behaviours that are primarily self-destructive but which may also impact on their friends and families and sometimes the public. But, on the whole, most people who use substances do so quietly, harmlessly, and without posing a significant risk to anyone.

      I very much appreciate your response, and wonder whether you feel the same about the issue in light of our discussion? I know, for me, that many years working in the drugs field gave me one set of opinions, but the reading and moral reasoning I have done on drug policy over the last eighteen months has given me a very different perspective on the rules we have around substance use. Yes, there is heavy-end, problematic drug use, and, especially in the workplace, this needs to be dealt with effectively, for the welfare of the business and its employees. However, the majority of drug use does not fit this category, and, as such, if workplaces want to ban and police against drug use, they should be prepared to adopt the same of reasoning for use of alcohol and prescribed medication. The current dichotomy is arbitrary, and I believe we need a very different system in place if we are to make workplaces safer.

      Please let me know your opinions on what we have discussed, and I would encourage you to share this blog with other people on your course if you feel they too would be interested in the subject matter and wanting to engage in such discussions. Good speaking to you, RR, and I hope you do well in your assignment.

  2. Juicy Jolz says:

    (Please note this blog response is for a business ethics assignment.)

    In your final paragraph you noted that “if workplaces want to ban and police against drug use, they should be prepared to adopt the same reasoning for use of alcohol and prescribed medication. The current dichotomy is arbitrary, and I believe we need a very different system in place if we are to make workplaces safer.” (Random drug testing is ‘grievous and oppressive’, 2014)

    In New Zealand a hazard can be resulting from “physical or mental fatigue, drugs, alcohol, traumatic shock, or another temporary condition that affects a person’s behaviour.” (Health and Safety in Employment Act 1992, 2015) This legislation recognises that there is no difference between alcohol, drugs, prescribed medication, even tiredness and highlights the importance of legislation being comprehensive and not arbitrary. The point you raise is worthy of consideration and lobbying for change may be an achievable solution to creating safer workplaces in your country.

    Drug testing has been proposed to address safety issues in the workplace. (Scholes, Drug Testing in the Workplace, 2015) However it has been open to ethical concerns to a person’s privacy. According to Desjardin and Duska four conditions should be met to justify drug testing employees:

    1. “There must be a clear and present potential for harm. This must be justified by reference to both the type of job and the record of the person doing the job.
    2. The drugs tested for must be only those drugs whose use is potentially harmful in that job.
    3. Employers must work with employees to develop testing methods that are fair to both parties.
    4. Drug testing must be the most efficient means of producing harm-preventing information.” (Desjardins, 1987)

    You stated that “No-one would judge a person, say they were ‘bad’ or ‘unfit for work’, if they went to work with alcohol in their system from the night before.” I reject that, if I worked in a team where safety was paramount due to the type of job being undertaken and I was aware that someone was hungover, I would make it clear to a supervisor that they were unfit for work or unwell. Thus avoiding the potential for harm. Light duties may be the order or a sick day to recover. Contrast that to an office worker where someone having a hangover may not necessarily present a danger or potential risk to others in the office. They might be annoying to the office staff for the day, but as mentioned in point one, it is the type of job and the potential for harm that should be the reason for drug testing. An office worker may not pose a potential for harm and employers would not benefit from a random or regular drug testing regime for these types of positions.

    People worry that drug testing gives information about things that don’t relate in any way to a person’s job and that it should be of no consequence to them. What people do in the privacy of their own homes is – private. If you are being treated for a medical issue where the use of a legal or prescription drug is required – this is private information not required by a workplace. Point two above notes that only tests can be done for those drugs whose use is potentially harmful in that job. It is important to have input from both parties about what drugs are considered appropriate for testing.

    Point three mentions that employers must work with employees to develop fair testing methods. This could be by way of a Health & Safety Committee perhaps. If both parties are well aware of the testing methods and have a say in what constitutes criteria for continued support after a positive drug test or alternatively grounds for dismissal, then each can hold the other to account. It is not in an employer’s best interest to have a high turnover of staff, as this creates an unstable workforce which can be costly. I believe this is a fair and ethical solution to your concern that “employers are given not only the right to cease employment due to drug use etc”. The view of Kantian ethics is that people should be shown respect as rational and autonomous beings. (Scholes, Respecting informed consent, 2015) It allows freedom for adults to make up their minds about how they wish their lives to be. So, as long as an employee is aware that a drug testing regime is in place, they can make informed decisions about what they consider is their priority. It is important that employers and employees take Health & Safety seriously to create policies that balance safety and rights.

    You say that “most people who use substances do so quietly, harmlessly, and without posing a significant risk to anyone.” I think this is a generalisation and even if people think their own substance use is harmless, this is not necessarily true. I can cite a Hot Air Balloon accident in 2012 in which all 11 lives were lost. The pilot was one of those who you could say used substances quietly and harmlessly, however the potential for harm here is evident as 11 people paid the ultimate price. Their lives. Harmless? More like devastating for the friends and family of all those who perished.

    Testing employees for drugs and alcohol is becoming commonplace in New Zealand, it does take note of the ethics involved and attempts to allow for the freedoms we enjoy. My post may highlight differences between our countries and its laws and policies etc. However, the ethical reasons for drug testing I believe are sound for employers and employees. They could be used to stress that the current dichotomy you talk of is indeed arbitrary and the different system you seek can be found in both the ethics and a review of the workplace laws to make workplaces safer. At the end of a hard working day, the important thing is that we should all be able to return home safe and sound.

    References
    Desjardins, J. &. (1987). Drug testing in employment. Business & Professional Ethics Journal, 3–21.
    Health and Safety in Employment Act 1992. (2015, May 2). Retrieved from New Zealand Legislation: http://legislation.govt.nz/act/public/1992/0096/latest/DLM278835.html
    Random drug testing is ‘grievous and oppressive’. (2014, January 5). Retrieved from From drugs worker to writer: http://drugsworkertowriter.com
    Scholes, V. (2015, May 3). Drug Testing in the Workplace. Retrieved from The Open Polytechnic of New Zealand: https://openpolytechnic.iqualify.com/course/-Jc1KRUcnRDSSugYaT-h/p105
    Scholes, V. (2015, May 3). Respecting informed consent. Retrieved from Open Polytechnic of New Zealand: https://openpolytechnic.iqualify.com/course/-Jc1KRUcnRDSSugYaT-h/p65

    • Thank you so much for your well-considered response. I admit I have been largely out-of-action for some time for personal reasons, and your comments have inspired me (aka given me a kick up the arse).

      It sounds as though our countries have very different approaches to drug testing. My fears, on writing the above article, came from working with drug users over many years, over which time the UK moved towards the American model of workplace drug testing. The majority of harmless use I talk about is people primarily smoking cannabis, which stays in the bloodstream for up to four weeks, or using substances recreationally at the weekends.

      The issue I have seen, increasingly, is that, where there may be reduced productivity or lateness in the workplace, instead of raising or addressing this with the member of staff, the first port of call is a drugs test. This is undertaken without forethought, or reference to any guidance as outlined in your response. Applying this technique so flippantly removes the context and meaning of the person’s existence and choices, and it gives a bland, dichotomous answer. And what happens next? The opportunity to perceive the whole person, to understand them and their humanity, is lost.

      In my experience, it can be a very damaging practice, and one which relates to treating your workforce as disposable drones, rather than complete human beings – with needs, relationships, families, finances, bereavements and so on. We all experience things in our lives which affect our workplace productivity. For the response from an employer to be – I’m going to treat you with suspicion and distrust – to me is symptomatic of a shift from employees being valued in their workplace to being treated like inanimate objects.

      And once that drug test is carried out, what next? Who will have a genuine conversation with an employer who has taken such a punitive line? And even if a positive sample is gained, what does this mean in the context of the employee’s life, and how does it actually relate to the workplace?

      I am going to look at all the documents you referenced, as I feel they may offer a more rounded way of implementing drug testing. Please understand I would never advocate for substance use in a workplace which increases risk – my objection is about the misuse of the drug testing procedure and the increasing tendency of employers within the UK to treat drug testing as the HR holy grail.

      Thanks again, and good luck with our business ethics course.

      DWTW

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