Engs, Ruth C. [Ed.], Controversies in the Addiction's Field.Thomas J. Delaney Jr., CEAP. "Chapter 13: Drug Testing: Probable Cause Only."

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Chapter 13
Drug Testing: Probable Cause Only

Thomas J. Delaney Jr., CEAP

In July, 1983, President Ronald Reagan established a "President's Commission on Organized Crime."  President Reagan picked a long-time Federal Judge from New York City, Irving R. Kaufman as Chairman.  On April 3, 1986, the Commission issued its reports.  One of its four reports was devoted to drug abuse.  It was widely reported at that time (Panner and Christakis, 1986) that the Commission called for wide spread urine testing of employees to determine the presence of "drugs" in their bodies.  Interestingly enough, Judge Kaufman wrote an article (New York Times, October 26, 1988) seeming to distance himself from this thrust only months later.  Two quotes by Judge Kaufman himself should have given pause to the rush of drug testing.  They were:

      On September 15, President Reagan signed an executive order calling for drug testing of broad range of the Federal Government's 2.8 million civilian employees earmarking about $56 million for the undertaking in the first year.  The increased use of drug testing by government agencies and private employers- more than a quarter of the Fortune 500 companies test job applicants-is part of a larger trend in society's war on drug abuse, with a pronounced shift of emphasis to the drug user.  But to inquire whether someone is for or against drug testing in the workplace is really to pose a question without content, the variables are so great.  Is the drug test to be administered to Government workers- in which case the Fourth Amendment's protection from unreasonable searches and siezure must be satisfied-or to employees in private industry?  Does a given company intend to test its employees at random or will a worker be asked to submit to urinalysis only when he exhibits some sign of drug abuse?  Are employees to be included in the screening or only job applicants? (1988, p.52).
After a lengthy article, Judge Kaufman then concludes:
            Unfortunately, the debate on drug screening has been rich in emotion and hyperbole.  Not all proposals for drug testing are the brain

child of Big Brother or a knee-jerk reaction to saturation media coverage of drug abuse.  Some screening programs may genuinely represent an effort to keep the workplace drug-free in order to insure safety and improve performance.  But, Heightened sensitivity to concerns about privacy, accuracy and legality are indispensable (p. 69).

     Perhaps Judge Kaufman was a minorty on his own commission.  Perhaps, as a long time jurist who committed his career to justice for all Americans, he was shocked how this one part of the Commission report was being used to turn a disease into a moral problem, embarking on a dangerous course of mixing private business with government law enforcement or to promote the worst motives of vengence and greed of the rich and mighty over the every day working person.  No matter what his motives, he was too late and the "horse was out of the barn".  Attorney General Meese was on the eve of recommending that employers search lockers and send corporate snitches to bars to root out the drug using fiends from factories and offices.  The First Lady was playing her best role in acting out grandmotherly fantasies to school children throughout the country with one line, i.e., "Just Say No."  And, in a greater Washington tradition of every "war", the profiteers and opportunists had smelled the opportunities available in the urine testing business.  Government careers and private fortunes have flourished in the insuring madness to impose random testing on American workers (only the alert lobbying of the Canadian Ambassador to the United States has thus far prevented efforts to export this hysteria to their countries).
     Perhaps the content of the Organized Crime Commission Report would have not even made a difference as long as drug use was defined as a criminal justice issue.  The history of public health is filled with successful examples of cooperation between health and police professionals to control plagues and other communicable diseases.  But a sense of history and balanced efforts are not ingredients of public policy making in an era of "spin doctors" and fifteen second TV "bits" back to the voters.
     In his October 1988 quotation, Judge Kaufman cites the number of Fortune 500 companies doing applicants testing.  He fell for a favorite ploy of the uring testing cartel.  In the second Reagan term, the government bureaucrats and the drug testing merchants were forever bombarding the press with announecments of Fortune 500 companies who were doing urine testing.  What kind of testing, how often, company wide or one small group, what happened to the results?  None of this mattered.  Clearly, the game plan was to stampede American industry to get on board.  They were told that this way was war against a foe that threatened the very existence of our society.  One call from the White House of Defense Department to the CEO


of a government contractor usually communicated the message.  Can we say that you are testing employees?  One or ten thousand did not make any difference, we will just announce that another Fortune 500 company has agreed to do drug testing.  If that did not quite do the trick, how would the CEO and his wife like to be considered for invitation to an upcoming function at the White House?
     Of course, there were a few left-wing extremists who thought that there might be some legal or constitutional objections to the drug testing.  This was essential if the Republic was to survive.  Some of them still cling to the widely regarded as naive assumption that courts dispassionately apply the appropriate laws to the facts of a particular case and render the decision demanded by the masses.  So, government spokespeople tell us that 80+% of Americans favor drug testing with the implication that this is supposed to mean something in applying the law.
     Judges, Senators, and Congressmen read papers, too.  The true believers in the urine testing crowd certainly were not going to pass up the opportunity to influence them.  The Attorney General would certainly appreciate the chance to tell his side of the story to your editorial board!
     In the latter half of the 1980's, there was an all out offensive to institute all kinds of drug testing in the American workforce.  (By the way, there was an interesting reaction in the State Legislatures where a number of bills were passed to assure that drug testing that was being pushed from Washington would be done fairly in their states.  The "test them all- what do they have to be afraid of" crowd in Washington is now pushing for a Federal law that would take away power of the States to enact safeguards in drug testing).  Although, American industry is increasingly questioning the utility of such tests, the drug testing advocates have not given up.  There is an awful lot of money still to be made from this.  However, a reader may legitimately ask, "What are the alternatives?  Isn't there a drug abuse problem in the country and isn't drug testing the way to get drugs out of the workplace?"
     There is not one but several drug problems in the country.  One of these is a major law enforcement problem.  It involves not only thge arrest of people who are violating drug laws but large numbers who violate other laws while under the influence of drugs or who committ crimes to support their habit.  But the criminal justice issues are beyond the scope of this paper.  They should also be beyond the role of employers and labor unions.  Those who suggest that there be random testing of employees are giving

support to those who would make employers and unions into arms of law enforcement.  Not only does that violate a long standing tradition in this country, but it opens up a "Pandora's Box" that will let out a police state in the United States.  Simple solutions to complex problems often produce more complex problems.  This would certainly be the case in random drug testing of employees.  As long as drug use is perceived as a law enforcement issue in this country, employers will do well to avoid random drug testing.  If not, the criminal justice system will want to access to test results.
     In a letter printed in the New York Times of October 4, 1986, Professor Leonard H. Glantz of Boston University well stated the problem with mixing law enforcement and job performance:
     "You also confound two separate issues when you introduce public safety concerns regarding the ability of certain individuals in delicate positions, such as air traffic controllers, to competently perform their jobs.  Random testing for illegal drugs is being sold as a public safety measure, but it, in fact, is a law enforcement measure.
     ...the proposed tests are for illegal drugs only...
     ...It should not be forgotten that the stimulus for the Federal Government's recent fervor for random urinalysis come from the President's Commission on Organized Crime.  It is a bad idea as a matter of both law and policy to turn employers, either public or private, into arms of law enforcement agencies.
    ...the recent drug-testing craze turns our attention away from the job essential and more complex issue of how accurately is assesses job performance."
     Indeed, the "Achilles' heel" of random testing is the lack of a sound basis to link drug use with impaired job performance.  In the Washington Post on September 24, 1986, nationally syndicated columnist Judy Mann, quoted the legal director of the American Cilvil Liberties Union, Arthur Spitzer, as saying:
     "If employers and the government were really concerned, they'd be developing performance-related tests so that when an air traffic controller shows up to work, he'd have to pass a five minute test on hand-eye coordination, vision-tests that tell us whether a person can perform.  If he can't, then he shouldn't be performing that day regardless of whether he's used drugs in his life.  Maybe he was up all night or fighting the flu."
      What Mr. Spitzer is describing is just plain, good management.  A worker should be hired, compensated, and disciplined based on whether he

or she can do his/her job.  The score on a urine test is irrelevant.  Good management is practiced by supervisors in many organizations.  That is why, contrary to the pronouncements for the White House and its neighbor across Lafayette Park (where federal agents lured a young man in order for President Bush to show seized cocaine to a national television audience), and the United States Chamber of Commerce, most supervisors and employers are ignoring the pressure to drug test.  A very good "front line" explanation is contained in an article in the magazine Inc. (Maltby, 1987). Here are some quotes from this article:
      "Instead of testing for what really matters-impairment-drug testing looks for the presence of drug metabolites in the employees urine, which remain in the body for up to two months.  So, an employee who fails a drug test may not be impaired at all.  Firing good, sober employees for something they might have done last Saturday does not increase safety.
     ...Drug testing may even decrease safety.  Any experienced manager knows that a safe quality product and a safe work environment do not come from a demoralized, unhappy workforce.  But this is exactly what drug testing produces.
     ...we try to screen out the drug abusers.  Not by telling us directly, of course, but by learning about which applicants had chronic absenteeism, inconsistent quality, and bad work habits at their former job.  And we find out with much more accuracy than we could with a hit-or-miss drug test.
     ...Most of our supervisors have taken a 36-week intensive managment-training course to help them (judge job performance).  If an employee's performance consistently falls short of our expectations, then the supervisor sits down with him or her and discusses the problem.  When employees are open with supervisors-as is often the case-and the problem is drugs or alcohol, we help get them into a treatment program."
     Many readers who are knowledgeable of the evolution of efforts to identify and rehabilitate workers with alcohol and drug problems, will recognize much of what Mr. Maltby does as elements of an employee assistance program (EAP).  Although Mr. Maltby does not identify himself as the EAP coordinator at Drexelbrook, he probably is because a small (300 employee) company can have a trained human resource expert take on the EAP duties in conjunction with other duties.  It is necessary that the person have the commitment and training that he obviously does.  In most cases, a company of that size will contract with an EAP service firm.  In any case, this type of EAP approach is much more effective and less disruptive than a program of random drug testing.
     The senior EAP authority in American universities is Dr. Harrison Trice of the School of Industrial and Labor Relations at Cornell University.  He has been studying the phenomenon of alcohol and drug use in the American workplace for over 40 years.  In the 1970s, he and Dr. Paul Roman (now at the University of Georgia) authored the seminal text "Spirits and Demons at Work."  This book should be  required reading for would-be drug policy makers in Washington.  More recently, Trice co-authored the article "Lessons from EAPs for Drug Screening"  with his Cornell colleague Dr. William J. Sonnenstuhl, which appeared in the ILR Review.  The following excerpts from the article should amply demonstrate that random urine screening for drugs in workers is misguided, at best.
     "A well-run EAP is sufficient for the identification of drug users in companies where there are few or no dangerous jobs- for example, universities, Wall Street firms, factories, service occupations, broadcasting, and retail stores.  This is possible because supervisors properly trained in constructive confrontation are eqipped to break through the denial systems of users, abusers and addicts-regardless of the drug in question"(1986).


Glantz, L.H. (1986).  Employers Should Not Be Law Enforcers. The New York Times.
Kaufman, I.R. (1988). The Battle Over Drug Testing.  The New York Times, October 26,  p.   52-69.
Maltby, L.L. (1987). Why Drug Testing Is A Bad Idea.  Inc., pp. 152-153.
Mann, J. (1986).  Politicians' Handy Drug War.  The Washington Post.
Panner, M.J. and Christakis, N.A. (1986). The Limits of Science in On-The-Job Drug Screening. Hastings Center Report, pp. 7-12.
Sonnenstuhl, W. and Trice, H. (1989).  Lessons from EAPs for Drug Screening. ILR Review, pp.25-29.


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