Legal and Ethical issues of Drug Testing
BUS 670 Legal Environment
Legal and Ethical issues of Drug Testing
In today’s world there are many ethical and legal issues, and businesses seem to be the ones who suffer the most from them. Businesses need to identify these issues to help prevent them from happening again. Lately the issue is drug testing. There are so many views and opinions on this subject. Drug screening (drug testing) is done by checking the urine or through blood test. The employer is checking the employee for illegal narcotics. Because, illegal narcotics can impair an employee’s judgement, and he or she can cause harm to others and themselves. The famous argument is about the invasion of one’s own privacy. “The employee took a drug while on his/her own time, and he/she is not under the influence of the drug while at work; so therefore, it is none of the employer’s business what the employee does on her personal time”(Hanly, 2010). This paper will explain to the reader about issues involving drug testing, laws that effect drug testing, and recommendations on how to reduce liability.
The basic argument of drug testing is that when employees are off the clock they can do anything they want to do. Their privacy is being violated when forced to do drug testing before employment and randomly while employed. Employees have also said that it is humiliating to be randomly tested for drugs just because they had an incident on the job. The next argument is that drug testing is not an effective way to effectively screen employee whose performance on the job is being compromised by narcotics. “Drug-testing, then, presents us with a difficult moral dilemma: How do we respect an employer’s right to a productive workplace and society’s interest in a safe workplace, and at the same time protect our fundamental right to privacy”(Andre, 2012)? I t will take some different ways to balance out crucial values to resolve the dilemma. The question individuals ask is who needs to be tested for drug use? The answer most employers say is police, fireman, rescue, healthcare workers, mainly high risk job workers.
“The consequences of illicit drug use in America’s workforce include job-related accidents and injuries, absenteeism, health care costs, and lost productivity,” (Huffington Post, 2014). “Workplace programs that provide clear policies regarding drug use; offer prevention and education opportunities for employers and supervisors; conduct drug testing to detect and deter use; and support referral and treatment for those who have substance use disorders can play a large role in reducing the demand for drugs throughout our Nation and in helping drug users get into treatment” (Huffington Post, 2014).
Businesses that present legal and ethical issues
I worked at RingCan Security Corporation for many years. This company was concerned about drug testing their employees. The issue arises about drug testing when the amount of accidents involving autos and working with officers of the law. RingCan had to departments one for security (guards) and the other department worked with law enforcement. The guard’s job was to keep buildings, gated communities, and banks safe. The other department works with law enforcement to help secure parades, marches, and protest. These employees will need to be alert at all times so taking illegal narcotics is a risk not only for other people, employees, and law enforcement, but for RingCan. This is a job where drug testing employees to prevent any liabilities.
One incident that caused an ethical dilemma was when a guard was not paying attention to his post at a protest. This employee was to guard a certain area of the protest making sure it kept peaceful. The guard decided to leave his post and grab a sandwich and a drink at the pub nearby. Leaving his post was enough to fire the guard. He left his post unprotected for any protester to start a fight and harm someone. This guard also ate lunch and had an alcoholic beverage with his lunch. This action can also get him fired. You cannot drink while on the job and he was still on the job. The guard was reported to the employer by the police department he was supposed to be helping. The employer talked with the guard and he replied that he was hungry and it was past time for lunch. He also stated he saw nothing wrong with having one drink while at lunch. The employer pulled out the contract the guard signed and said that there is no drugs and alcohol allowed while on the job. The guard did receive a written warning for leaving his post without permission, and then sent to do a random drug test.
RingCan does a pre-employment drug testing on all potential guards by sending them to the lab at the hospital before hiring. The company does not have a random drug testing policy at this point, but should have one for this line of work. However, if an employee gets hurt on the job or acts suspicious then the manager will request for a drug screen. There have in the past been a few incidents where the drug screen has tested positive and from an ethical view is not right or safe.
It has been studied that most businesses do random drug testing to prevent accidents and to protect their employees from harm. Drugs can impair individual’s senses, work performance, which cause poor work performance. According to the article by Claire Andre (2012), drugs and alcohol abuse has cost company’s billions of dollars in lost production. This world faces many legal and ethical issues. Finding a way to identify them will help prevent businesses from any loss. An issue that seems to cause a lot of controversy is the drug testing of employees. Employees feel this test is an invasion of their privacy. This outline will show how drug testing causes ethical concerns, and recommendations to reduce liability and improve ethical climates.
There are many different views and sensitive issues regarding drug testing. In the 90’s drug testing was starting to be used increasingly. These tests were used to find the existence narcotics in the urine, and also the blood of the employees. “An employee abusing illegal narcotics may be impaired and thus at a greater risk of injury or illness on the job” (Kesselring & Pittman, 2002). Individuals do feel like it is a pointless expense that results in unjustified job loss due to urine analyses. Also, an unnecessary job loss that is unrelated to job performance. Business owners feel it is a way of protecting employers from being hurt by drug-impaired workers.
As with most anything in this world there are ethical concerns raised by drug testing. “Utilitarianism (ethics) is a procedure for aggregating individual interests and desires, a procedure for making social choices, specifying which trade-offs are acceptable” (Freeman, 1994). This viewpoint is that it is morally wrong based on what is best for employees. The opinion of many was they do not see anyone benefiting from not drug testing. “Each individual counts for exactly as much as another if each experiences and equal quantity of utility of the same kind or quality” (Riley, 2009). Testing randomly does have a potential to save many lives. At RingCan they test you when you are hired, but then only test again after an incident and that can be too late.
“Deontology is the opposite of teleology, which is commonly defined as a theory in which the only right-making properties are good-promoting properties” (Kay, 1997). Looking at the deontology standpoint, deontology does consider the way things are done without looking at the consequences. The way the company looks at the deontology view is that they are doing the right thing. They are also saving money by preventing drug related accidents and injuries. With RingCan they are making a statement that they are doing everything they can to ensure the safety of their employees, and people they con in contact with. They also feel that drug testing after an accident clears the employer from any wrong doing if the employee is found to have a dirty test. The company also saves money by not random testing for drugs.
After reviewing both theories, I would say that utilitarianism would be my first choice. Utilitarianism is the better way to go because it helps the company and society. As we looked at deontology, we see that this theory is only out for the company, and does not protect the individual. It is true random drug testing would cost the company more money. In the long run it would save money from incidents, property damage, and bodily damage. Random drug testing can keep an employee on their toes because they could be tested at any time, and lose their job if they fail their drug screen.
Addressing the Laws
The U.S. Department of Labor has employment laws that were created to help employers to hire the right employee. Some of those laws are; Fair Labor Standards Act, Occupational and Health Act, Employee Retirement Income Security Act, and the list go on. Today most companies do require drug testing before hiring. Failing the drug test leads to not being hired. Companies are starting to require drug testing when employees get hurt on the job, destroy company property, and hurt customers. Most companies like RingCan have contracts that state that random drug testingisa partof their employment term. With that clause in the contract future employees will know they can be tested at any time, and may stop the individual from using drugs. “State laws characteristically permit employers to test applicants for drugs. However, the employer must follow the state’s rules about providing notice and following procedures intended to prevent discrimination and inaccurate samples” (U.S. Department of Labor, 2015). “As an employee, you can always refuse to take a workplace drug test. But, if you are fired because of your refusal, you may have little recourse” (U.S. Department of Labor, 2015).
A few good ideas to put in a drug testing policy is which employees will be covered, what is considered a violation, do you consider rehabilitation, what disciplinary actions will be taken. It is a necessary part of the policy to have the employee sign the contract. It is also legal to test certain employees and not the others, but the employer must be careful in doing so. Some company’s only test their employees how have high risk jobs.
Some employees believe that random or any other kind of drug testing is an invasion of their privacy. “All employees have basic rights in the workplace — including the right to privacy, fair compensation, and freedom from discrimination” (Findlaw, 2012). Even before the applicant is hired they have rights. “Those rights include the right to be free from discrimination based on age, gender, race, national origin, or religion during the hiring process” (Findlaw, 2012). For Instance, a soon-to-be boss should not ask the future employee certain family-related questions while in the interview. Such questions pertaining to marriage, divorce, sexual preference are illegal to ask in interviews.
There is also a law that some companies may not know about. That law pertains to individuals who had or have an alcohol or drug abuse problem. Those individuals are covered under the law. They cannot be disciplined or denied a job based on the abuse. Legal issues regarding drug test are; when can a drug test be required, what procedures should be used to achieve accurate testing results, and what steps to take when test result comes back positive.
Analysis of Employment Law/Contract
Pre-employment, employment and post-employment phases are what the employment law consists of. The law allows an employer to require a drug test as a condition of employment.The condition also includes after a job offer is offered but before the employee is hired. Pre-employment phase isan important part of the hiring process. It is important because it is the one step to keeping the company clear of any negligent hiring. Companies do want a drug free environment so they do enforce a drug free policy upon hiring. This policy includes random drug testing when a manager suspect’s employee might be using. RingCan choose to create an addition to the policy handbook including their company is a drug free workplace.
Contracts are needed for employment phases. An employee needs to find the elements in their contract by identifying the elements that are in the agreement enforced by the employer. Altogether five elements need to be clear and exist to be a valid contract that can be enforced by a court of law. “According to Seaquist, the five elements are: offer, acceptance, consideration, capacity and legality” (Seaquist, 2008). Person making offer and a person accepting (or denying) offer are the two parties involved with the contract. A contract needs to contain clear and concise language (drug testing will be done); a contract has to be offered so that it becomes valid in court. “The result of an offer can be one of the following: lapse – which means the offer expires after certain amount of time; rejection/counteroffer – which is a denial of offer and/or rejection of original offer but negotiating a counter offer with various terms and/or conditions; and, revocation – which is where the person who offers takes back the offer before the person who accepts said offer” (Seaquist, 2012).
Here are some guidelines to follow when making contracts for the potential employees, that a company should follow when wanting to have a drug free workforce.
“Publish a policy statement prohibiting unlawful use, possession, manufacture, or distribution of controlled substances in the workplace;
Notify employees of said prohibition and the penalty for violating it;
Establish a drug-free awareness program;
Provide employees engaged in a contract with a copy of the policy statement;
Notify employees that compliance with the policy statement is a condition of employment;
Require (in writing in your policy)employees to notify the employer within five days if they are convicted of a criminal drug statute violation occurring in the workplace; additionally, notify the contracting agency of such violations, and impose a sanction or require completion of a drug assistance program by a convicted employee;
Make a good-faith effort to maintain a drug-free workplace through these provisions” (NDS, 2014)
These are some of the guidelines that should help a company keep their policy consistent, clear, and fair. Companies have to be careful when terminating an employee from refusing to take a drug screen. Problems with this area have caused several wrongful termination suits.
Reducing liability exposure, improving ethical climate
As most businesses know “Drug and alcohol abuse in the workplace contributes to a loss in productivity, increased medical expenses, and workplace crime” (Fellows, 1993).Creating a drug free environment can help in reducing liability. Having a drug free environment will also help improve the ethical climate. Creating the drug free environment will take enforcing random drug testing, while offer different ways to perform theses test. “There are types of testing for drugs required by the (substance abuse and mental health services administration) guidelines”. These types are chain “of” custody, initial screen, confirmation test, and split sample.
“Chain of Custody: A chain-of-custody form is used to document the handling and storage of a sample from the time it is collected until the time it is disposed. It links an individual to his or her sample and is written proof of all that happens to the specimen while at the collection site and the laboratory” (Elaws, 2014).
“Initial Screen: The first analysis done on a sample is called an initial screen. This one test alone is not always accurate or reliable; there is a possibility of a false positive. Thus, in the event that the initial screen is positive, a second confirmatory test should be done”(Elaws, 2014).
“Confirmation Test: A second, confirmation test (by gas chromatography/mass spectrometry or GC/MS) is highly accurate and provides specificity to help rule out any false positives (mistakes) from the initial screen. For a test result to be reported as positive, the initial screen and confirmation test results must agree” (Elaws, 2014).
“Split Sample: Is a “urine sample split into two tests. One sample is used for the initial screen and, if positive, the second sample is used for the confirmation test; if there is a positive result, the individual being tested may request the confirmation test be done at a different laboratory”; “DOT’s alcohol and drug-testing regulations require all tests be performed using a “split sample” collection process”(Elaws, 2014).
”Testing for drug usage by the way of urination or blood testing is intrusive and cannot show when or how much of a drug was used, or whether the user was impaired when the test was taken” (Thomas, 1997). Mangers would need to keep alert of employee’s performance so they are aware when their behavior changes. Staying alert of the employees and their behavior is the best route to take. This way there is no assuming just knowledge of the changes. Companies will need to keep random drug testing random to avoid being accused or harassed by employees. Oddly enough sometimes the ones we think do not do anything are the ones that are.
“Drug testing may be done with urine, blood, saliva or hair. Urine testing is the most common and, although it is quite accurate with an error rate of 1 to 2.5 percent, it does not indicate when drugs were taken” (Bauer, 2015). These tests can only identify the results of drugs taken at one point in time. Getting a blood sample is a more accurate way of detecting a more accurate time of use.Taking over the counter medications like pain relievers, and cough and cold medicines can give false readings. “The possibility of false readings, however, can be reduced by confirmatory testing, which typically involves gas chromatography-mass spectrometry — a highly accurate technology that combines two separate molecular density tests and compares mass to ion electrical charge to identify compounds within a sample” (Bauer, 2015).
In conclusion, drug screening is allowed by law to check employees for drug use. Employers do not want to have an employee that could cause harm to other employee’s. A person has the right to refuse to take the drug screen test. However, the employer does have the right to fire or warn the employee. Legal and ethical issues are always going to present problems. As we all know the world constantly evolves and changes. So the political viewpoint will also constantly change. “Political viewpoints shape this answer because most of the heads of the agencies are appointed by the current president and the generally are led by the beliefs of the party they serve” (Seaquist, 2012).
Drug testing is a viewpoint of a company like RingCan who needs to find ways to do the most ethical and legal thing possible. As long as the employee stays alert and productive in their job it will help avoid incidents. Utilitarianism is a choice that was made and may not always feel like the right choice but in most circumstances utilitarianism will feel like the right thing to do. The employment laws are created to keep society out and a balance for employees and their safety. “When it comes to drug testing, random drug testing can be one of the most important things to consider, as it will help keep every employee aware as well as possibly saving lives” (Andre, 2012). “More than 1 in 12 American workers report abusing drugs regularly – despite the prevalence of workplace substance abuse and testing programs designed to identify and eliminate such abuse” (Delogu, 2007). “The interesting part is that according to the 2004 National Survey on Drug Use and Health, 75% of drug abusers in America are employed” (Cholakis & Bruce, 2007). Keeping a safe work environment is achieved by keeping aware of employees and their changes. Staying aware will not only save lives but could help fight a part of culture that is affecting us today. This culture is known as drug use.
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