Testing for Alcohol and Other Drugs

41. Limited Use, Availability of Impairment Testing

"Collecting information about the performance of impairment testing proved extremely difficult because the field is so small. Only a handful of companies have ever marketed impairment testing systems and there is no list of their names. However, the Institute conducted an extensive networking program based on our contacts in the field that identified what we believe to be every company that has ever marketed impairment tests. There are only 10 such companies. Of these, only 6 manufactured systems for employers. Three of these 6 are now out of business. This means that there are only 3 companies currently in business that provide impairment testing systems for employers.
"By contacting these employers, we were able to identify 18 employers who had used impairment testing. Of these, 14 employers participated in our study. One employer that had used impairment testing is now out of business. The remaining 3 employers declined to participate."

National Workrights Institute, "Impairment Testing: Does It Work?" (Princeton, NJ: NWI, undated).

42. Federal Rules Allowing or Mandating Drug Testing

"The federal government does not impose rules regulating or prohibiting testing in the private sector and instead gives direct governance to specific agencies for employees under their jurisdictions and to the states. Two federal departments (Department of Transportation and Department of Defense) require random drug testing for contractors and employees holding certain jobs and in certain circumstances (e.g., after an accident). In addition, there is a federal law (the Omnibus Transportation Employee Testing Act, Pub. L. No. 102-143) that requires testing for specific types of transit operators. For private industries, state laws cover drug testing for both job applicants and employees. The details of laws across states vary: Random testing may be explicitly prohibited but may also be required for certain jobs, such as school-bus drivers. Some states also have conditions detailing the confidentiality afforded to test results or the policies and procedures for conducting such tests (ACLU, 2000)."

Ramchand, Rajeev; Pomeroy, Amanda; Arkes, Jeremy, "The Effects of Substance Use on Workplace Injuries" (Santa Monica, CA: RAND Corporation, Center for Health and Safety in the Workplace, 2009), pp. 26-27.

43. Constitutional Issues Involving Drug Testing as a Condition of Receiving Federal Benefits

"Based on the case law analyzed above, state or federal laws that require drug tests as a condition of receiving governmental benefits without regard to an individualized suspicion of illicit drug use may be susceptible to constitutional challenge. Drug tests historically have been considered searches for the purposes of the Fourth Amendment. The reasonableness of searches generally requires individualized suspicion, unless the government can show a special need warranting a deviation from the norm. However, governmental benefit programs like TANF, SNAP, unemployment compensation, and housing assistance do not naturally evoke the special needs that the Supreme Court has recognized in the past.
"The implementation of governmental assistance programs and the receipt of their benefits do not raise similar public safety concerns as those at issue in Skinner and Von Raab. In implementing these programs, the government also does not clearly act as tutor or guardian for minors, as the Court considered important in Earls and Vernonia. Finally, the evidence, at least thus far, in Lebron has failed to show a pervasive drug problem in the subset of the population subjected to suspicionless testing that strengthened the government’s interests in Earls and Vernonia. Thus, if lawmakers wish to pursue the objective of reducing the likelihood of taxpayer funds going to individuals who abuse drugs through drug testing, legislation that only requires individuals to submit to a drug test based on an individualized suspicion of drug use is less likely to run afoul of the Fourth Amendment.94"

Carpenter, David H., "Constitutional Analysis of Suspicionless Drug Testing Requirements for the Receipt of Governmental Benefits," Congressional Research Service (Washington, DC: Library of Congress, January 19, 2012), p. 12.

44. Drug Testing as a Condition of Receiving Federal Benefits

"The Supreme Court, on a number of occasions, has held that government-administered drug tests are searches under the Fourth Amendment.14 Therefore, the constitutionality of a law that requires an individual to pass a drug test before he may receive federal benefits likely will turn on whether the drug test is reasonable under the circumstances."

Carpenter, David H., "Constitutional Analysis of Suspicionless Drug Testing Requirements for the Receipt of Governmental Benefits," Congressional Research Service (Washington, DC: Library of Congress, January 19, 2012), p. 2.

45. Drug Testing, Alcohol Testing, and the ADA

"Although most laws concerning drug testing are at the state level, federal law must be considered when employers do test for ethanol (i.e., alcohol). The Americans with Disabilities Act (ADA) (Pub. L. No. 101-336) protects individuals with disabilities from discrimination in the workplace. Individuals with current alcohol-induced impairments and past alcohol problems are covered under the ADA. Thus, applicants cannot be tested or questioned about alcohol-use disorders until after a job offer has been made, and, even then, the law restricts when and under what conditions employees can be tested for alcohol use and other alcohol-use disorders. Moreover, employment decisions, particularly negative ones, cannot be based on these test results unless the employer can establish impairment caused by alcohol use (Hartwell, Steele, and Rodman, 1998). On the other hand, use of illegal drugs and of prescribed drugs used illegally and the drug-use disorders associated with such use are not covered under the ADA."

Ramchand, Rajeev; Pomeroy, Amanda; Arkes, Jeremy, "The Effects of Substance Use on Workplace Injuries" Center for Health and Safety in the Workplace (Santa Monica, CA: RAND Corporation, 2009), p. 27.

46. Impact of Drug Testing for TANF Benefits

"Few proposals [to drug test applicants and recipients of TANF - Temporary Assistance for Needy Families] suggest child well-being improvements as a result of drug testing, though provisions for protective payees for children’s benefits are intended to ensure funds are spent on children’s needs. Proposals that sanction families by definition reduce the income available to the family and may therefore decrease child well?being. Sanctions and benefit decreases have been shown to increase the risk that children will be hospitalized and face food insecurity.42 An Idaho analysis also suggests that children may be harmed unintentionally by drug testing programs because parents may refuse to apply for benefits knowing they will face drug testing or may refuse to complete treatment.43 On the other hand, deterrent effects of drug testing may lead welfare applicants to reduce drug use, with potential positive effects for children."

"Drug Testing Welfare Recipients: Recent Proposals and Continuing Controversies," Office of the Assistant Secretary for Planning and Evaluation (Washington, DC: October 2011), p. 8.

47. Drug Testing of Pregnant Women and the Ferguson Case

"Ferguson v. City of Charleston (2001) is an important case in the family law domain because MUSC’s [Medical University of South Carolina] policy of testing pregnant women for illegal drugs raises issues at the intersection of public health and constitutional law. The public-health aspects concern the very real and significant risks to maternal, fetal, and societal well-being of drug use during pregnancy; in addition, the policy raises constitutional questions about what constitutes a reasonable search and seizure and women’ s privacy right to reproductive autonomy. Ultimately, the case addresses how best to strike the sometimes competing interests between mothers and their unborn children.
"Although the policy was discontinued before the Supreme Court’s ruling and the Court held the policy to be unconstitutional, all the components of the decision—majority, concurring, and dissenting opinions—point to ways in which a similar policy could be designed so as to avoid the constitutional pitfalls encountered by the policy in Ferguson (2001). The petitioners won, but their victory is likely to be short lived. Recent developments in a number of states, combined with ongoing public concern about drug abuse, especially by pregnant women, suggest that despite Ferguson’s outcome, pregnant women should not feel too secure from state intervention when receiving prenatal care. Such interventions are likely to have significant consequences for pregnant women’s legal rights, as well as for their health, their fetuses’ health, and their behavior during pregnancy."

Brian H. Bornstein, "Pregnancy, Drug Testing, and the Fourth Amendment: Legal and Behavioral Implications," Journal of Family Psychology (American Psychological Association, Inc: 2003), Vol. 17, No.2, p. 227.

48. Lab Certification Requirement

"In response to well documented quality problems in labs that were previously considered reliable, the federal government established certification programs. The U.S. Department of Health and Human Services has a program to certify laboratories.3 And the U.S. Department of Transportation has a program.4 Testing conducted by federal agencies or required by federal law must be conducted by certified labs."

Maltby, Lewis, "Latest Research Reveals New Problems with Drug Testing," National Workrights Institute (Princeton, NJ: March 2012), p. 1.

49. Effect of Workplace Drug Testing on Productivity

In a study of high tech industries, researchers found that "drug testing programs do not succeed in improving productivity. Surprisingly, companies adopting drug testing programs are found to exhibit lower levels of productivity than their counterparts that do not. The regression coefficients representing potential effects of drug testing programs on productivity are both negative and significant. Both pre-employment and random testing of workers are found to be associated with lower levels of productivity."

Shepard, Edward M., and Thomas J. Clifton, Drug Testing and Labor Productivity: Estimates Applying a Production Function Model, Institute of Industrial Relations, Research Paper No. 18, Le Moyne University, Syracuse, NY (1998), p. 1.

50. Emphasis on Drug Use Ineffective

"An evaluation of a Florida drug testing pilot found that those welfare recipients who tested positive for drugs had similar employment outcomes as others on TANF. Florida’s drug screening and testing pilot for TANF was implemented from January 1999 to May 2001. A total of 8,797 applicants and recipients were tested and 335, or 3.8%, tested positive for a controlled substance. Florida State University conducted an evaluation of the pilot and found that there was very little difference in employment and earnings between those who tested positive versus those who tested negative and concluded that the cost of the program did not justify the outcomes achieved and the program did not warrant full implementation.44, 45 The study’s a review of the research evidence concluded that drug use is not a major barrier to employment for welfare recipients.46 The authors of the Florida study caution that a disproportionate emphasis on drug use as a barrier to employment could be ineffective if other major barriers, such as physical and mental health problems, lack of job skills, and lack of transportation, are ignored."

"Drug Testing Welfare Recipients: Recent Proposals and Continuing Controversies," Office of the Assistant Secretary for Planning and Evaluation (Washington, DC: October 2011), p. 8.