Employee drug testing is searching your body without a warrant
Drug testing violates the foundation of American law, which is the presumption of innocence until proven guilty. There is also little if any evidence that they do what they are intended to do.
Most people would not let the police search their home or even their car without a warrant. Why then do we as a society allow employers to search our physical bodies without any cause at all, much less having a warrant to do so?
That is what happens when you take a drug test for an employer. Most employers require it, and the courts pretty much support them in this, but if enough people spoke out against drug testing it could possibly change.
When you object to drug tests in the workplace, people think you are either trying to hide drug use or that you are in favor of drug use. Yet we don’t have the same attitude about our homes or vehicles.
My objection to them is based on civil liberties. I do not use illegal drugs and do not want to encourage drug use, but I feel I have a right to privacy concerning what is inside my body at any given time. I have a right to do that in my home and in my car, and even on my person when walking down the street. Why does that right not extend to inside your body?
Now there are some occupations where it might make a difference. If you are flying a planeload of passengers or driving a bus full of people, the owner of those vehicles might have reason to make sure they are not allowing a druggie to drive. Other than that, I really don’t see how there is a valid reason for them.
Does anyone else see the irony (dare I say hypocrisy) in the idea that it is fine that an airline pilot may have gotten drunk last weekend, but it’s not fine that he might have smoked pot once a month ago?
There are three legal reasons for my belief that drug testing in the workplace is wrong.
First, the foundation of American law is that a person should be innocent until proven guilty. Forcing someone to take a drug test to get a job is presuming guilt until proven innocence. It goes against the foundation of American law. In the United States, you should never have to prove you are innocent. You don’t have to prove you didn’t commit a murder, rob a bank or whatever else. But you do have to prove you are innocent of illegal drug use to get a job. Now I know some will say employers are not the same thing as government. True enough, but why are we giving employers more rights than we give the government?
Second, it violates the fourth amendment, which states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
What is a drug test but an unlawful search without reason? Searching inside your body is even more personal than searching your home or car. It is a search without a warrant, which makes it unreasonable. There is also no probable cause, which is required for a search.
I would say that an employer should have the right to require a drug test if they suspect drug use, and have probable cause for that suspicion. They should, however, be able to put those reasons in writing and put it in the record before a search takes place.
Third, it violates the fifth amendment which says in part:
nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law;
What is a drug test but testifying against yourself? I will admit this is not as clear-cut as the fourth amendment, but I think there is a case to be made. It also denies access to due process. You are being required to prove your innocence without even being accused of a crime.
If a person wants to engage in drug use on the weekends, or after working hours, and it does not affect their job performance, what business is that of an employer? Is that not a violation of being deprived of life, liberty and the pursuit of happiness?
Drug tests are also limited usually to specific drugs, like meth and marijuana. It is ironic that you could be so drunk on alcohol you could not stand up, but you would still pass most drug tests. The fact that alcohol is glorified in our culture, but using marijuana can keep you from getting a job, seems too ridiculous to even believe it is real.
There are some limitations on how drug tests can be given to current employees. With current employees, there does need to be a probable cause, unless employees are notified that there will be random tests given.
Unions in some cases have argued against drug tests, and that can be part of a union contract. But for the most part, at present, employers have the legal right to require drug tests. Employers are private businesses and can have whatever requirements they want, except for reasons of race, religion and so forth. That does not make it right. Employers used to be able to not hire black people because of their race.
Debra Comer argues in her dissertation “A case against workplace Drug Testing,” at Hofstra University, that there is no empirical evidence that use or exposure to drugs has a negative impact on job performance. It certainly can if a worker is under the influence at work, but there is no evidence that this is the case from having used drugs and not under the influence at the time. The also argues that singling out certain drugs would not deter the use of other drugs, for instance.
She also argues that drug tests could have a negative impact on workers attitudes, and that might actually affect performance more than occasional recreational use of a drug.
An article in Business Insider questions whether the cost is worth it, to catch a single drug user who may or may not be impaired on the job. It notes that 40 percent of American workers are subjected to drug tests, which is a lot more than any other country.
The reasons for drug testing, according to the article, are:
One is that companies still mistakenly believe in its effectiveness. Another is that some insurance companies might give discounts to employers who test. But the third is more political, more symbolic: Some companies use it to project a clean-cut, anti-drug image.
The article notes there is little evidence that drug use is deterred at all since a person can usually avoid drug use for a certain amount of time before the test, and then start using the drug again immediately.
An article in Slate Magazine also questions the effectiveness of drug tests. It notes that it all started 30 years ago when federal employees started getting tested, and that migrated to the civilian workplace. This also created a cottage industry that is making a very nice profit.
In other words, the drug testing of employees isn’t so much a thoughtful labor policy as a compulsive habit. It’s something that we do because we’ve always done it, and we don’t know how to stop. Testing has become a national addiction, and it may be time to taper off.
We can see then there are legal arguments to be made against the validity of drug testing in order to get a job. There is also a legal case to be made against testing current employees without a reason for doing so.
We can also see that the testing is largely ineffective.
Why then, are we putting up with this?
I would also appreciate any comments you may have.