COMSTOCK: Challenging pre-employment drug testing


For those who haven’t had the pleasure of undergoing a pre-employment drug screen, there’s a strong chance you might. Drug testing in the workplace has gone up an estimated 277% since 1987 according to the American Civil Liberties Union. In my case, I have been tested twice for private sector business positions.

Degradation and principles set aside, I wasn’t thrilled to have to drive to a Concentra testing center an hour away from my house without compensation for gas money to pee in a cup. Nonetheless, I followed the instructions while a nurse stood outside, “put all your belongings in this cubby, here’s the cup, don’t flush.” I already felt like I was doing something wrong despite just being offered an internship position.

Pre-employment and workforce drug testing is not viewed favorably among those who claim it is in violation of the Fourth Amendment that protects against unreasonable searches. Considering urine cannot only detect drug use but also pre-existing conditions, pregnancy and legal drug use, the legal waters are undeniably murky.

Are people not entitled to privacy of their own bodily functions? Apparently not when a position entails operating machinery or a high security clearance, particularly within public sector jobs. The massive increase since 1987 likely correlates with President Reagan’s 1988 Drug-Free Workplace Act, that required federal contractors to be tested and for private firms receiving funding to at least implement a drug-free policy.  Interestingly, this act did not require these firms to start drug testing, only to develop a policy and protocol for when drug abuse is suspected or reported.

So the Drug-Free Workplace Act may have served as catalyst for mass implementation of drug testing policies, but financial factors are likely more at play here. In Wisconsin, firms can reduce their worker’s compensation costs as well as health insurance group rates by drug testing candidates and current employees.  According to drug testing companies like Quest, drug users are more likely to land the company a medical or injury bill.

To those who will inevitably fire back at the opposition and say drug users aren’t serious about getting a job, you might be right, but that’s not really addressing the correct question. Whether drug use is right or not doesn’t get at the entire issue: under what circumstances is a blatant violation of privacy permissible? Who has the authority to determine that? The issue has become particularly glaring with marijuana legalization. The question of how an employee could be terminated for use of a legal substance has yet to be definitively answered.

Some states have cited employment-at-will. In other words, they can choose to fire someone without needing to give a reason. There would of course be exceptions on the basis of disability, race or religion, but medical marijuana is not included in the Americans with Disabilities Act. Marijuana use is also against federal law meaning it would trump state law in this case. An employee in Colorado couldn’t be prosecuted for using the drug, but the employer must abide by both state and federal labor laws, and marijuana is classified as a schedule 1 drug.

Schedule 1 meaning it has no currently accepted medical use and potentially severe psychological or physical dependence. It’s worthy to note that marijuana is classified in the same category as heroin and ecstasy, and considered more dangerous than schedule 2 drugs including cocaine, methamphetamine and oxycodone. Obviously many states and District of Columbia disagree. Still, marijuana will potentially show up on a urine drug screen over thirty days after use while cocaine and methamphetamine will be out of the system in as little as three days.

While I’m aware I’m preaching to the choir of marijuana legalization advocates, these facts certainly call the effectiveness of pre-employment, post-accident, or random drug testing in the workplace. Are methamphetamine users less likely to miss work or have a health issue than an occasional marijuana user?

I think most would say no, but the drug testing system seems to give a pass to some. Is it either ethical or legal for a quadriplegic to be fired from his job for legal marijuana use? I view workplace drug testing as a policy that violates the most basic tenants of decency and rights to individual privacies. It looks like these policies will be continue to be challenged as we move into a global workplace that will simply be less tolerant of such invasive procedures.

In the meantime, drink lots of water.