Drug Testing

Drug testing of employees is legally mandated in some occupations; corporations may also require that employees undergo drug testing before employment, at periodic intervals, or after an accident or incident. The usual drug test consists of supplying a sample of urine which is then analyzed in-house or by a commercial laboratory for specified drugs (e.g., marijuana, amphetamines, cocaine, or some other set; almost never are tests exhaustive of all substances because of cost). Testing of the breath, a salivary sample, or a sample of hair are alternatives. Blood tests are almost never used in employee drug tests unless a medical situation has arisen. Drug testing is undertaken and justified for safety reasons. The practice is rarely popular because it is intrusive; opponents also charge that drug testing violates fundamental individual rights and can have a corrosive effect on workplace morale.

FEDERAL DRUG TESTING

Testing of transportation workers was mandated by The Omnibus Transportation Employee Testing Act of 1991. According to the Department of Transportation's Web site, the act "requires drug and alcohol testing of safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines and other transportation industries." DOT states that roughly 12.1 million people are included under the "safety-sensitive" employee definition, but neither the department nor the regulation (49 Code of Federal Regulations, Part 40) actually spell out what that phrase means. It is left to each DOT element regulating the transportation industry to define such individuals. The phrase refers generally to operating and direct supervisory individuals in the transportation industry. Each regulatory agency also publishes separate regulations of how and when it conducts drug and alcohol tests.

Corporate Drug Testing

According to the American Management Association's 2000 survey of testing in the workplace, 47 percent of all companies surveyed conducted drug testing, down from 52 percent of companies in 1991. Testing of new hires was highest in manufacturing companies (78.5 percent conducted tests) and lowest in financial services (35.8 percent conducted tests). Testing of all employees also followed this pattern, with 42.2 percent of manufacturers doing tests but only 18.8 percent of financial services companies doing so in 2000. The Bureau of Labor Statistics had conducted a survey in 1990 but has not conducted such a survey since. In the 1990 survey, BLS had also noted a decline in drug testing.

DRUG USE PATTERNS IN THE POPULATION

According to the Office of National Drug Control Policy (ONDCP, a part of the Executive Office of the President), in 1978 31.3 percent of all persons aged 12 and older had used illicit drugs at least once in their lifetime. By 1998 this figure had gradually increased to 35.8 percent. After that year data collection techniques introduced a change so that subsequent years could not be compared to the 1978–1998 period. But the ratio in 1999 was 39.7 percent of all people. It dropped to 38.9 percent in 2000 and climbed to 41.7 percent in 2001.

Based on data published by the Substance Abuse and Mental Health Services Administration (SAMHSA, an element of the U.S. Department of Health and Human Services), around 110 million people aged 12 or older had used illicit drugs during their lifetime in 2004, nearly 35 million had used drugs in the past year, nearly 19 million in the past month. Year-to-year data show some fluctuations but no strong trend. Thus lifetime use increased between 2002 and 2003 (up 1.95 million) but decreased between 2003 and 2004 (down 148,000). The overwhelming majority of these people used marijuana, 88 percent in lifetime, 73 percent in the past year, 76 percent in the past month. The next major use category was non-medical uses of medicines, with painkillers the largest segment of that category.

As reported in Social Trends and Indicators USA, alcohol use was significantly greater than any drug use in the United States. FBI arrest records in 2000, for instance, showed 2.8 million arrests for alcohol-related offenses and 1.6 million arrests for drug-offenses; of these drug offenses 646,000 were arrests for marijuana possession. Around 110,000 deaths annually are related to alcohol use; of these 16,000 are alcohol-related traffic deaths. Total drug-related deaths in 1997, according to ONDCP, were also 16,000.

These data show that 1) a large number of people use or have used drugs, 2) the overwhelmingly dominant drug of choice is marijuana, 3) other forms of drug use are extremely varied, with a very small number only using heroin, and 4) alcohol use produces more arrests and has a higher death toll than drugs.

DRUG TESTING ISSUES

Drug testing may be an appropriate initiative for a small business experiencing problems in its workforce or in order to avoid costly problems in the operation of expensive and sensitive equipment. The business may also, because of contracting regulations, be required to institute such a program. Drug testing may also be a means of lowering insurance costs. Advice in the establishment of such a program is available to the small business through the Substance Abuse and Mental Health Administration which maintains a telephone Helpline at 1-800-967-5752. The main issues to consider in planning such a program are the following:

Legality

Drug testing is legal and implicitly supported at the federal level by the 1998 Drug Free Workplace Act; the act creates a right to work in a drug-free work environment. But drug testing may be regulated at the state level. Researching such regulations should be an early step.

Test Criteria

The most common form of drug test is a urine test, but use of oral fluids and samples of hair are sometimes used. Testing hair can detect drug use some time in the past, but the method is costly. Oral fluid testing is not presently used in federal testing protocols, possibly because it cannot detect the presence of THC after 24 hours; delta-9-tetrahydrocannabinol is an active cannabinoid. Most testing programs focus on a limited number of drugs in order to avoid the high expenses of multiple tests. LSD, for instance, cannot be detected in urine and requires expensive tests. For these reasons, also, conditions of the test need to be established in such a manner that costs can be predicted. The usual times of administration are 1) before hire, 2) randomly throughout the year, 3) following incidents/accidents. The testing plan needs also to define in advance if all employees will be tested or only certain categories of employees, e.g., heavy equipment operators. The cost of tests, including the acquisition of the sample and its analysis by a lab will range from $15 to $60 dollars.

Promulgation

The drug testing program needs to be made a formal part of the company's employment policy and announced so that employees are well aware of the testing program and, above all, how positive results will be handled, before the program is instituted.

The Testing Protocol

The drug testing program must have a well-designed protocol which will define where and how the test samples will be collected, how privacy will be preserved, and where the actual tests will be conducted. Lists of certified laboratories are available from SAMHSA. If testing is initially conducted in-house using commercially available testing kits, it is especially important to have arrangements for passing on non-negative results with samples to certified labs which can do more equipment-intensive testing (gas chromatography, mass spectroscopy).

Physician's Review

An employee may test positive because of his or her use of prescription medications. The availability of a medical review physician to look into such cases should be planned and made part of the total program.

see also Employee Rights

BIBLIOGRAPHY

A 2000 AMA Survey: Workplace Testing: Medical Testing: Summary of Key Findings. American Management Association. 2000.

Cadrain, Diane. "Helping Workers Fool Drug Tests is a Big Business." HRMagazine. August 2005.

Callaghan, Leo G. "Don't Fault Employer for Firing Drug Users." HRMagazine. November 2005.

Cholakis, Peter. "How to Implement a Successful Drug Testing Program." Risk Management. November 2005.

Close, Louise. "Drugs in the Workplace An Issue for Industry." Manufacturers' Monthly. 28 July 2005.

Fletcher, Meg. "Drug-Test Cheats Frustrate Employer Screening Efforts." Business Insurance. 1 August 2005.

Gips, Michael A. "High On the Job: Drug dealers and users are more savvy in workplaces today. Businesses need policies and training to counter these trends." Security Management. February 2006.

Kaplan, Dale. "Do I want to be a SAP?" Addiction Professional. July 2005.

Lazich, Robert, ed. Social Trends and Indicators USA, Vol. IV. Thomson Gale, 2003.

"Mouthing Off for Drug Testing." Security. February 2006.

Office of National Drug Control Policy. "Drug Use Trends: October 2002." Available from http://www.whitehousedrugpolicy.gov/publications/factsht/druguse/index.html. Retrieved on 24 February 2006.

"Six-Step Program." Business Insurance. 1 August 2005.

                                  Hillstrom, Northern Lights

                                   updated by Magee, ECDI

Drug Testing

Sections within this essay:

Background

Testing employees or job applicants for drug or alcohol use invokes a controversial area of policy and law that is still establishing its parameters. No one denies that employee drug and alcohol abuse costs employers billions of dollars each year in decreased productivity, increased liability exposure, and higher workers' compensation insurance premiums. Employers clearly have a substantial and vested interest in not only providing, but also ensuring, a drug-free workplace, for the safety and welfare of both employees and employers.

Controversy enters the picture when employers either ineptly or aggressively impose drug testing in a manner that may violate personal or constitutional rights, such as privacy rights or protections against unlawful searches and seizures. While drug testing is permitted in most states, it is not always mandated. For those employers who implement drug testing programs, it is imperative that the programs follow state and federal guidelines in order to ensure protection of employee rights.

Federal Law

The drug-testing movement began in 1986, when former President Ronald Reagan signed Executive Order 12564, requiring all federal employees to refrain from using illegal drugs, on or off-duty, as a condition of federal employment. Two years later, Congress passed the Drug-Free Workplace Act of 1988. That, in turn, spawned the creation of federal Mandatory Guidelines for Federal Workplace Drug Testing Programs (Section 503 of Public Law 100-71). The mandatory guidelines apply to executive agencies of the federal government, the uniformed services (excepting certain members of the armed forces), and contractors or service providers under contract with the federal government (excepting the postal service and employing units in the judicial and legislative branches).

Although the Act only applies to federal employees, many state and local governments followed suit and adopted similar programs under state laws and drug-free workplace programs.

Constitutional Protections

The U.S. Constitution does not prohibit drug testing of employees. However, in the U.S. Supreme Court case of Treasury Employees v. Von Raab, 489 U.S. 656 (1989), the high court ruled that requiring employees to produce urine samples constituted a "search" within the meaning of the Fourth Amendment to the U.S. Constitution. Therefore, all such testing must meet the "reasonableness" requirement of the Fourth Amendment (which protects citizens against "unreasonable" searches and seizures). The Court also ruled that positive test results could not be used in subsequent criminal prosecutions without the employee's consent.

The other major constitutional issue in employee drug testing involves the Fifth Amendment (made applicable to the states by the Fourteenth Amendment), which prohibits denial of life, liberty, or property without "due process of law." Since the majority of private-sector employees in the United States (excepting mostly union employees) are considered "at-will employees," an employer need not articulate a reason for termination of employment. However, under certain circumstances, the denial of employment or the denial of continued employment based on drug test results may invoke "due process" considerations, such as the validity of the test results, the employee's right to respond, or any required notice to an employee.

Finally, under the same constitutional provisions, persons have a fundamental right to privacy of their person and property. Drug testing, although in itself deemed legal, may be subject to constitutional challenge if testing results are indiscriminately divulged, if procedures for obtaining personal specimens do not respect the privacy rights of the person, or if testing is unnecessarily or excessively imposed.

Key Provisions

Under state and federal drug-free work place programs include the following:

• Both employees and applicants may be tested.
• Tests may be conducted pre-employment,"upon reasonable suspicion" or "for cause," at random, routinely, and/or post treatment or rehabilitation. Random testing involves unannounced, "suspicionless," and/or non-routine testing that may be indiscriminately applied to some, but not all, employees.
• Basic tests screen for amphetamines (speed, meth, ecstasy, crank, etc.), cannabinoids (marijuana, hashish), cocaine (coke or crack), opiates (heroin, morphine, opium, codeine), or phencyclidine (PCP).
• Extended tests might screen for barbiturates, benzodiazepines, ethanol, hallucinogens, inhalants, or anabolic steroids.
• Tests may involve urine samples, saliva tests, hair samples, sweat patches, breathalyzers, or blood tests.

Special Considerations

Mandatory vs. Optional Testing

Under federal law, jobs that involve safety or security functions generally require mandatory drug testing of applicants or employees. The U.S. Department of Transportation adopted revised regulations in August 2001, and other agencies are free to adopt their own internal regulations. Likewise, many states expressly mandate drug testing for similar jobs, for example, jobs in the medical and health related fields, jobs requiring the use of machinery or vehicles, security positions, food handling jobs, or physically demanding jobs such as utilities cable line installation or climbing.

"For Cause" vs. "Random" Testing

Generally, employers are permitted to engage in"for cause" or reasonable-suspicion testing under drug-free workplace programs. State law may limit or prohibit random ("suspicionless") testing of employees unless the job position warrants such an intrusion, such as in "safety sensitive" positions. It is important to remember that private-sector employees do not always enjoy Fourth Amendment rights protecting them against unwarranted or unreasonable searches and seizures (only Fifth amendment rights are extended to the states by the Fourteenth Amendment). Nevertheless, many state constitutions incorporate such rights into their own constitutions, so private sector employees may have the same protections.

Testing Union vs. Non-union Employees

Union employees are protected by the National Labor Relations Act (NLRA), which mandates that private sector employers must bargain collectively over terms and conditions of employment. The NLRA has ruled that drug testing of current employees (but not applicants) is a term or condition of employment. Unionized public sector employers may unilaterally decide to impose drug testing, but must negotiate the procedures (e.g., chain of custody of samples, notice to employees, confidentiality, consequence of positive results, etc.).

Testing Employees vs. Applicants

Since applicants are generally deemed to have a lesser expectation of privacy than current employees, employers enjoy greater freedom to test applicants, without the same concerns being invoked. However, to contain costs, many employers limit drug testing to those applicant whom they expect to offer a position to, as a condition of hire. While there is no requirement to notify an applicant in advance of a drug test, he or she is free to refuse to submit to it. Refusal to submit, of course, may be grounds to terminate the application process.

Select State Laws

ALABAMA: Alabama's Drug-Free Workplace Program is codified under Ala. Code 25-5-330 et seq. Employers who implement a Drug-Free Workplace Program qualify for a 5 percent discount under the employer's workers' compensation policy.

ALASKA: Alaska's law for drug and alcohol testing of employees is codified at Alaska Stat. 23.10.600 et seq. Employers who comply with the statute are protected from civil liability if they take disciplinary action in good faith based on the results of positive tests. However, persons who are injured by a drug or alcohol-impaired employee may not sue the employer for failing to test for drugs or alcohol.

ARIZONA: Ariz. Rev. Stat. Ann. 23-493 et seq. requires employers to adopt a written policy distributed to every employee who is subject to testing or printed as part of a personnel handbook or manual.

ARKANSAS: Arkansas has not enacted any laws regarding the testing of employees for drugs or alcohol. The Arkansas Supreme Court has upheld dismissals of employees who violate an employer's substance abuse policy.

CALIFORNIA: Under California Drug-Free Workplace Act of 1990, Cal. Gov. Code 8350 et seq. (modeled after the federal act), only employers who are awarded contracts or grants from any state agency must certify to the contracting or granting agency that they will provide a drug-free workplace. The contractors must also have a written policy for their employees.

COLORADO: Colorado has not enacted any employment drug or alcohol testing laws. However, the Colorado Supreme Court has upheld testing if the employee's supervisor had a reasonable suspicion that the employee was either using or was under the influence of illegal drugs or alcohol.

CONNECTICUT; Connecticut's law, codified at Conn. Gen. Stat. 31-51 et seq., provides express language protecting the privacy of employee testing. Reasonable suspicion is required before an employer may compel testing, and the employer must show that the use was adversely affecting the employee's job performance.

DELAWARE: No specific laws have been enacted.

FLORIDA: Employee drug testing is voluntary in Florida. However, Fla. Stat. 440.101 et seq. gives incentives to employers that implement drug-free workplace policies. Florida law parallels federal law on the subject. If a governmental unit receives two or more equal bids for services or goods, preference is given to the business that has implemented a drug-free workplace program. The state also gives a worker's compensation premium discount to employers who have implemented a drug-free workplace.

GEORGIA: Georgia has a Drug-free Workplace Act, Ga. Code 50-24-1. All state contractors holding contracts of at least $25,000 must certify that they will provide a drug-free workplace. If a contractor fails to comply with the Act, the state may suspend payments or terminate the contract, so the contractor has an incentive to comply.

IDAHO: The Idaho Private Employer Alcohol and Drug-Free Workplace Act, Idaho Code 72-1701 et seq. provides voluntary drug and alcohol testing guidelines for private employers. If an employer follows the guidelines, employees testing positive for drugs or alcohol will be guilty of misconduct and will be denied unemployment benefits.

ILLINOIS: Illinois has not enacted its own legislation, but it allows private employers to require all employees to conform to the requirements of the federal Drug-free Workplace Act of 1988.

INDIANA: Indiana has not enacted its own legislation, but it allows private employers to require all employees to conform to the requirements of the federal Drug-free Workplace Act of 1988.

IOWA: Under Iowa Code 730.5 et seq., random testing is prohibited. An employer may require pre-employment drug tests for peace officers or state correctional officers. An employer may require a spe-cific employee to submit to a drug test only if certain conditions are met, as outlined in the statute.

KANSAS: Kansas has not enacted any workplace drug and alcohol testing laws.

KENTUCKY: Kentucky has no legislation governing employment drug or alcohol testing. However, 702 Ky. Admin. Regs. 5:080 requires all school bus drivers working for any county school district in Kentucky to be drug-tested after an accident resulting in bodily injury or $1,000 worth of property damage.

LOUSIANA: Under Louisiana Rev. Stat. 49:1001 et seq., private employers do not need a written policy to implement a drug testing policy, there need not be reasonable cause to test an employee, and employers need not offer rehabilitation to offenders prior to termination from employment. Same-ender direct observation is permitted in certain circumstances, as where there is reason to believe an employee may alter or substitute urine specimens, etc.

MAINE: Rev. Stat. 26 -681 et seq., protects the privacy rights of individual employees from undue invasion by employers but permits the use of tests when the employer has a compelling reason to administer them.

MARYLAND: Under Md. Code Ann., Health-Gen.17-214, employers may test their employees for drugs and alcohol for any "legitimate business purpose." However, the statute outlines specific procedural requirements and employee rights in cases where positive results may be used for discipline.

MASSACHUSETTS: Massachusetts has no specific employment drug and alcohol testing laws.

MICHIGAN: No specific law, except that under Mich. Comp. Laws 37.1211(a civil rights law) established employment policies, programs, procedures or work rules regarding the use of alcoholic liquor or the illegal use of drugs will not be considered to violate an individual's civil rights.

MINNESOTA: Minnesota was one of the first states to enact employment drug and alcohol testing laws in the country, entitled "Authorized Drug and Alcohol Testing" and codified at Minn. Stat. 181.951 et seq. Employers may not conduct drug and alcohol tests without a written drug and alcohol testing policy. Employers may not require employees or job applicants to undergo drug and alcohol testing on an "arbitrary and capricious basis."

MISSISSIPPI: Under Miss. Code Ann. 71-7-1 et seq, all employers who participate in Mississippi's workers' compensation program are required to establish and implement a written drug and alcohol-testing program. That virtually covers all employers.

MISSOURI: Missouri's Drug-Free Public Work Force Act is codified at Mo. Rev. Stat.105.1100 et seq. Only state employees under the executive branch of the Missouri state government are subject to the Act. No provisions mandate compliance from private employers.

MONTANA: Mont. Code Ann. 39-2-205 et seq.("Montana Workforce Drug and Alcohol Testing Act") requires that any testing of employees by private employers be done in accordance with written policies and procedures established by the employer.

NEBRASKA: Neb. Rev. Stat. 48-1901 et seq. states that no disciplinary or administrative action is allowed unless an initial positive test has been confirmed by gas chromatography/mass spectrometry technique. Attempts to alter the results of a drug or alcohol test are punishable as Class I criminal misdemeanors.

NEVADA: No state law regulates private employer drug or alcohol testing. State employees do not include members of the Nevada National Guard or employees of state penal, mental, and correctional institutions.

NEW HAMPSHIRE: New Hampshire has not enacted any employment drug or alcohol testing laws.

NEW JERSEY: New Jersey has no express law relating to employment drug or alcohol testing.

NEW MEXICO: New Mexico has no statutes regulating the testing of employees for drugs or alcohol.

NEW YORK: New York has no express employment drug or alcohol testing laws. Random drug and alcohol testing of city transit authority bus drivers, police officers and corrections officers has been up held by courts.

NORTH CAROLINA: North Carolina has a "Controlled Substance Examination Regulation" codified at Gen. Stat. 95-230 et seq. The law purports to protect individuals from "unreliable and inadequate examinations and screening for controlled substances" and to preserve an individual's dignity to the extent practical, and focuses on chain-of-custody and laboratory testing procedures more than policy guidelines.

NORTH DAKOTA: No statute expressly addresses employment drug and alcohol testing in North Dakota, and there is little, if any, case law in the area.

OHIO: Ohio does not have any employment drug and alcohol testing laws.

OKLAHOMA: Oklahoma's "Standards for Workplace Drug and Alcohol Testing Act", Okla. Stat. 40-551, applies to both public and private employers. No unusual provisions.

OREGON: No specific employment drug or alcohol testing laws.

PENNSYLVANIA: Pennsylvania has not enacted any employment drug and alcohol testing laws.

RHODE ISLAND: Rhode Island's "Urine and Blood Tests as a Condition of Employment" provision under R.I. Gen. Laws 28-6.5-1 and 28-6.5-2. prohibits the termination from employment of any person who tests positive for drugs or alcohol. Instead, the employee must be referred to a substance abuse professional for treatment or evaluation.

SOUTH CAROLINA: South Carolina's law, modeled after the federal law, affects those doing business with the State. Codified at S.C. Code Ann.44107-10 et seq. offers a 5 percent reduction in worker's compensation premiums to participating employers (private employers are not required to implement such programs).

SOUTH DAKOTA: No employment drug and alcohol testing laws.

TENNESSEE: Tenn. Code Ann. 50-9-103 et. seq., gives a discount on workers' compensation premiums and shifts the burden of proof to employees in case of an accident.

TEXAS: Under Tex. Code Ann. 411.091, the "Policy for Elimination of Drugs in the Workplace," employers with fifteen or more employees with workers' compensation insurance coverage are required to adopt a policy of their own choosing but directed at the elimination of drug abuse and its effects in the workplace.

UTAH: Utah Code Ann. 34-38-1 et seq. employers may test employees or prospective employees as a condition of hire or continued employment. In a twist of the law, employers and management must submit to the testing themselves.

VERMONT: Vt. Stat. Ann. 21 § 511 et seq. prohibits random testing for drugs or the drug testing of employees as a condition of continued employment, promotion, or change in employee status.

VIRGINIA: No express law governs employment drug testing.

WASHINGTON: Washington Rev. Code 49.82.010 et seq. models the federal law. Private employers who adopt a drug-free workplace program will receive a 5 percent discount on their workers' compensation premiums.

WEST VIRGINIA: West Virginia has not enacted any employment drug or alcohol testing law, and in a 1990 case, the Supreme Court of West Virginia prohibited random testing by a private employer.

WISCONSIN: No express statute governs employment drug and alcohol testing.

WYOMING: Wyoming has no express statute governs employment drug and alcohol testing.

Additional Resources

"Drug Testing in the Workplace." Available at http://jobsearchtech.about.com/library/weekly/aa090301-2.htm

"Drug Testing State Laws." March 2002. Available at http://www.urineluck.com.

"Mandatory Guidelines for Federal Workplace Drug Testing Programs." Available at http://workplace.samhsa.gov/Resource/Center/r362.htm.

"Small Business Workplace Kit: Alcohol and Drug Testing." U.S. Dept. of Labor. Available at http://www.dol.gov/asp/programs/drugs/workingpartners/Screen5.htm.

Treasury Employees v. Von Raab, 489 U.S. 656 (1989) Available at http://caselaw.lp.findlaw.com.

"Your Questions Answered—Drug Testing." Stanton, Hughes. March 2002. Available at http://www.stantonhughes.com/qa0203.html.

Drug Testing

Sections within this essay:

Background

Mandatory drug testing in public schools is a relatively new issue for the law. Introduced during the late 1980s and expanding over the next decade, the practice of analyzing student urine for illegal drugs is carried out in a small but growing percentage of schools nationwide. In 2001, the New York Times estimated that hundreds out of the nation's 60,000 school districts require some form of testing. Thus students in thousands of individual schools are affected, and more districts have indicated their interest in adopting testing, too. Currently, the practice has been ruled constitutional in one form by the U.S. Supreme Court.

School drug-testing grew out of the so-called war on drugs. Prior to the 1980s, citizens were rarely tested for drugs except by law enforcement officers and primarily when there were grounds for suspicion. Exceptions existed in a few areas, notably in the routine testing of college and pro athletes and prison inmates. But along with other sweeping social changes, the drug war introduced the idea of so-called mandatory suspicionless testing in the work- place. After spreading from the public to the private sector, the trend reached public high schools in limited form—in the testing of student athletes—in the late 1980s.

Legally, mandatory suspicionless drug testing has proved controversial both in the workplace and school. The practice raises questions about how to balance a perceived social need for health and safety with privacy concerns. Not surprisingly, in light of its rulings favorable to workplace testing, the U.S. Supreme Court upheld suspicionless student drug testing in 1995. The Court already viewed the privacy rights of public school students as being lower than those generally enjoyed by adult citizens. Now, the majority saw an important social need for schools to combat drug usage, viewing the loss of student privacy as inconsequential.

However, the legal status of student drug-testing is cloudy. In large part, this is due to dramatic changes following the 1995 decision. School districts correctly saw the Supreme Court's decision as a green light, but some took the practice much further. Not merely student athletes but a range of student activities, such as band and choir, began requiring students to pass drug tests as a condition for eligibility. This trend has brought new lawsuits and divergent verdicts from the federal courts. As a result, the Supreme Court is expected to clarify certain limits on school drug testing in 2002.

Important legal milestones include the following:

• The Supreme Court defined students' reduced Fourth Amendment rights in New Jersey v. T.L.O. (1985), where it ruled that schools do not have to follow the customary requirements of having probable cause or a warrant in order to carry out searches. Instead, school authorities must follow only a simple standard based on "the dictates of reason and common sense."
• In its first landmark drug-testing ruling, the Supreme Court upheld the suspicionless drug-testing of railroad employees who are involved in accidents in Skinner v. Railway Labor Executives' Ass'n (1989). The court held that the government has a compelling interest in public safety that overrides Fourth Amendment rights of the employees.
• In a second critical ruling on drug-testing, the Court upheld the suspicionless drug testing of U.S. Customs Service employees in sensitive positions that involve extraordinary safety and national security hazards in National Treasury Employees Union v. Von Raab (1989).
• The Supreme Court upheld the constitutionality of mandatory suspicionless drug-testing of student athletes in Vernonia v. Acton (1995). Applying its rulings in Skinner and Von Raab, the Court found that the students' Fourth Amendment rights were outweighed by the government's interest in drug-free schools when it approved a school's policy of random suspicionless testing of student athletes. In the wake of its landmark ruling, hundreds of school districts nationwide adopted similar policies.
• With the expansion of student drug testing beyond athletics, some schools began requiring random drug-testing as a condition for participation in other extracurricular activities. A panel of the Seventh Circuit Court of Appeals upheld the constitutionality of such a school program in Todd v. Rush County Schools (1998), and the Supreme Court refused to hear the case, letting the verdict stand.
• In contrast, another circuit court disapproved of broad extracurricular drug testing. A panel of the Tenth Circuit Court of Appeals overturned a school drug policy in Earls v. Tecumseh (2001), holding that extracurricular testing went further than what is permitted under Vernonia. With the two circuits in obvious disagreement, the Supreme Court accepted the case for review in 2002.
• A federal judge in Texas struck down what had been the nation's first school district policy requiring drug testing of all junior high school students in Tannahill v. Lockney School District (2001).

At both the federal and state level, the future of drug-testing policies is in question. In 2001, legal observers began to note a trend in the courts toward rejecting student drug testing as more cases ended in verdicts for plaintiffs who challenged their school policies. Although some viewed this as a shift in public attitudes, it was too early to say definitively what impact the cases would have on this developing area of law.

Federal Court Decisions

Mandatory Suspicionless Testing of Student Athletes Ruled Constitutional

The legal foundation for suspicionless student drug testing rests upon Vernonia v. Acton (1995). In that landmark decision, the Supreme Court upheld the constitutionality of a school policy requiring student athletes to pass random urinalysis tests as a ground for participation in interscholastic sports. The Court rejected a Fourth Amendment claim asserting that such tests are an unconstitutional invasion of privacy. Closely watched nationwide, the decision effectively opened the door for school districts to institute similar policies of their own.

In the late 1980s, school authorities in the small logging community of Vernonia, Oregon, noticed a sharp increase in illegal drug usage and a doubling in student disciplinary problems. They observed that student athletes were leaders of the drug culture. Officials responded by offering anti-drug classes and presentations, along with conducting drug sweeps with dogs. After these education and interdiction efforts failed, a large segment of the student body was deemed to be in "a state of rebellion," according to findings of the Oregon District Court.

With the support of some parents, school officials next implemented a drug-testing policy for student athletes in fall 1989. It had three goals: prevent athlete drug use, protect student health and safety, and provide drug assistance programs. It imposed strict eligibility requirements: parents of student athletes had to submit a consent form for drug testing of their children, and the student athletes had to submit to tests. Once weekly the school randomly tested 10 percent of all student athletes by taking urine samples that were analyzed for illegal drug usage—a procedure known as urinalysis.

A legal challenge to the policy arose when a student and his parents refused to consent to drug testing and he was denied the chance to play football. Their lawsuit charged that the district violated his Fourth Amendment right to be free from unreasonable searches and seizures as well as his privacy rights under the Oregon state constitution. The District Court rejected their claims, but they won on appeal. The school district then appealed to the U.S. Supreme Court.

In its 6-3 decision, the majority followed earlier precedents. In particular, it looked back on its landmark decision regarding privacy for public school students, New Jersey v. T.L.O. (1985). That decision extended the great basis in U.S. law for privacy—Fourth Amendment protections—to public school students. It held that they, too, were protected from "unreasonable" searches and seizures of their persons and property by authorities, since public school authorities are agents of the government. But T.L.O. set the standard that Fourth Amendment rights are "different in public schools than elsewhere." In lowering student rights, the Court did so observing that public school authorities have a compelling interest in supervision and maintaining order that outweighs individual student rights.

In Vernonia, the majority went further. First, it distinguished the rights of student athletes from the already reduced privacy rights of the public school student body. Justice Antonin Scalia's majority opinion stated that student athletes have an even lower expectation of privacy since they routinely undress in locker rooms, noting that "school sports are not for the bashful." Second, it approved the particulars of the Vernonia school district's policy. The urinalysis was performed under minimally intrusive conditions similar to those in the schools' restrooms. There was no concern that school officials might arbitrarily accuse certain students because every student athlete was subject to being tested. Furthermore, participation was ultimately voluntary, since no one was required to play sports. And finally, the school's goals in reducing a serious drug abuse and disciplinary problem justified the testing.

Three justices dissented. Writing for the dissenters, Sandra Day O'Connor observed that mass suspicionless searches of groups had been found unconstitutional throughout most of the court's history, except in cases where the alternative—searching only those under suspicion—was ineffectual. She concluded that the school's policy was too broad and too imprecise to be constitutional under the Fourth Amendment.

Lower Court Disagreement over Broader Extracurricular Student Testing

The practical effect of Vernonia was to clear the way for student athlete drug-testing in schools nationwide. But the decision did not envision what happened next. By the mid-1990s, schools had begun adopting even broader testing policies that expanded the definition of testable extracurricular activities to include activities such as band and choir and, as in the extreme instance of Lockney, Texas, the entire junior high school student body. This broadening set the stage for the next constitutional challenges, which resulted in conflicting verdicts among federal circuit courts. Given these varying rulings, there is as of 2002 no single standard in federal caselaw for when public schools may require students to pass drug tests.

Initially, one such policy passed constitutional approval. In 1998, a three-judge panel of the Seventh Circuit Court of Appeals upheld a school system's broad drug testing program in Todd v. Rush County Schools (1998). At issue was a policy by the Rush County School Board of Indiana, which in 1996 banned a high school student from participation in extracurricular programs unless the student first passed negative for alcohol and other drugs, or tobacco in a random, unannounced urinalysis exam. The policy covered students in activities ranging from the Library Club to the Future Farmers of America Officers, as well as those who merely drove to and from school. Any student failing the urinalysis lost eligibility until such time as he or she successfully passed.

In rejecting a challenge to the policy, the Seventh Circuit found that the policy was consistent with the Supreme Court's ruling in Vernonia. Its brief opinion found sufficient similarity between the intent of the Indiana and Vernonia programs: deterring drug use rather than punishing users. The broader scope of the Indiana policy was not a constitutional problem, as the court observed that nonathletic extracurricular activities also "require healthy students." Its own 1988 decision on drug-testing student athletes, Schaill v. Tippecanoe County School Corp., also supported the broader policy. The Supreme Court declined to review the case. As with the earlier Vernonia decision, the New York Times reported that the Seventh Circuit's decision "set off a wave of such policies" nationwide. Ironically, however, the Indiana policy was later struck down on state constitutional grounds.

In 2001, a dramatically different verdict appeared. A panel of the Tenth Circuit Court of Appeals ruled that drug-testing for eligibility for extracurricular activities violated Oklahoma public school students' rights in Earls v. Tecumseh. Unlike the Seventh Circuit, the panel followed a very narrow reading of Vernonia. It applied that decision's facts and conclusions to the circumstances of the Tecumseh School District in Pottawatomie County, Oklahoma, and found sharp differences. No widespread drug problem existed in the school, unlike the Vernonia district. Moreover, the panel rejected the district's contention that drug testing was justified because extracurricular activities involved safety risks for unsupervised students. Instead, the panel ruled that the tests imposed unreasonable searches upon students in violation of their Fourth Amendment rights.

The Tenth Circuit panel specifically addressed the question of when a school drug testing policy was appropriate. It expressly stated that it did not expect schools to wait until drug abuse problems grew out of control. However, if school officials faced no requirements, they would be free to test students as a condition of attending school—an outcome that the justices did not believe the Supreme Court would uphold.

Significantly, the Earls decisions signaled a deep rift between two federal circuits in how to interpret Vernonia. Presumably for this reason, the Supreme Court accepted the case for review, with a decision expected some time in 2002. Lingering questions about the permissibility and scope of such policies may also have inspired the Court to return to the question. Indeed, in 2001, legal observers noted a shift in federal opinions away from support for student drug-testing policies. In addition to the Todd case, a federal judge struck down the pervasive policy of testing all public school students in grades seven through 12 in Tannahill v. Lockney School District (2001), while state courts also ruled against policies.

State Court Decisions

As a policy matter, student drug testing in public schools is widely determined by school districts. State legislatures have thus far not intruded, leaving these determinations to the discretion of local school boards. As such, policies vary widely nationwide, and even from district to district within given states. Most schools still have no testing policy, but those that have adopted policies tend to fall into two categories: mandatory suspicionless testing is required of students who wish to play intramural athletics, or, more broadly, it is required not only of athletes but also of students wishing to participate in extracurricular clubs and organizations.

Legal direction on school policies has come from the courts. The highest-profile challenges to the policies have been brought in federal court on Fourth Amendment grounds, but some cases have been brought on state constitutional grounds, too. State constitutions often have broader privacy protections than are found under the federal constitution, thus providing powerful legal grounds for plaintiffs who want to challenge overly aggressive school policies.

The first state constitutional challenge against mandatory testing of student athletes came in Wilson v. Ridgefield Park Board of Education (1997). The American Civil Liberties Union brought the case against Ridgefield Park, New Jersey school board, arguing that the policy violated state constitutional privacy rights. A state superior court judge agreed, additionally finding that the school had no evidence of a severe drug problem among athletes, and temporarily blocked enforcement of the policy pending trial. But before the case could be heard, the school board dropped the policy in a 1998 settlement.

State courts in Indiana, Oregon, and Pennsylvania have also found constitutional problems with school policies. Some state courts have addressed themselves to policies resulting from the expansion of student testing to other extracurricular activities. In rejecting one such policy, the Colorado state supreme court applied the U.S. Supreme Court's 1995 standard from Vernonia v. Acton when it held that high school marching band members have a higher expectation of privacy than student athletes who undress in locker rooms, in Trinidad School District No. 1 v. Lopez (1998). In other state litigation, school districts in Maryland and Washington discontinued policies following lawsuits. These cases signal that the legal future of suspicionless student drug testing is far from certain.

Additional Resources

Back to School—and a Test You Can't Study For American Civil Liberties Union. Available at http://www.aclu.org/features/f083000a.html.

Constitutional Amendments: 1789 to the Present Palmer, Kris E., ed., Gale Group, 2000.

"Court Rulings Signal a Shift on Random Drug Tests in Schools" Wilgoren, Jodi, The New York Times, March 25, 2001.

"Random Drug Testing of Students Proving To Be a Popular Idea" Walsh, Mark. Education Week, January 28, 1998. Available at: http://www.edweek.org/ew/vol-17/20drug.h17.

Vernonia School District 47J v. Wayne Acton Supreme Court opinion. Available at http://supct.law.cornell.edu/supct/html/94-590.ZO.html.

West Encyclopedia of American Law Lippert, Theresa J., ed., West Group, 1998.

Organizations

American Civil Liberties Union (ACLU)

125 Broad Street, 18th Floor
New York, NY 10004 USA
Phone: (212) 549-2500
URL: http://www.aclu.org
Primary Contact: Nadine Strossen, Pres.

Drug-Free Schools Coalition

203 Main St., PMB 327
Flemington, NJ 08822 USA
Phone: (908) 284-5080
Primary Contact: David G. Evans, Exec. Dir.

National School Boards Association

1680 Duke Street
Alexandria, VA 22314 USA
Phone: (703) 684-7590
URL: www.nsba.org
Primary Contact: Anne L. Bryant, Exec. Dir.

Drug testing

Definition

Drug testing is the assessing of drug use (or non-use) by a person. The drugs for which one tests fall into three main types: illegal drugs, alcohol, and performance-enhancing drugs. Illegal drugs include marijuana , cocaine, amphetamines, and phencyclidine (PCP, the hallucinogen known as "angel dust"). Alcohol is, of course, a legal drug for adults, but since such activities as driving under its influence are illegal, it is sometimes very important to test for the level of alcohol in the bloodstream. Performance-enhancing drugs may be legal, but their use by athletes may be forbidden by the rules of an athletic association sponsoring a competition, rules designed to be fair to all the players.

Description

One line of attack in the "war against drugs" in the United States involves compulsory drug testing. Specific drug-test laws vary from state to state, but drug tests are commonly administered in schools, athletic competitions, and the workplace. When results of some tests are being evaluated, it is important to keep in mind the fact that sometimes legitimate prescription drugs for such conditions as arthritis and asthma can produce test results that falsely suggest illegal drug use.

Some schools test students in general for drug use; others focus on student athletes because drug use increases the risk of sports-related injury, and also because the use of performance-enhancing drugs would give the athletes who use them an unfair advantage over the other athletes. The United States Supreme Court ruled in 1995 that schools may test entire teams of student athletes, even if individual team members are not suspected of using drugs. On the state level, courts are divided on the circumstances under which such testing can legally

occur. Some states provide more protection than others for the rights of students to privacy and due process.

In the 1970s, the issue of performance-enhancing drug use among athletes came into the forefront. Many athletes use performance-enhancing drugs (ergogenic drugs) such as anabolic steroids, growth hormone, and erythropoietin. Some athletes also use stimulants because of their ability to mask fatigue. Athletes are tested for use of forbidden drugs at many major meets.

The federal government laid the groundwork for drug testing in the workplace when, in the late 1980s, it initiated mandatory drug testing of federal employees, and began to require that government contractors establish drug-testing programs for their workers. Today, many large companies in the United States administer drug tests to their employees, but testing in smaller organizations is significantly less common.

Some workplace drug-testing policies are considerably stricter than others. Federal employees can be subject to compulsory random drug tests, as can private-sector employees with responsibility for the lives and safety of others. It is obviously not as dangerous to the public for the person raking leaves in a park to take illegal drugs as for an airplane pilot, a truck driver, or a person producing atomic weapons. Much workplace testing is conducted under such circumstances as the following:

• Pre-employment. Employers offer employment on condition of a negative drug test.
• Reasonable suspicion. Employers test an employee after direct observation of drug use or possession, patterns of erratic behavior, or drug-related arrests.
• Post-accident. Employees involved in accidents are sometimes asked to take a drug test immediately after an incident to determine whether alcohol or drug use was a factor.
• Treatment follow-up. Employees returning to work after treatment for substance abuse are often subject to follow-up testing.

Urine is the most common sample used in drug testing. Urine tests for federal employees are first analyzed by laboratories certified by the Substance Abuse and Mental Health Services Administration (SAMHSA), and any samples that come up positive are double-checked by gas chromatograph mass spectrometry, the "gold standard" test that identifies the exact molecular structure of a substance. Some private employers also follow SAMHSA procedures and use federal laboratories for testing, but others use commercial drug-testing kits. These commercial kits have often been criticized for generating a high rate of false positives. The problems associated with urine testing have sparked interest in alternative techniques, such as the testing of hair, sweat, or saliva.

Viewpoints

SAMHSA advocates drug testing in order to help businesses achieve a drug-free workplace. A survey from the United States National Institute on Drug Abuse (NIDA) estimated that employee drug misuse cost the country billions of dollars in lost productivity, as well as in medical expenses and in worker-compensation claims. Mandatory drug testing in the workplace deters those who abuse drugs and alcohol from engaging in this unhealthy behavior at least while they are on the job, and it may deter non-users from ever starting to abuse drugs and alcohol. Also, it can sometimes help those with abuse problems to admit them and so to start getting help, but some abusers are in such deep denial that they cannot be helped in this way.

Opponents of these views point out problems with drug testing. Workplace testing may actually dampen company productivity because it is time-consuming, has the potential to violate the confidentiality that medical personnel are obliged to practice, and undermines staff morale and loyalty. More importantly, it may needlessly

KEY TERMS

Amphetamine —A chemical mixture that can strongly stimulate the central nervous system. Over time, users tend to need stronger doses, and eventually they may develop a physical dependence on it and thus become addicted.

Anabolic steroid —A synthetic or semisynthetic substance that promotes the production within the body of the proteins that build up tissues, especially muscle tissues.

Cocaine —An alkaloid chemical obtained from the leaves of the coca plant (or from some related species). It is addictive, it can cause mental and physical problems, and an overdose can lead to coma and death.

Ergogenic —Giving rise to, or enhancing, work, activity, functioning, and the like.

Erythropoietin —A protein produced mostly in the kidneys, and now available synthetically, that stimulates the production of red blood cells in the bone marrow.

False negative —A test result that erroneously gives a negative finding when the actual condition should have given a positive finding.

False positive —A test result that erroneously gives a positive finding when the actual condition should have given a negative finding.

Gas chromatograph mass spectrometry —A technique by which complex organic compounds are identified by the use of two sophisticated instruments. First, a gas chromatograph heats the compounds until they vaporize into gases which ascend a column and emerge one at a time. Then, each separate fraction of these gases is sent to a mass spectrograph which identifies the fragments of the molecules according to their mass. One thus gets a kind of chemical fingerprint of the substance being tested, and checks in a data base of thousands of such fingerprints of known substances to see which substance one has just tested.

Growth hormone —A substance produced naturally in the body, and now available synthetically, that promotes the development of flesh and bone, and influences the metabolism of proteins, carbohydrates, and fats.

Hallucinogen —A drug that can cause false sensations, such as hearing voices when there are no voices and no other sounds that could reasonably be confused with voices, or seeing persons or things that are not present.

Marijuana —The dried leaves, stems, and flowers of plants of the cannabis family. It is often smoked, sometimes eaten. It can produce distorted perceptions (which the users consider to be a form of elevated consciousness) and sometimes causes out-right hallucinations.

Phencyclidine —A chemical used legally as a veterinary anesthetic and illegally as a drug that alters consciousness (a psychedelic drug).

harm the careers of employees whose legitimate use of prescription medicines causes confusing or ambiguous test results. Also, it may identify substances at insignificant doses because of recreational drug use outside working hours, use that has no bearing on employee performance, according to civil-rights groups such as the American Civil Liberties Union (ACLU). The ACLU advises that employees in safety-sensitive positions such as airline pilots should indeed be tested for impairment, and that any individuals found to be impaired should then be referred to special programs called Employee Assistance Programs (EAPs). EAPs can in turn direct these persons to the appropriate substance-abuse programs. The ACLU also recommends more rigorous reference-checking to avoid hiring someone with a history of drug-abuse problems in the first place. However, if the person no longer has a drug problem, such an approach could illegally and unfairly violate this person's rights.

Many health-care organizations that provide qualified support for drug testing oppose its more radical uses, such as random testing or testing without suspicion. The American Nurses Association (ANA) opposes random drug testing of health-care workers, viewing it in violation of the basic principle of "innocent until proven guilty," but provides qualified support for testing under reasonable suspicion, and with evidence that job performance has been impaired by alcohol or drug usage. Employees who initially test positive for drugs should be offered a reassessment of the test results and should be given the chance to explain what legitimate medications they are taking which might have produced false-positive results. Even when the drug use is confirmed, counseling and treatment are recommended before any disciplinary action is taken, according to the ANA. The American Hospital Association (AHA) advocates pre-employment testing, suspicion-based testing, testing after certain incidents or injuries, and testing following drug rehabilitation, but not random testing without cause.

Some health-care organizations have also issued position statements on drug-testing policies in the community. The American Academy of Pediatrics has stated opposition to drug testing without cause as a prerequisite to student participation in school activities. And the American Medical Association (AMA) is opposed to the practice of reporting positive drug results for pregnant women to law-enforcement officials. Proponents say such practices protect unborn children, but the AMA states they are an invasion of medical confidentiality and a violation of the provider/patient relationship. Such practices may also discourage some women from seeking prenatal care .

Professional implications

Nurses may draw blood samples, for example, when testing for alcohol level. They must be certain that they have the informed consent of the person from whom they are drawing blood, or else that they have clear-cut legal authorization, such as a court order, to do so. In the case of testing of urine, hair, saliva, and sweat, nurses should instruct the person being tested and then properly store and label the specimen provided. Medical technologists or clinical-laboratory scientists are responsible for running the tests, for reporting the results accurately, and in some cases for estimating the margin of error or assessing the likelihood that the result is a false positive or a false negative. All health personnel must see that the results of such tests are disclosed only to those authorized to have them, and must otherwise maintain strict professional confidentiality.

Resources

PERIODICALS

Annas, G. J. "Testing Poor Pregnant Women for Cocaine— Physicians as Police Investigators." New England Journal of Medicine 344, no. 22 (31 May 2001): 1729–1732.

Kennedy, M. M. and R. B. Pickett. "An Uncomfortable Issue: Dealing with Substance Abuse." Clinical Laboratory Management Review: Official Publication of the Clinical Laboratory Management Association/CLMA 15, no. 3 (May–June 2001): 183–184.

Kraus, J. F. "The Effects of Certain Drug-Testing Programs on Injury Reduction in the Workplace: An Evidence-Based Review." International Journal of Occupational and Environmental Health: Official Journal of the International Commission on Occupational Health 7, no. 2 (April–June 2001): 103–108.

Kunsman, K. "Oral Fluid Testing Arrives." Occupational Health and Safety (Waco, TX) 69, no. 4 (April 2000): 28–30, 34.

Laws, J. "Rewriting the Testing Rulebook." Occupational Health and Safety (Waco, TX) 69, no. 4 (April 2000): 36–38.

ORGANIZATIONS

American Civil Liberties Union. 125 Broad Street, New York, NY 10004-2400. (212) 549-2500. [email protected]. <http://aclu.org>.

American Medical Association. The Council on Ethical and Judicial Affairs. 515 North State Street, Chicago, IL 60610-4320. (312) 464-4823. <http://www.amaassn.org/ama/pub/category/2498.html>.

American Nurses Association, ANA, 600 Maryland Avenue, SW, Suite 100 West, Washington, DC 20024-2571. (800) 274-4ANA. <http://www.nursingworld.org>.

American Society of Addiction Medicine. 4601 North Park Avenue, Arcade Suite 101, Chevy Chase, MD 20815-4520. (301) 656-3920. <http://www.asam.org>.

Division of Workplace Programs, Center for Substance Abuse Prevention, Substance Abuse and Mental Health Services Administration. 5600 Fishers Lane, Rockwall II Building, Room 815, Rockville, MD 20857. (301) 443-6780. <http://workplace.samhsa.gov>.

National Clearinghouse for Alcohol and Drug Abuse Information (NCADI) Center for Substance Abuse Prevention. 5600 Fishers Lane, Rockville, MD 20857.(301) 443-0365. <http://www.health.org>.

National Institute on Drug Abuse. 6001 Executive Boulevard, Bethesda, MD 20892. (301) 443-1124. www.nida.nih.gov.

NSNA, National Student Nurses Association, 555 West 57th Street, New York, NY 10019. (212) 581-2211. <http://www.nsna.org>.

Ann Quigley

Drug Testing

Definition

Drug testing is the assessing of drug use (or nonuse) by a person. The drugs for which one tests fall into three main types: illegal drugs, alcohol, and performance-enhancing drugs. Illegal drugs include marijuana, cocaine, amphetamines, and phencyclidine (PCP, the hallucinogen known as "angel dust"). Alcohol is, of course, a legal drug for adults, but since such activities as driving under its influence are illegal, it is sometimes very important to test for the level of alcohol in the bloodstream. Performance-enhancing drugs may be legal, but their use by athletes may be forbidden by the rules of an athletic association sponsoring a competition.

Description

One line of attack in the "war against drugs" in the United States involves compulsory drug testing. Specific drug-test laws vary from state to state, but drug tests are commonly administered in schools, athletic competitions, and the workplace. When results of some tests are being evaluated, it is important to keep in mind the fact that sometimes legitimate prescription drugs for such conditions as arthritis and asthma can produce test results that falsely suggest illegal drug use.

Some schools test students in general for drug use; others focus on student athletes because drug use increases the risk of sports-related injury, and also because the use of performance-enhancing drugs would give the athletes who use them an unfair advantage over the other athletes. The United States Supreme Court ruled in 1995 that schools may test entire teams of student athletes, even if individual team members are not suspected of using drugs. On the state level, courts are divided on the circumstances under which such testing can legally occur. Some states provide more protection than others for the rights of students to privacy and due process.

In the 1970s, the issue of performance-enhancing drug use among athletes came into the forefront. Many athletes use performance-enhancing drugs (ergogenic drugs) such as anabolic steroids, growth hormone, and erythropoietin. Some athletes also use stimulants because of their ability to mask fatigue. Athletes are tested for use of forbidden drugs at many major meets.

The federal government laid the groundwork for drug testing in the workplace when, in the late 1980s, it initiated mandatory drug testing of federal employees, and began to require that government contractors establish drug-testing programs for their workers. Today, many large companies in the United States administer drug tests to their employees, but testing in smaller organizations is significantly less common.

Some workplace drug-testing policies are considerably stricter than others. Federal employees can be subject to compulsory random drug tests, as can private-sector employees with responsibility for the lives and safety of others. It is obviously not as dangerous to the public for the person raking leaves in a park to take illegal drugs as for an airplane pilot, a truck driver, or a person producing atomic weapons. Much workplace testing is conducted under such circumstances as the following:

• Pre-employment. Employers offer employment on condition of a negative drug test.
• Reasonable suspicion. Employers test an employee after direct observation of drug use or possession, patterns of erratic behavior, or drug-related arrests.
• Post-accident. Employees involved in accidents are sometimes asked to take a drug test immediately after an incident to determine whether alcohol or drug use was a factor.
• Treatment follow-up. Employees returning to work after treatment for substance abuse are often subject to follow-up testing.

Urine is the most common sample used in drug testing. Urine tests for federal employees are first analyzed by laboratories certified by the Substance Abuse and Mental Health Services Administration (SAMHSA), and any samples that come up positive are double-checked by gas chromatograph mass spectrometry, the "gold standard" test that identifies the exact molecular structure of a substance. Some private employers also follow SAMHSA procedures and use federal laboratories for testing, but others use commercial drug-testing kits. These commercial kits have often been criticized for generating a high rate of false positives. The problems associated with urine testing have sparked interest in alternative techniques, such as the testing of hair, sweat, or saliva.

Viewpoints

SAMHSA advocates drug testing in order to help businesses achieve a drug-free workplace. A survey from the United States National Institute on Drug Abuse (NIDA) estimated that employee drug misuse cost the country billions of dollars in lost productivity, as well as in medical expenses and in worker-compensation claims. Mandatory drug testing in the workplace deters those who abuse drugs and alcohol from engaging in this unhealthy behavior at least while they are on the job, and it may deter nonusers from ever starting to abuse drugs and alcohol. Also, it can sometimes help those with abuse problems to admit them and so to start getting help, but some abusers are in such deep denial that they cannot be helped in this way.

Opponents of these views point out problems with drug testing. Workplace testing may actually dampen company productivity because it is time-consuming, has the potential to violate the confidentiality that medical personnel are obliged to practice, and undermines staff morale and loyalty. More importantly, it may needlessly harm the careers of employees whose legitimate use of prescription medicines causes confusing or ambiguous test results. Also, it may identify substances at insignificant doses because of recreational drug use outside working hours, use that has no bearing on employee performance, according to civil-rights groups such as the American Civil Liberties Union (ACLU). The ACLU advises that employees in safety-sensitive positions such as airline pilots should indeed be tested for impairment, and that any individuals found to be impaired should then be referred to special programs called Employee Assistance Programs (EAPs). EAPs can in turn direct these persons to the appropriate substance-abuse programs. The ACLU also recommends more rigorous reference-checking to avoid hiring someone with a history of drug-abuse problems in the first place. However, if the person no longer has a drug problem, such an approach could illegally and unfairly violate this person's rights.

KEY TERMS

Amphetamine— A chemical mixture that can strongly stimulate the central nervous system. Over time, users tend to need stronger doses, and eventually they may develop a physical dependence on it and thus become addicted.

Anabolic steroid— A synthetic or semisynthetic substance that promotes the production within the body of the proteins that build up tissues, especially muscle tissues.

Cocaine— An alkaloid chemical obtained from the leaves of the coca plant (or from some related species). It is addictive, it can cause mental and physical problems, and an overdose can lead to coma and death.

Ergogenic— Giving rise to, or enhancing, work, activity, functioning, and the like.

Erythropoietin— A protein produced mostly in the kidneys, and now available synthetically, that stimulates the production of red blood cells in the bone marrow.

False negative— A test result that erroneously gives a negative finding when the actual condition should have given a positive finding.

False positive— A test result that erroneously gives a positive finding when the actual condition should have given a negative finding.

Gas chromatograph mass spectrometry— A technique by which complex organic compounds are identified by the use of two sophisticated instruments. First, a gas chromatograph heats the compounds until they vaporize into gases which ascend a column and emerge one at a time. Then, each separate fraction of these gases is sent to a mass spectrograph which identifies the fragments of the molecules according to their mass. One thus gets a kind of chemical fingerprint of the substance being tested, and checks in a data base of thousands of such fingerprints of known substances to see which substance one has just tested.

Growth hormone— A substance produced naturally in the body, and now available synthetically, that promotes the development of flesh and bone, and influences the metabolism of proteins, carbohydrates, and fats.

Hallucinogen— A drug that can cause false sensations, such as hearing voices when there are no voices and no other sounds that could reasonably be confused with voices, or seeing persons or things that are not present.

Marijuana— The dried leaves, stems, and flowers of plants of the cannabis family. It is often smoked, sometimes eaten. It can produce distorted perceptions (which the users consider to be a form of elevated consciousness) and sometimes causes outright hallucinations.

Phencyclidine— A chemical used legally as a veterinary anesthetic and illegally as a drug that alters consciousness (a psychedelic drug).

Many health-care organizations that provide qualified support for drug testing oppose its more radical uses, such as random testing or testing without suspicion. The American Nurses Association (ANA) opposes random drug testing of health-care workers, viewing it in violation of the basic principle of "innocent until proven guilty," but provides qualified support for testing under reasonable suspicion, and with evidence that job performance has been impaired by alcohol or drug usage. Employees who initially test positive for drugs should be offered a reassessment of the test results and should be given the chance to explain what legitimate medications they are taking which might have produced false-positive results. Even when the drug use is confirmed, counseling and treatment are recommended before any disciplinary action is taken, according to the ANA. The American Hospital Association (AHA) advocates pre-employment testing, suspicion-based testing, testing after certain incidents or injuries, and testing following drug rehabilitation, but not random testing without cause.

Some health-care organizations have also issued position statements on drug-testing policies in the community. The American Academy of Pediatrics has stated opposition to drug testing without cause as a prerequisite to student participation in school activities. And the American Medical Association (AMA) is opposed to the practice of reporting positive drug results for pregnant women to law-enforcement officials. Proponents say such practices protect unborn children, but the AMA states they are an invasion of medical confidentiality and a violation of the provider/patient relationship. Such practices may also discourage some women from seeking prenatal care.

Professional implications

Nurses may draw blood samples, for example, when testing for alcohol level. They must be certain that they have the informed consent of the person from whom they are drawing blood, or else that they have clear-cut legal authorization, such as a court order, to do so. In the case of testing of urine, hair, saliva, and sweat, nurses should instruct the person being tested and then properly store and label the specimen provided. Medical technologists or clinical-laboratory scientists are responsible for running the tests, for reporting the results accurately, and in some cases for estimating the margin of error or assessing the likelihood that the result is a false positive or a false negative. All health personnel must see that the results of such tests are disclosed only to those authorized to have them, and must otherwise maintain strict professional confidentiality.

Resources

PERIODICALS

Annas, G. J. "Testing Poor Pregnant Women for Cocaine—Physicians as Police Investigators." New England Journal of Medicine 344, no. 22 (31 May 2001): 1729-1732.

Kennedy, M. M. and R. B. Pickett. "An Uncomfortable Issue: Dealing with Substance Abuse." Clinical Laboratory Management Review: Official Publication of the Clinical Laboratory Management Association/CLMA 15, no. 3 (May-June 2001): 183-184.

Kraus, J. F. "The Effects of Certain Drug-Testing Programs on Injury Reduction in the Workplace: An Evidence-Based Review." International Journal of Occupational and Environmental Health: Official Journal of the International Commission on Occupational Health 7, no. 2 (April-June 2001): 103-108.

Kunsman, K. "Oral Fluid Testing Arrives." Occupational Health and Safety (Waco, TX) 69, no. 4 (April 2000): 28-30, 34.

Laws, J. "Rewriting the Testing Rulebook." Occupational Health and Safety (Waco, TX) 69, no. 4 (April 2000): 36-38.

ORGANIZATIONS

American Civil Liberties Union. 125 Broad Street, New York, NY 10004-2400. (212) 549-2500. [email protected]. 〈http://aclu.org〉.

American Medical Association. The Council on Ethical and Judicial Affairs. 515 North State Street, Chicago, IL 60610-4320. (312) 464-4823. 〈http://www.amaassn.org/ama/pub/category/2498.html〉.

American Nurses Association (ANA). 600 Maryland Avenue, SW, Suite 100 West, Washington, DC 20024-2571. (800) 274-4ANA. 〈http://www.nursingworld.org〉.

American Society of Addiction Medicine. 4601 North Park Avenue, Arcade Suite 101, Chevy Chase, MD 20815-4520. (301) 656-3920. 〈http://www.asam.org〉.

Division of Workplace Programs, Center for Substance Abuse Prevention, Substance Abuse and Mental Health Services Administration. 5600 Fishers Lane, Rockwall II Building, Room 815, Rockville, MD 20857. (301) 443-6780. 〈http://workplace.samhsa.gov〉.

National Clearinghouse for Alcohol and Drug Abuse Information (NCADI) Center for Substance Abuse Prevention. 5600 Fishers Lane, Rockville, MD 20857. (301) 443-0365. 〈http://www.health.org〉.

National Institute on Drug Abuse. 6001 Executive Boulevard, Bethesda, MD 20892. (301) 443-1124. 〈http://www.nida.nih.gov〉.

NSNA, National Student Nurses Association, 555 West 57th Street, New York, NY 10019. (212) 581-2211. 〈http://www.nsna.org〉.