FBI Director James Comey may have gotten into hot water for publicly questioning the practice, but Fourth Amendment advocates have been fighting workplace testing for years.
A simple search for “how to pass a drug test” on YouTube yields no less than 50,000 results. From guzzling cranberry juice to strategically catching your urine “mid-stream,” strangers from across the nation are at the ready to teach you how to artfully convince your employer you don’t like to get stoned. And at least one person in the American government appears to share the public’s frustration with drug tests. FBI Director James Comey subtly spoke out against drug testing last week, claiming it was hindering his ability to fight cybercrime. “I have to hire a great work force to compete with those cyber criminals,” he said. “Some of those kids want to smoke weed on the way to the interview.” After taking considerable heat for the comment from certain senators, the 53-year-old New Yorker sought to explain himself, saying he was “trying to be both funny and serious.”
But a study out of Notre Dame this month appears to offer some support for the much-maligned tests. “The rise of employer drug testing may have benefited African-Americans by enabling non-using blacks to prove their status to employers,” writes Dr. Abigail Wozniak. Among low-skilled black men, she found, drug testing increased employment in the testing sector from 7 to 30 percent, upping wages by as much as 14 percent.A byproduct of the war on drugs, drug testing is mandatory only for government employees, but the practice remains a nationwide phenomenon, affecting job candidates from McDonald’s to The New York Times. Despite the benefits of the practice, such as those outlined in Wozniak’s study, it is considered by many to be an infringement on Fourth Amendment rights. And with a poor efficacy rate, inability to track new synthetics, and dearth of research proving its effectiveness against drug use, America’s continued dependence on drug testing seems puzzling. In this “Just Say No” society, are we addicted to drug testing?
The first drug tests in America were developed by the military in the late 1970s, a response to the sudden spike in heroin abuse among soldiers in the Vietnam War. The tests, which were soon administered to anyone on active duty in the military, were shown to succeed at reducing drug abuse in the armed forces. In the early 1980s, on the heels of that success, other employers began dabbling in the process. The Federal Railroad Administration, under pressure after a series of drug- and alcohol-fueled crashes, was the first on board.In the early years of testing, the validity of searching an individual without probable cause, as mandated by the Fourth Amendment, was called into question repeatedly. In response, on September 15, 1986, President Reagan issued Executive Order 12564, titled “Drug-Free Federal Workplace,” which mandated drug tests for safety-sensitive executive-level and civil service federal employees. But the fight against the legality of the tests continued. In the 1988 case Skinner v. Railway Labor Executives’ Association, the question was finally brought to the Supreme Court, which defended the constitutionality of drug testing.
Soon after, Congress passed the Drug-Free Workplace Act—still in effect today—which requires recipients of any government money to “maintain a drug-free workplace.” In 1989, the National Treasury Employees Union challenged that law, arguing it was an infringement of the Fourth Amendment. For a third time, the Supreme Court upheld the constitutionality of searching a person without probable cause.
With the legal foundation finalized, the trend took off. By 1996, the American Management Association reported that 81 percent of companies were using drug-testing procedures, up from just 21 percent in 1987. While these numbers have dropped significantly in the almost two decades since, more than half of employers in the U.S. still rely on drug testing. According to a recent poll by the Society for Human Resource Management, commissioned by the Drug and Alcohol Industry Testing Association, 57 percent of employers in America now require job candidates to be drug tested at an average of $50 per person. The result is a drug-testing market worth $2.6 billion in 2012 and projected to reach $3.6 billion by 2018.
It’s a hefty cost for a procedure with few proven benefits. And many drug policy experts, including Mark Kleiman of the University of California Los Angeles, are skeptical. “The research basis underlying the huge enterprise of pre-employment drug screening is extremely thin, bordering on nonexistent,” says Kleiman. “If I were an employer, I’d want some strong evidence that testing has enough benefit to justify its costs. That’s especially true for cannabis.” Marijuana, which can show up on urine tests anywhere from one week to several months after use, poses a particularly difficult challenge for employers, many of whom—including, apparently, the FBI’s Comey—understand and accept their employees’ desire to use marijuana recreationally.
It’s a cause the American Civil Liberties Union has been fighting fiercely for more than three decades. In a widely cited 1999 report, the ACLU documented how the practice infringes on privacy. Most recently, the ACLU’s drug testing efforts have centered on the underprivileged. Jason Willamson, staff attorney for the Criminal Law Reform Project, is strongly against it. “We’ve been disturbed by the spate of drug testing for a while,” he says. “There are real questions about the accuracy, the efficacy, and whether it will help the state achieve what it’s trying to achieve. Even if you believe there is some drug epidemic happening in a certain demographic…there’s nothing to suggest that taking a drug test will help the problem,” he says. Williamson points to the political landscape as one of the driving forces behind the survival of drug testing. “You have a lot of politicians who get behind it because there is no political risk involved,” he says. Fighting for bills that claim to reduce drug use and save the state money, candidates can appear both money-conscious and drug-conscious. “We think there should be a nexus between the actual work people are doing and the relevancy of drug abuse,” he says.
Dr. Wozniak, whose study received considerable praise in the media, says she disagrees. A labor researcher, she was inspired to begin an analysis on drug testing five years ago, after hearing from many underprivileged black men in South Bend, Indiana, that drug testing was keeping them from getting work. But what started as an investigation into the potential pitfalls of drug testing resulted in just the opposite, she says. “It became apparent that there was another side of the story: There’s a large group of people benefitting from it,” she says. “They may not even know it.” While Wozniak won’t claim a personal stance on the issue, she says she believes that more research is warranted. “In contrast to criminal background checks, this picks up recent behavior,” she says. “And despite some of the myths, it’s not wrong. People don’t fail drug tests by mistake.”
Still, she acknowledges the pitfalls and shortcomings of the tests, including their low efficacy. “The false negative rate is extremely high. Forty percent of people who have marijuana in their system will pass,” she says. “I think that’s what fuels the whole ‘cheating phenomenon.’” In reality, she explains, “cheating” a test is impossible.
“In contrast to criminal background checks, this picks up recent behavior. And despite some of the myths, it’s not wrong. People don’t fail drug tests by mistake.”
Robert L. DuPont, M.D., the first director of the National Institute on Drug Abuse, voices his support for drug testing in an interview with Addiction Professional. “[Drug testing] is vastly underutilized, both in terms of prevention and treatment,” he says. “Although drug testing is not a magic bullet that solves all of the problems associated with substance use disorders, drug testing is essential for the identification of recent drug use in all settings in which drug—and in many cases, alcohol—use is problematic.”
A white paper, published this past December by the American Society of Addiction Medicine, the nation’s largest organization of physicians specializing in addiction treatment, expands on that concept, arguing in favor of the “science of drug testing.”
According to the recent Society for Human Resource Management poll, drug testing results in a 50 percent decrease in absences at companies with high rates of it. Job performance seems to be less affected by drug testing, with 19 percent of companies reporting an increase in productivity. The poll’s lead author, the Drug and Alcohol Testing Industry Association chairman Neil Fortner, summarizes the results: “The data show that drug testing may yield a high return on investment by creating a more stable, productive and safe workplace.”
But the arguments over drug testing may cease to matter if the synthetic drug epidemic continues. With more than 300 synthetic cannabinoids in use today, drug-testing companies are struggling to keep up with the new varieties. The majority of drug tests in America screen only for the five main abused substances—heroin, cocaine, marijuana, methamphetamines, and opioids (the “street drugs”). But as abuse of prescription drugs continues to rise, even those five may become irrelevant. According to USA Mobile Drug Testing, Federal Drug and Alcohol testing regulations do not address the use of legally prescribed over-the-counter medications—so a huge number of the 2.4 million Americans who abuse them could get off scot-free.
Even more significant than what the drug tests look for is who they’re testing, says Dr. Wozniak. “One of the amusing anecdotes that I learned from my employer is that everyone here gets drug tests except the faculty. All of the staff, from the cleaning crew to the chefs, have to be tested, but the faculty, we’re incubated from it,” she says. “Academics especially think it’s not a big deal. They think no one fails these tests and there are no consequences.”
Talk about a false positive.