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.