Identification: Substances that can affect a human’s biological and neurological states. They may be organic, such as the chemical tetrahydrocarmabinol (THC), which occurs naturally in marijuana; or synthetic, such as amphetamines or sedatives, which are manufactured in laboratories.

Drugs can be swallowed, injected with a needle, applied to the skin, taken as a suppository, or smoked. Narcotics are any drugs that dull the senses and commonly become addictive after prolonged use. Authority to regulate drug use rests foremost with the federal government, derived from its power to regulate interstate commerce. Federal law prohibits and punishes the manufacture, possession, and sale of illegal drugs from marijuana to heroin, as well as some dangerous legal drugs.

The war on drugs originated in the 1960s when illicit drugs were becoming increasingly popular. The increase in drug use led the administration of President Richard Nixon to introduce comprehensive anti-drug legislation in what he called the War on Drugs.

Prior to the mid-1980’s, employee drug testing was a non-issue because only a very small proportion of the workforce was subjected to such testing. During the 1980’s several factors coalesced to make drug testing a major workplace issue. Increases in drug-related urban crime lead to an intensified “war on drugs” in the United States, which shifted its focus somewhat from attacking supply to attacking demand. Concerns were raise regarding public safety as the possible threat of “on-the-job impairment” especially in the transportation sector—was raised. Such testing was also justified in the name of enhancing employee productivity, and reducing the likelihood of employee theft to support drug habits.

A perennially controversial issue is who should be drug tested: job applicants, employees, workers in industries regulated by government, athletes, applicants for benefits, and in what circumstances: pre-employment, post-accident, with cause to suspect impairment, without cause, at random, or some combination.

The prevailing drug testing method of choice is urinalysis. After President Reagan Reagan’s announced his War on Drugs, the use of urinalysis drug testing in the employment setting exploded. Proponents of workplace drug testing through urinalysis argued that this was the most efficient means to resolve the problems of employees who use drugs. Urinalysis, however, cannot measure impairment on the job.

Privacy advocates argued that drug testing profoundly infringes on personal privacy in a profound sense. Drug testing is intrusive of the individual’s right to privacy. Such testing is especially intrusive when imposed randomly and without “reasonable suspicion.” Many employees forced to go through this process complained of the humiliating and degrading nature of the process.

Urinalysis testing can result in the collection of highly sensitive personal information, including whether a person may have consumed the drug or drugs being tested for during the recent past, and even from some time prior to this.

Drug testing also has the potential to affect more than only those who use illicit drugs. Urinalysis testing may also reveal medical conditions, such as epilepsy or pregnancy. Test subjects could be required to disclose use of legal drugs (such as prescription drugs and over-the-counter inhalants) that could, themselves, cause a positive result.

Widespread drug testing became politically popular as a simple, expeditious solution to a complex social issue. Privacy advocates questioned whether treating difficult social and workplace issues such as stress, inadequate employee counseling and the continuing failure to treat substance abuse as a health issue as opposed as a criminal matter, was the correct approach to the issues at hand.

Despite these concerns, both private and public sectors in the United States adopted urinalysis testing. Following President Reagan’s Executive Order, the use of drug testing in the private sector expanded rapidly. By 1987, nearly 58 percent of the largest U.S. employers had drug testing programs. Some of these firms were compelled to adopt drug testing programs because of new federal regulations mandating testing in industries such as railroads and trucking. Many others began to implement drug testing programs voluntarily, moved by the example of the federal government or the exhortation of political leaders.

U.S. corporations with testing programs said they adopted them to help curtail illegal drug traffic. They also said they implemented such programs to help enhance workplace performance through reducing accidents and improving productivity

Concern over the “pervasive” use of illicit drugs and seeking to reduce the demand for drugs led President Ronald Reagan to issue the executive order, “Drug-free Federal Workplace” in 1986, which required the leader of each executive agency to establish a drug testing program to detect illegal drug use by federal employees in sensitive positions. The executive order also authorized testing for all applicants to a federal executive agency. Simultaneously, the U.S. Department of Transportation issued regulations requiring drug testing for public transportation workers.

On April 11, 1988, the U.S. government adopted Mandatory Guidelines for Federal Workplace Drug Testing Programs. The guidelines apply to the following: certain executive agencies, the Uniformed Services (but excluding the Armed Forces) and any other employing unit or authority of the federal government. The guidelines do not apply to drug testing conducted under legal authority other than the executive order. The guidelines do not, for example, cover testing of persons in the criminal justice system, such as arrestees, detainees, probationers, incarcerated persons or parolees.

Current federal government drug testing policy: 1) provides for testing of government employees under a wide range of justifications; 2) provides for universal testing of applicants for government jobs; 3) obliges, not merely permits, government agencies to test for some drugs, and permits testing for others; 4) tests for certain illegal drugs only and does not apply to alcohol; and 5) the executive order and guidelines cover testing in the federal workplace only.

For any drug testing program, crucial issues that need to be resolved are what types of drugs are being tested for and what is the “threshold” concentration of each drug that will lead to calling a test result positive. Another issue is what type of testing method should be implemented: blood, urine, hair, saliva, psychological, breath. A third issue is that it must be determined what the testing is seeking to identify: present use, present use and present impairment, past use, or past use and past impairment. Fourth, it must be determined what the results of positive test results would be: dismissal, treatment, discipline, prosecution, refusal of benefits, or, denial of eligibility to participate in sporting events. Fifth, the decision maker must understand the scientific limitations of the testing method and carefully determine the precise goals of the testing program are prerequisites to any decision as to the effectiveness of a drug testing program.

In a case where the testing program that does not confirm positive results from screening, tests will be unacceptable because they generate many false positives. Urinalysis to confirm impairment would not be useful, even with the proper confirmatory tests, since urinalysis can show past use only. It cannot show either present use or present or past impairment. Finally, even a properly designed test intended to confirm drug use may nonetheless be unacceptable because of Fourth Amendment protections against unreasonable search and seizure.

To protect the rights of those required to take drug tests, several states have enacted employee or job applicant testing laws, which cover both government and private sector employers and employees. They extend the constitutional restrictions imposed on public sector employers to private employers. Some of the statutes were patterned after a model bill drafted by the American Civil Liberties Union (ACLU). No state has prohibited drug testing in the workplace. Various state laws require an employer to have some form of either “probable cause” or a “reasonable suspicion” to test an employee for the presence of drugs; restrict pre-employment testing; require a job offer before pre-employment testing; and restrict random testing.

Protecting health and promoting safety are often put forth as objectives of testing programs. These objectives have five aspects. First, protecting the safety of persons being tested when these persons might be injured through impairment (examples might include impaired driving or operating machinery in a factory). Testing drivers for blood alcohol is perhaps the best known example of drug testing. Second, protecting the safety of co-workers by detecting an impaired worker who might cause injury or death. Military service members, police officers, firefighters, train and aircraft crews are examples of those who could be endangered by impaired colleagues. Third, protecting the public safety by detecting impairment, or risk of impairment, in anyone whose impairment could harm the public—such as a truck driver, pilot, or train engineer Testing to detect blood alcohol levels is often justified using the public safety argument. Fifth, protecting the health of the person being testing. Test results could signal the need to help the person who tested positive. The use of certain drugs (nicotine, alcohol, cocaine, for example) can result in serious health problems.

Privacy rights advocates criticize the impact that drug testing has on personal autonomy. Drug testing coerces conformity and restricts autonomy. The issue of drug testing raises the basic issue of to what extent should governments or employers be allowed to use the coercive power of drug tests to restrict the consumption of substances? Is it sometimes right to coerce (to prevent impaired driving, for example), and sometimes wrong (to regulate the simple consumption of substances away from the workplace in situations that create no danger for others)?

Drug testing, many privacy rights advocates argue, supposes an employer’s (or government agency’s) right to exercise substantial control over individuals and to intrude into some of the most private parts of their lives. The technology of drug testing, privacy rights advocates argue, been allowed to shape the limits of human privacy and dignity.

In the mid-1980’s, as employers began implementation of drug testing programs, employees or their representatives instituted a number of court cases challenging these policies. Because much of the early testing was undertaken by public employers, or as the result of federal mandates, the early cases most often raised constitutional challenges, alleging that the testing violated workers’ Fourth Amendment rights to be free from unreasonable searches. This early litigation produced mixed results regarding the constitutionality of workplace drug testing; however, courts generally agreed that the testing implicated important privacy interests.

Critics of workplace drug testing framed their concerns primarily in terms of the threat to personal privacy and autonomy, identifying a number of ways in which the process of urinalysis drug testing infringed upon workers’ interests. First, they argued that the process of collecting urine samples implicates workers’ interest in their bodily privacy.

In 1989, the U.S. Supreme Court heard two cases that addressed the constitutionality of drug tests under the Fourth Amendment, i.e. Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) and National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989). Skinner involved a challenge to the constitutionality of regulations promulgated by the Federal Railroad Administration (FRA) requiring drug and alcohol testing of railroad employees involved in a major train accident. Von Raab addressed the United States Customs Service’s policy of requiring all employees transferred or promoted to certain positions to undergo urinalysis drug tests. Covered positions included those directly involved in drug interdiction, those requiring the incumbent to carry firearms, and those that entailed handling of “classified” material.

The Supreme Court in Skinner unambiguously recognized that the drug tests implicated significant privacy interests. It held that both the physical intrusion entailed in obtaining a blood sample, and the visual or aural monitoring of the act of urination required under the regulations infringed “expectations of privacy that society has long recognized as reasonable.” Because testing bodily fluids “can reveal a host of private medical facts about an employee, including whether he or she is epileptic, pregnant, or diabetic,” the Court found that the ensuing chemical analysis constituted a further invasion of privacy, and concluded that these intrusions “must be deemed searches under the Fourth Amendment.” The Court observed, however, that the Fourth Amendment proscribes only unreasonable searches and seizures. Emphasizing the safety-sensitive nature of the railroad workers’ jobs and the pervasive regulation of the railroad industry to ensure safety, the Court held that the government’s “compelling” interest in testing without individualized suspicion outweighed the workers’ interests in privacy.

The Court reached a similar conclusion in Von Raab, referring to a “veritable national crisis” caused by the smuggling of illegal drugs, and finding that the Government had a compelling interest in ensuring that “front-line interdiction personnel are physically fit, and have unimpeachable integrity and judgment.”

Despite the clear recognition of a privacy interest in Skinner and Von Raab, those decisions made it more difficult for workers to challenge drug testing policies under the Fourth Amendment by accepting as compelling justifications the employers’ asserted interests in safety in Skinner and in the “integrity” of the Customs Service in Von Raab. Prior to those decisions, published federal courts of appeals’ decisions on Fourth Amendment challenges to workplace drug testing were evenly split. In contrast, in the years following the Court’s decisions in Skinner and Von Raab, the courts of appeals overwhelmingly upheld government drug policies in the face of Fourth Amendment challenges.

Although the issue of drug testing may be largely settled as a legal matter, conflicts between employers’ exercise of control in the workplace and employees’ interests in privacy and autonomy continue to reoccur. New technologies offer an increasing number of ways to monitor worker activities both on and off the job, and the incentives for employers to use these technologies are significant.