Politics of Denial

Suspicionless drug testing has been a growing problem in America for over a decade, especially in the workplace. Despite the fact that testing cannot detect on-duty use or impairment, many companies require their employees to submit to urine tests. Even
government employees, who are theoretically protected from searches without cause by the Constitution, have often been subjected to random testing, sanctioned by Supreme Court decisions that have done permanent damage to the Fourth Amendment.

Urine testing has become a fact of life in large companies. The American Management Association reports that over 80 percent of its members (mostly large companies) have some type of drug testing program. But smaller companies have not jumped on The bandwagon. The Department of Labor estimates that only 20 percent of all employers have a drug testing program.

The reasons for this difference between large and small businesses are not hard to discover. Many large companies are federal contractors or are bidding on federal contracts. In the present political climate, a company without a drug testing program is very unlikely to receive federal contracts. Virtually all large companies are political, as well as economic, organizations. The views of stockholders, directors, customers, and community officials must be accommodated, including their views on drug policy. Large publicly held companies do not want to risk offending stakeholders by not having a drug testing program and can easily afford the cost of testing. Some Fortune 500 presidents have admitted off the record that they have doubts about testing, but maintain the program to avoid conflict.

Smaller companies, especially those that are privately held, view drug testing more in economic terms. They are willing to invest in drug testing only if they are convinced it will improve their bottom line through increased safety and productivity. Despite years of constant promotion, both from the testing industry and politicians, most small companies have not been persuaded to test.

Nor should they have been. The experience of companies with drug testing programs gives little indication that the tests do anything to reduce accidents, improve productivity, or otherwise improve company performance. For example, the National Academy of Sciences has found that adopting a drug testing program does not reduce accidents.[Under the Influence? Drugs and the American Workforce, National Academy Press, 1994]

Unable to persuade employers based on the research, the testing industry and its political allies have adopted a new strategy — paying employers to test. These economic incentives take a variety of forms. At least 10 states have adopted some new law of this type (Alabama, Arkansas, California, Illinois, Kentucky, Nebraska, Nevada, New Jersey, Oklahoma, and Texas). Other states, such as Louisiana and Mississippi, are considering such laws. For example: • New Jersey issued regulations in 1997 denying unemployment compensation to employees who are fired if they test positive for drug use. Since employers' payments into state unemployment compensation systems are based on the number of claims paid from individual companies, an employer who is able to defeat claims through testing will improve its bottom line.

• In 1995, Alabama enacted legislation requiring private insurers that offer workers' compensation policies to reduce their premiums to employers who have a drug testing program — whether or not having such a program actually reduces the insurers' costs by reducing the number of accidents.

The newest, most dramatic part of this campaign is the introduction of federal legislation. The Drug-Free Workplace Act of 1998 would create a $10-million pilot program to encourage small employers to set up drug testing programs and also provide free technical assistance. The House of Representatives approved its version, H.R. 3853, on June 23. The Senate version (S. 2203) is pending.

The implications of this new strategy are disturbing. The majority of employers who do not drug test may well change their minds if they are given financial incentives to test. Virtually all employers would test if the incentives were large enough.

The progressive drug policy reform community has not generally opposed these tactics, largely because they were carried out through areas of the law with which we are not generally involved. Now that this stealth weapon against employees has become visible, we need to work together to stop it. Drug testing, like any other commercial venture, ought to succeed or fail on its merits. The government has no business paying employers to use a product that would not succeed on its own.

Lewis Maltby is the director of the American Civil Liberties Union's National Task Force on Civil Liberties in the Workplace, 166 Wall St., Princeton, NJ 08540; (609) 683-0313; email: