Alcohol and Drug Testing

In a twenty-year stretch that began in 1950 with Bing Crosby crooning his way through "White Christmas" and ended with Creedance Clearwater Revival banging out "Bad Moon Rising," the United States saw a virtually unprecedented rise in illicit drug use. According to the 1998 National Household Survey on Drug Abuse, in 1962, about 4 million Americans had tried an illegal drug. By 1998, the number who had done so (not including those who didn't inhale) was just over 78 million people. ^[9]

Blame It on Vietnam (or the Sixties)

Much of the growth in drug use occurred in the middle and late 1960s, when a wide variety of social factors encouraged enthusiastic experimentation in sex, drugs, and rock and roll. At the same time, more than 8,000 miles away, over 50,000 Americans were dying in a steamy jungle nation called Vietnam. As a large number of books and movies have made painfully clear, the daily reality of fighting in Vietnam was so fundamentally horrific that virtually any altered reality was preferable.

As a result, the military became the front line in the nation's battle against illegal drug use. As concern grew about the use of drugs (particularly heroin) in Vietnam, the Department of Defense began a preliminary program in 1972 to test soldiers for drug use. For various reasons, that program was not aggressively implemented. The situation changed in 1981, however, when a pilot crashed a jet while landing on the aircraft carrier Nimitz. The crash killed fourteen people, injured forty-eight others, destroyed seven planes, and badly damaged a number of others. After drug testing revealed the compound THC (the active ingredient in marijuana) in a number of the deceased (including the pilot), the DOD's support for random drug testing grew, and by the end of that year, the military had implemented a wide-ranging random drug-testing program. Over the next six years, according to DOD surveys of military personnel, drug use declined dramatically. In 1986, for instance, only 4 percent of those tested were positive for drug use.

Encouraged by its success with the military, the federal government imposed mandatory drug screening requirements for all federal employees in 1986. Eight years later, legislation extended mandatory testing to every industry regulated by the federal government, including nuclear energy, petroleum, aviation, railroad, maritime, and road transportation.

Public sector employees made some efforts to challenge random drug testing programs as an invasion of privacy under the Fourth and Fourteenth Amendments. However, in a pair of 1989 decisions, the U.S. Supreme Court upheld the concept of random drug testing in unusually broad language. The first case, Skinner v. Railway Labor Executive Assn., dealt with a challenge to the government's practice of drug testing the entire crew of a train following an accident. ^[10] The second case, National Treasury Employees Union v. Von Raab, was brought by a group of U.S. Custom Service employees who objected to the Service's practice of testing any employee who applied for a promotion. ^[11]

In each case, the Court rejected the challenge. According to the Court, a drug test is in fact a "search" within the meaning of the Fourth Amendment and thus must be "reasonable." However, the Court also concluded that "neither a warrant, nor probable cause, nor, indeed, any measure of individualized suspicion is an indispensable component of reasonableness in every circumstance." Thus, as long as the federal government can demonstrate "special needs," it is entitled to disregard traditional constitutional protections, at least insofar as your urine is concerned.

Even for the federal government, however, the ability to conduct random drug testing is not unlimited. Although this is still an evolving area of the law, it is clear that there must be some legitimate relationship between the drug-testing program in question and the government's claim of "special need." In general, federal courts have upheld drug-testing programs for jobs that involve the following: public safety (i.e., transportation jobs); firearms (i.e., prison guards or police officers); and/or access to top-secret information (i.e., Department of Justice lawyers with high security clearances).

Urine Trouble: Be Careful Which Bagel You Choose

On October 2, 1982, at about the same time that the military was dramatically expanding its random drug-testing program, President Ronald Reagan announced the War on Drugs. Even the most rosey-eyed public policy nerd would be hard-pressed to declare the twenty-year-old war a victory, or even a significant holding action. Apart from incarcerating an unprecedented number of Americans, the war's most tangible by-product has been cheap and readily available drug-testing technology.

The low cost of drug testing today (a simple do-it-yourself urine testing kit can be purchased today for as little as ten dollars, although laboratory tests typically run forty-five to fifty dollars) is a perfect illustration of the principle that in the absence of well-crafted legislation, high-priced technology is the best protection for employee privacy. Time and again, employers have demonstrated that as the cost of implementing a new surveillance technology drops, the number of businesses adopting the new technology vastly exceeds the number of businesses that actually need it. Call it keeping up with the corporate Joneses, call it an excess of caution in a litigious world, call it impressive salesmanship on the part of security companies, but time and again, a drop in the cost of surveillance technology has been matched by a corresponding drop in workplace privacy.

Given the low cost and ease of use, it's not surprising that the frequency of workplace drug testing has steadily increased; according to the American Civil Liberties Union, in the dozen years from 1987 to 1999, the amount of workplace drug testing in the United States nearly tripled. Larger corporations are particularly enthusiastic drug test users: Nearly 100 percent of Fortune 500 companies conduct preemployment drug tests and/or random drug tests of workers. By contrast, only 3 percent of small businesses do drug testing.

Private employers have powerful motivations for conducting drug testing: According to the National Institute of Drug Abuse, there are approximately 11.7 million active drug users in the United States today, and three-quarters of them are employed. As many as 23 percent of the employed drug users use illegal drugs while on the job. In 2001, the U.S. Department of Labor's Bureau of Labor Statistics estimated a short time ago that workplace drug use costs employers $75 to $100 billion per year in lost employee work time, accidents, health care costs, and workers' compensation claims. ^[12] Moreover, 65 percent of all workplace accidents are related to drug and alcohol use. ^[13]

With both the federal government and the private sector increasingly interested in conducting drug testing, a great deal of time and effort has gone into developing quick, easy, and inexpensive drug tests. Although scientists have developed techniques for testing a variety of substances for evidence of drug use—blood, urine, hair, saliva, and sweat—the U.S. Department of Health and Human Services declared in 1988 that urine was the only acceptable sample specimen for federal drug-testing programs. Most private companies have followed suit, in part because they prefer to use labs accredited by HHS, and because the focus on urine as the primary means of testing for drugs has helped to drive down the price of testing urine samples.

The most accurate type of test is a blood test, which shows whether a particular drug is actually present in the bloodstream (by contrast, urine is tested for drug metabolites, the by-products created after your body has absorbed and broken down the drugs). However, blood tests are perceived as invasive (which is quite literally true), and the information they provide, while highly accurate, is limited to a fairly short time frame (usually two to three days, depending on the individual).

Increasingly, companies are considering the use of saliva as a testing medium. Like blood, saliva is useful for showing recent drug use. For instance, if someone smokes a joint on his lunch break, the active compound THC will not show up in his blood until after he leaves for home, and the metabolites will not show up in his urine until much later that evening or the following morning (although they will remain detectable for a number of days). However, THC will be present immediately in his saliva (although it can only be detected there for twenty-four hours or so). Collecting saliva is also less invasive than drawing blood or collecting urine, and nearly as tamperproof. On very short notice, a nurse or lab technician can have you hold a swab between your lower cheek and gum for two minutes, seal the swab in a container, and send the container off to be tested. The cost of a saliva test for drugs is comparable to that of laboratory urine tests—roughly forty-five to fifty-five dollars per test.

Hair can also be used to detect the presence of drugs. From a collection point of view, hair is probably the least invasive means of testing, but it is also the most expensive and time-consuming. Nonetheless, some employers prefer using hair, primarily because of hair's superior ability to reveal drug use—depending on the individual and the amount of drug use, hair can reveal traces of drug use over a period of time as long as three months.

For a variety of reasons, however, urine has become the testing medium of choice. For companies that find even the cost of laboratory testing too high (or the turnaround too slow), an aggressive industry has arisen that produces and markets virtually instantaneous drug-testing kits. In just five minutes—and without the need to send anything to a laboratory—an employer can check to see whether an employee's urine exceeds the standards established by the Substance Abuse & Mental Health Services Administration (SAMHSA) limits for five different drugs: amphetamines, marijuana, cocaine, opiates, and methamphetamines.

One typical system is the QuickScreen Drug Test, produced by AAA Rapid Drug Testing Service in Key Largo, Florida. The kit consists of a collection cup (with a temperature sticker on the outside) and a test card with various panels for testing for different substances. The company claims that its most popular product is a five-panel card that tests for marijuana, cocaine, opiates, PCP, and amphetamines. ^[14] After the card is inserted in the urine sample, it indicates the presence or absence of drugs within three to five minutes. The cost is just fourteen dollars. With a little bit of searching, the same type of product can be purchased on the Web for just over ten dollars per unit.

The growth in the popularity of urine drug-testing kits has not been slowed very much by serious questions about their accuracy. For example, the Ontario Information and Privacy Commissioners' Office recently concluded that up to 40 percent of drug testing kits on the market produce inaccurate results.

One common error made by the test kits is to identify a common drug for Parkinson's disease—Depronil—as an amphetamine. Another is to mistake ibuprofen for marijuana. Even more disturbing is the potential (albeit remote) tendency of drug-testing kits to finger poppy seed bagel lovers as heroin users. As Cecil Adams, the marvelously sarcastic author of the syndicated column "The Straight Dope," puts it:

Let's not beat around the bush. The answer to [the] question is yes— eating a couple of poppy seed rolls, bagels, etc., can cause you to fail a routine drug test. This news will produce one of two reactions, depending on whether you're a law-abiding citizen or a drug fiend:

1. Panic (if law-abiding citizen): "I could lose my job by eating breakfast!"

2. Elation (if drug fiend): "I could keep my job by claiming I ate breakfast!"

So the real corporate drug test is to tell your employees about poppy seeds and watch their reactions. The happy ones get the ax. ^[15]

Other false positives can result from the presence in the urine of over-the-counter medications like Vicks Formula 44-M, Advil, Nyquil, Nuprin, Contac, and Sudafed. Even though no employer would (or at least should) base an employment decision on a single positive result (and 87 percent of all initial positives get reversed in a second test), the impact of even an initial false positive can be enormously destructive.

There are serious questions about the underlying validity of other testing methods as well, including hair analysis. In 1990, the Food and Drug Administration released a statement that read in part: "the consensus of scientific opinion is that hair analysis ... for the presence of drugs of abuse is unreliable and is not generally recognized by qualified experts as effective." ^[16]

Using hair to test for drugs also raises concerns about disparate impact. In addition to the fact that women tend to have longer hair than men (and thus can often be monitored for a longer period of time), there are also questions about whether hair color affects the extent to which medication and drugs can be detected. In the summer of 2002, the Boston Police Department (BPD) released figures showing that during three years of testing officer hair samples, forty-five officers tested positive for drugs. Sixteen of the officers were white and twenty-nine were minorities (twenty-six blacks and three Hispanics). The results were challenged by the BPD's association of minority officers and the NAACP, which argued that the color and structure of dark hair absorb and retain drug traces in higher quantities than light hair. They also suggested that dark hair retains drug traces for a longer period of time than light hair. ^[17]

There is considerable dispute in the scientific community over whether hair color does affect the extent to which drugs can be detected. In the case of the BPD tests, department representatives also stressed that the threshold for declaring a positive result is fairly high, and a retest is required to confirm the initial findings.

Drug Tests and Their Impact on Employee Privacy

As is frequently the case with difficult social issues, the increase in random employee drug testing has largely occurred without any significant discussion of whether the procedure actually reduces on-the-job drug use, and whether the inherent invasiveness of the tests are justified by their preventative capabilities. These are questions that have not been subjected to any type of rigorous debate.

From an employee's point of view, drug testing raises two separate privacy concerns: personal space privacy (your ability to be free from unwanted observation or invasion) and lifestyle privacy (your ability to engage in activities that do not impinge on your ability to do your job). The primary impact of the collection process is on your personal space privacy, and it can range from mildly inconveniencing to sharply intrusive. The primary impact of the drug test results themselves is on your lifestyle privacy.

Of the three most popular testing methods—urine, hair, and blood— the collection of a hair sample is by far the least immediately invasive of your personal space privacy. A pair of sharp scissors, a quick snip by a nurse, and you're done. But the limited privacy impact of using hair is outweighed by the factors of cost and time discussed above, leaving blood and urine as the more popular choices. The popular perception among both employers and employees is that collecting urine is less of a privacy infringement than drawing blood. On the surface, that's true: Having someone stick a needle in your arm and withdraw a vial of blood is more invasive of your personal space than collecting something your body wants to get rid of anyway.

But the provision of a urine sample is in fact a far greater intrusion of your personal space privacy than having a blood sample drawn. In case you haven't been exposed to an employment drug test, here's a quick rundown of what typically takes place:

• Your employer or prospective employer will ask you to report to a "collection site," which might be a company facility but which is more likely a doctor's office or clinic.

• You will be asked to show a picture ID and fill out a medical history questionnaire. Your signature on the questionnaire will typically allow the testing lab to share the test results and the information on the questionnaire itself with your employer.

• You will be faced with the question of whether to tell the testing facility about medications you are currently taking, because a number of prescription drugs and over-the-counter medications can easily be mistaken for illegal drugs. Of course, that information can and probably will be included in the report that is provided to your employer.

• You will be asked to take off your coat and store any personal belongings in a storage locker, to reduce the chances that you are carrying with you any substance designed to mask the presence of drugs in your urine.

• You will be given a small plastic cup, roughly the size of a juice glass, and directed to enter a bathroom stall or small lavatory. To prevent attempts to dilute your urine sample, many testing facilities shut off the water in the bathroom sink and dye the toilet water blue.

• You'll be given embarrassingly specific instructions on how to properly pee into the cup. This part of the procedure can be difficult for many people and excruciating for some, particularly those that suffer from "shy bladder" syndrome.

• You may be required to produce a urine sample in full view of an observer, whose job it is to make sure that no substitution or alteration of the sample occurs. (Despite the obvious intrusiveness of being asked to urinate on demand in front of another person, courts have been reluctant to uphold employee challenges to random drug testing.)

• The sample will be checked for color and temperature and sealed in a tamper-proof container, and you will be asked to initial the container to verify its proper handling.

• If your initial test is positive for one or more drugs, you'll be asked to take a second, more precise test. If that test is also positive, your test results will be reviewed by a doctor with experience in substance abuse. He will discuss your tests with you and try to determine if anything— including current medication or diet—might have contributed to a false positive.

The rise in the amount of drug testing has led to the development of an entire industry aimed at fooling drug testers. One of the most common techniques is to try to substitute a "negative" or "clean" urine sample during the course of the test. There are dozens, if not hundreds of companies that offer "clean urine" in either liquid or freeze-dried form, along with instructions on how to make the substitution. One typical example is Assured Testing Resources, which offers a complete urine substitution system for thirty-five dollars that is "So small, it fits in the palm of your hand!".

In addition, there are also a bewildering number of companies that offer products designed to mask or temporarily eliminate any evidence of drug use for a period of time, usually ranging from one to five hours. These substances range from pills and gel caps for urine tests to shampoos that will allegedly clean drug toxins from the hair for a short period of time. In addition, there are numerous websites that offer information and advice on beating urine tests. Needless to say, drug-testing technicians emphatically state that it is very hard, if not impossible, to successfully prevent the detection of drug metabolites in urine or hair.

Ironically, as the efforts to defeat or fool urine tests grow more elaborate, the level of scrutiny and intrusive observation will continue to increase. In the summer of 2002, for instance, while complying with a court-ordered drug test, a Texas college student was caught wearing a fake penis attached to a heat-controlled sample of synthetic urine. Known as "The Whizzinator," the device comes in five different skin colors and costs $150. The supervising probation chief admitted that he and his drug-testing technicians might have to pay closer attention to people while they take the test.

Not surprisingly, a handful of states—including New Jersey, Pennsylvania, Texas, and Missouri—make it illegal to use a device like the Whizzinator to fake a drug test. In May 2002, a man named Donald Milligan Jr. was charged in Cuyahoga County, Missouri, with "possession of a forging instrumentality," i.e., the Whizzinator. Milligan was caught, reports said, because the probation officer "was trained to observe the sights and sounds of urination."

The impact of a urine test on personal space privacy is obviously real, but at least it is of limited duration. The impact of drug or alcohol testing on lifestyle privacy in general is far more pervasive and long lasting. In theory, the point of alcohol and drug testing is to assess an individual's fitness to do his job. For most jobs, drunkenness or drug use on the job raises serious productivity concerns; for a small but significant percentage of jobs, it's potentially lethal. No rational person would defend the right of a school bus driver, for instance, to do his job while stoned. If an employer has any reasonable suspicion that someone is working while under the influence of drugs or alcohol, then requiring some type of test is a perfectly reasonable safety measure.

But it's far less clear that someone who got drunk or smoked marijuana on Friday night is incapable of performing his job on Monday morning, and the connection between an employee's casual drug use two months earlier and his ability to do his work on a particular day is even more tenuous. Employers seek this information, however, because they believe that it tells them something about the safety or security risk that their employees might pose on the job.

When it comes to lifestyle privacy, a blood test is the least invasive form of testing, because drugs generally pass through the blood stream in two to three days. Urine tests are somewhat more invasive, because the drug metabolites that show up in urine can linger for as long as a couple of weeks, depending on your weight and your level of drug use. But neither type of testing compares to the invasion of lifestyle privacy that results from testing a sample of hair: It's not uncommon for drug metabolites to remain in hair for two to three months, sometimes longer.

The other privacy issue raised by drug-testing programs is the potential for employers to test for medical conditions completely unrelated to drug or alcohol use. In theory, employers can't use random drug tests to check for other medical conditions, but it shouldn't come as a huge shock that it happens. In 1988, the Washington, D.C. Police Department collected urine samples from female officers for drug-testing purposes and then surreptitiously tested the same samples to determine if the officers were pregnant. And as we'll see, with the improvements in DNA testing technology, a single drop of blood or urine, regardless of the purpose for which it was originally collected, offers employers the potential to gather unprecedented amounts of private medical information about their employees.

When Employment Bias Is More than Skin Deep

Employment discrimination has (and continues to be) a long-standing problem in this country. Until recently, bias has been based on visible characteristics—skin color, gender, age, and disability. Although it took an unconscionably long time to do so, legislation was eventually adopted to make it illegal to discriminate against employees and potential employees on the basis of superficial criteria. Increasingly, however, the grounds for employment bias only show up in a medical laboratory.

One of the most egregious examples occurred nearly ten years ago, when workers at the Lawrence Berkeley National Laboratory at the University of California-Berkeley made a deeply disturbing discovery: For years, their blood had routinely been tested for evidence of syphilis, sickle cell anemia, and pregnancy. ^[18]

The testing came to light in 1994, when an employee named Marya Norman-Bloodsaw requested a copy of her medical records and noticed the code "RPR." Norman-Bloodsaw recognized the letters as the code for a syphilis test, but knew that she had not requested or authorized such a test, nor had she authorized other tests run on her blood. Nonetheless, as part of her required medical exam, her blood had been tested not only for syphilis but also for pregnancy and sickle cell anemia. Not only was she never notified that the tests were being conducted, she was not given any of the results.

Norman-Bloodsaw told some of her fellow employees about the secret testing and encouraged them to request copies of their own medical records. As the records were received, it became clear that the Lawrence Berkeley Lab had been conducting secret tests on employees' blood for at least thirty years. Even more disturbing was the clear implication that the testing was directed primarily toward African-American and Latino employees. For example, while all new hires at the Laboratory were tested for syphilis, only African-American and Latino employees were retested during subsequent exams (the only white males who were retested were those married to African-American women). Similarly, the only other regular blood screening that was done was for sickle cell anemia, which is a condition primarily associated with African Americans.

With the help of San Francisco's Legal Aid Society, employees filed a class action lawsuit against the Laboratory, arguing that the tests were a violation of their civil rights and an invasion of privacy. The Laboratory defended its testing program by arguing that it was conducted under the auspices of the U.S. Department of Energy and that by consenting to a comprehensive medical exam, each employee had effectively agreed to have such tests done. The Laboratory was successful in persuading U.S. District Court Judge Vaughn Walker to dismiss the lawsuit, but Judge Walker's decision was overturned by the Ninth Circuit U.S. Court of Appeals, which ruled that performing tests without the knowledge or consent of employees is unconstitutional.

Left unanswered was the question of whether the Department of Energy was secretly conducting a long-range study of disease patterns in minority communities. Contractors for DOE are given a guidebook for conducting medical testing, in which the DOE states that employee medical records are "considered valuable epidemiological research records." For many employees, the secret nature of the testing called to mind the notorious Tuskegee medical experiments, in which African-American men were infected with syphilis and then left untreated to track the course of the disease. Various other surreptitious government testing programs have also come to light recently, including one where scientists at the University of California-Berkeley secretly injected plutonium into state prisoners and mental patients to test human biology.

^[9]"Drug Use in the U.S.," Narcknowledge (2002). Available online at www.narcknowledge.com/druguse.html.

^[10]___U.S.___, 109 S. Ct. 1402 (1989).

^[11]___U.S.___, 109 S. Ct. 1384 (1989).

^[12]Judith A. Swartley, "Testing for Drugs," Plumbing & Mechanical (October 2002).

^[13]Les Rosen, "Intro to Drug Screening ...", HR Forum (August 1999).

^[14]Customers can also purchase testing panels for methamphetamine, barbiturates, benzodiazepines, and methadone.

^[15]Cecil Adams, "Will poppy-seed bagels cause you to fail a drug test?", Straight Dope website (April 3, 1998). Available online at www.straightdope.com/classics/a5_116.html.

^[16]FDA Compliance Policy Guide 7124.06, released on June 13, 1990.

^[17]Francie Latour, "Drug test for Hub officers stirs bias fear," Boston Globe (June 22, 2002).

^[18]Dana Hawkins, "A Bloody Mess at One Federal Lab," U.S. News and World Report (June 23, 1997).