It is the aim of most employers to reduce the risk of accidents and mishaps. Employees who come to work under the influence of drugs present a serious danger to their colleagues—especially if heavy machinery and hazardous materials are used on the job. Not even the high-end service professions are impervious to such a menace, which is why on site drug screening is so prevalent. Office workers who show up with drugs in their system can cost companies significant amounts of money through incompetence, mismanagement, and workplace disruption.
The intentions of private businesses may seem reasonable and justified, but the legality of their actions is much more complex.
Until the mid-1980s, the lower federal and state courts had a history of striking down mass drug-testing programs. The Constitutional basis for these decisions is quite clear. The Fourth Amendment 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.”
Without probable cause, the courts held, no authority, private or public, had the right to search persons without their consent. A university system, a city fire department, and a regional school district all argued that taking urine samples was prompted by a compelling interest. The courts disagreed, however, and ruled that individuals had a reasonable expectation of privacy as college students, public servants, and school children.
The consistency of lower and appellate court rulings upholding the principle of unreasonable search and seizure made what appeared to be an established precedent. This began to change in the late 1980s. Basing their rulings on a Supreme Court decision that affirmed the military’s policy of drug testing, lower courts began to apply an “administrative search exception”. The idea here is that under certain circumstances the state’s interest in protecting the public is strong enough to outweigh concerns about individual privacy.
Soon lower courts began to invoke this principle in cases in which it could even remotely apply. The so-called War on Drugs was partly responsible for driving this new consensus. The increased awareness and outrage of the public at the violence and depredations associated with drug-use inspired a zero-tolerance policy in most workplaces. And the courts could not long remain untouched by this sudden and sweeping change in public opinion.
The 1990s saw an increase in the number of rulings upholding the legality of mandatory drug testing. The Supreme Court completely obliterated the privacy rights of federal employees. And, citing the need to help a school district combat a drug problem that it claimed had reached epidemic proportions, it removed all barriers to student urinalysis.
The courts have made no significant reversal in their rulings. Government-run institutions must show some compelling interest or sound justification for administering drug-testing programs. If they do so, then they are free to establish whatever kind of drug-testing scheme they deem appropriate.
In the private sector things are quite different. There is almost no limitation on the right of private employers to adopt mandatory drug testing programs. The public’s suspicion and fear of any attempt to put individual rights over the need to identify and stigmatize persons who have taken drugs has continued unabated. This popular support for drug testing has given employers a blank check to do as they like on the matter.
But there is still the Constitution, and there are still individuals willing to challenge the power of organizations to infringe the privacy of individuals. Indeed, some argue that mandatory drug testing is a violation of both Fourth and Fifth Amendment rights. They cite the clauses in the latter which state that “[No person 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…”
There are two things here. The right of persons not to turn witness against themselves, which, some argue, submitting a urine sample forces people to do. There is also the issue of due process. Although no employer needs to give a reason for not hiring a person or for firing someone, a candidate or employee may be able to challenge such a decision if it is the result of a drug test. The individual in question can challenge the validity of the result or point out the fact that they were given no opportunity to respond to the charge of drug use.
One of the most objectionable things about drug testing is that it puts employees in the position of being guilty until proven innocent. Most people submit to such testing. Very few persons are willing to put up a fight when they are asked to submit a sample. However, over the last decade or so a few brave souls have been willing to re-open the debate over the legality of drug testing in the workplace. They have met with mixed results.
In 2001, the Supreme Court held that a public hospital’s policy of subjecting pregnant women to involuntary drug testing was a violation of the Fourth Amendment. In 2002, the Supreme Court upheld a schools suspicion-less drug testing policy. In the same year, the Court held that Michigan’s policy of randomly testing welfare recipients was unconstitutional.
Indeed, the changing nature of the Court has a great deal to do with the shifting direction of their decisions. Whatever else they may disagree on, the liberal and conservative justices seem to be of one mind when it comes to an interpretation of the Fourth and Fifth Amendments that is favorable to individual privacy. There has also been a more vocal challenge to the validity and results of the War on Drugs. Politicians and governments of all stripes and persuasions are starting to doubt whether the over-criminalization of drug use is sustainable. This has led to the decision of many businesses and other organizations to ban drug testing on principle.
For the first time in nearly thirty years, the legality of drug testing is on shaky ground. The coming years will determine whether its legal foundations fall completely to pieces.