Drug testing seems to be, as always, a hot item. Many employers are now asking for provisions to allow random testing. Even though employers throughout the state are moaning about how hard economic times are, it seems to be no problem finding the money to implement a random drug testing program, even though the costs of such a program can be quite significant.What do you do if you are presented with a proposal from the employer to implement a random testing program?

Random drug testing does not necessarily measure impairment. The drug tests do not necessarily detect drugs; they detect drug metabolites, by-products that are produced from the body for a time after the drug was ingested. As a result, a drug test may identify somebody who used a drug while off-duty, but gives no indication whether the person was in any way impaired while on the job. Even the types of drugs being used can affect the test results. For instance, marijuana is detectable much longer than some other drugs. A person who uses marijuana and takes a drug test a week later is much more likely to be detected for his drug use than a person who uses cocaine and takes the drug test a week later.

Employers often cite statistics showing that workers who use drugs are less reliable, have higher absenteeism rates and higher accident rates, and contribute disproportionately to the cost of benefits such as sick time and health care. But obtaining empirical evidence on the effects of drug usage and the effectiveness of drug testing, particularly random drug testing, is difficult. Indeed, it appears that such statistics are often based on conjecture and speculation more than actual, valid scientific findings. In Drug Testing, a Bad Investment, a report issued by the ACLU in September, 1999, the authors noted that factual, scientific studies indicated that there was no clear evidence of the deleterious effects of drugs (other than alcohol) on safety or other job performance issues.

Moreover, the study indicates that the costs of random testing may dramatically outweigh the benefits. As the article indicates, if drug testing is to be cost-effective, it should “identify a significant number of drug abusers who, absent a testing program, would be identified much later, or not at all.” As the article notes, the federal government in 1990 spent $11,700,000 to administer tests in 38 different agencies. A total of 153 tests were reported as positive; essentially the government spent almost $77,000 to find each drug user.

If supervisors are properly trained, they should be able to identify individuals who are under the influence or are impaired, and testing can proceed under the reasonable suspicion standard. Absent some showing that random testing will produce significant results, one ask the employer as to whether the costs of a program might outweigh the benefits. These costs include not only the costs of testing itself, but the time lost for individuals who are required to submit to testing and morale problems caused by a random testing program. As noted in the ACLU article, “Drug testing, particularly without probable cause, seems to imply a lack of trust, and presumably could backfire if it leads to negative perceptions about the [employer].” Many employees have concerns about random testing, including a suspicion that the employer can somehow influence the selection process so that certain people seem to be “randomly” selected more often than others. In addition, although random testing may be constitutional, it still involves an invasion of privacy and contradicts the traditional American ideal that a person is innocent until proven guilty.