January 21/28, 2019: Volume 34, Issue 17
By Robert Persons
For many Americans in industries that range from air traffic control to flooring retail sales, drug testing is a part of the employment process.
“The reason why I drug test is to make sure [my employees] are not on drugs,” said Darren Braunstein, vice president of Worldwide Wholesale in Edison, N.J. Drug testing may seem like a sure-fire way for employers to cover their backs—heck, it’s the cross-industry standard. If only things were the way they seemed in this world. In the United States today, changing laws, social norms and poor public policy behind the classification, investigation and enforcement of drugs make the issue a lot more complex than the results of a urine test.
Out of the eight managers or owners FCNews contacted for this article, five said they drug test all employees; three said they take a more nuanced approach. For Jerry Hennon of Carpets of Dalton, it’s simply part of the hiring process. “The problem comes from using equipment, either a forklift or company car. I don’t want to penalize anyone for [having fun on the weekend], but I don’t know how you can draw the line yet.”
When a policy is fairly uniform across the industry, it is easy to follow suite, but Cathy Buchanan, owner of Independent Carpet One in Westland, Mich., takes a firmer approach. “I drug test installers because they are going into people’s homes and are a reflection of my store. They are driving my vehicle; if they have a chemical in their system that’s a personality trait I don’t want in my consumers’ homes.”
Jimmy Poulos, owner of Flooring 101 in Ventura, Calif., agrees and tests all his employees. “Installers go to people’s homes; we don’t want them to steal,” he said. “They also drive my trucks.”
Other retailers, such as Great Floors in the Pacific Northwest, do not automatically drug test all employees, according to C.J. Johnston, director of human resources. They only drug test those who drive company vehicles—and in those cases it’s done on a random basis or if an employee is involved in a workplace accident. They do this in accordance with the DOT or Omnibus Transportation Employee Testing Act regulations, which applies to “safety-sensitive employees” in fields such as aviation, pipeline operators, railroad workers and commercial drivers.
Sam Roberts, owner of Robert’s Carpets and Fine Floors in Houston, conducts background checks rather than drug tests. “Not because I don’t want to give someone a second chance, but because they are going into people’s homes. It’s not reasonable to decide what level of risk other people should take.”
Roberts does not drug test because he feels it’s costly and unnecessary. Rather, he believes he can learn more about the character of potential employees through references on their application and meetings in person. “I care about [my employees’] character, how they behave and how they treat the customers. As long as they come to work clear headed and have good character, that’s what I care about. I’d rather have someone who does drugs when they go home, who is a gentleman and does a good job than someone who is a total [jerk] but never touched a drug.”
Flooring retailers aren’t the only ones dealing with this issue. Bob Weiss, president of All Tile in Chicago, drug tests at the beginning of employment and if there is an industrial accident or event that causes suspicion. “People need to be safe and not incumbered,” he said. “Employees can’t be messed up on the job.”
Not so cut and dry
Fine Floors’ Roberts raises a key underlying question: Is the cost of having potential drug users under employment greater than the expense of testing employees? This may seem like a cut and dry question, but experts say “drugs” is an ambiguous term and their role in society exist in a complex social, political and economic matrix.
An important distinction that must be made is what drug tests are testing for. We can generalize by saying “illegal drugs,” but as policy is written far from the lives of everyday people, we must examine this closer. An occasional pot smoker is very different from a heroin addict, yet a cut and dry anti-drug policy would treat them both the same. Obviously, no one wants to send an enraged drug addict into someone’s home and no one wants someone impaired to be managing their warehouse. However, drug testing may not necessarily be the best way to ensure this. First off, many flooring retailers across the country do not directly employ their installers and, therefore, cannot impose drug tests—as is the case for Worldwide Wholesale’s Braunstein.
Another factor is the drug test itself is not necessarily an effective way of monitoring impairment because urine drug tests do not screen for intoxication but rather metabolites, which are present after a substance has been metabolized. (There is no pot “breathalyzer,” per se, but there are ways to train management how to recognize signs of intoxication.) Another challenge is different drugs react differently—chemically speaking—in people’s bodies. So-called “hard drugs,” such as cocaine and crystal meth, leave no traces of consumption after only a few days, while marijuana may linger in the system for a month. This means someone could have smoked a joint with their friends on a Saturday night two weeks ago and still test positive, while another person could have done a line of cocaine in the bathroom five minutes before their drug test and the results would be negative (assuming they didn’t do any in the days leading up to it).
Furthermore, a positive drug test does not indicate a causal relationship between workplace accidents and drug usage. Someone who might have used marijuana within the past 30 days would test positive and lose their job even if it had not caused their accident or injury, while someone on hard drugs that caused their accident could test negative. In addition, drug tests are not always accurate. For instance, someone can test positive for morphine if they ate a poppy seed bagel for breakfast, or their prescribed medication might trigger a positive result, which would put an employee in a position where he must either reveal confidential medical information or risk losing his/her job. Experts believe a dogmatic drug policy that takes no nuance in the face of complex social conditions can have high costs for both employers and employees.
Privacy vs. policy
This raises the issue of importance for the essential American values of privacy, liberty and trust. Does requiring drug tests show employees they are not trusted? Great Floors’ Johnston does not see it as a matter of trust but rather a matter of ensuring quality performance. This outlook places the employer’s security over an employee’s privacy, which is hard to argue against based in the logic of rational self-interest. But from the perspective of an individual who either uses drugs recreationally or values privacy highly, an employer that drug tests is at a competitive disadvantage than employers that don’t. This might require drug testing employers to provide higher pay or benefits for a potential employee to give up a lifestyle preference (either privacy or usage) when other employment options are available that don’t require them to change.
Steve Chesin, owner of Carpets N More in Las Vegas, does not drug test automatically, adding: “It’s not invasion of privacy if that’s your policy. That’s your policy, right or wrong.”
Indeed, a retailer’s business is his or her private property, and he or she can do with his or her property as he or she pleases. But at the same time, critics argue, don’t all people have an inalienable right to liberty and privacy? Does an employer’s liberty supersede the liberty of an employee in this situation?
Flooring 101’s Poulos doesn’t think it’s an invasion of privacy. “The people who don’t take drugs don’t mind, [and] anyone who does use drugs will object. I have to protect my company and consumer—period.”
While this might be true for some people, some would argue this outlook defies the very logic of liberty. The thought process being: just because I have nothing to hide doesn’t mean I want to surrender my privacy. Some say this is why police are required to obtain warrants to search citizens’ premises. “Invasion of privacy is a government issue, not mine,” All Tile’s Weiss stated. “If drugs were legal it wouldn’t be an issue.”
Actually, marijuana is legal in 10 states now, but if you work at most national corporations such as Dish Network and many smaller companies such as Pacific Flooring in Washington state or Flooring 101 in California, you’d better hope you don’t test positive for THC (the element of marijuana that gets you high). In states where marijuana is legal, it is also legal for employers to deny work and/or terminate employment for people who test positive.
Case in point: In the 2015 lawsuit Coats v. Dish Network, Brandon Coats was fired from his job at Dish Network for testing positive for THC, even though he was using it legally as per his medicinal prescription. The Colorado Supreme Court ruled in favor of Dish Network despite a Colorado statute that states: “It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours.”
The court ruled although marijuana is legal in the state of Colorado, it remains illegal on the federal level, which supersedes any state in accordance with article VI of the Constitution which states federal law is the supreme law of the land. Connecticut, Rhode Island and Arizona are the only states that provide special protection for people prescribed medication; in all other states you can be fired for testing positive for a drug legally prescribed for you. Furthermore, many workers in the U.S. are employed on an “at-will” basis, meaning the employer or employee can terminate at any time with only a few restrictions that vary by state for wrongful termination. Here we must see an important distinction between laws and justice. A law-abiding citizen’s livelihood can be taken away because the legal definition of marijuana under federal law is antiquated and has contributed to the overcrowding of American prisons, some could argue.
When looking at the issue of drug testing, it is necessary to examine the political conditions from which it came. Before the 1990s, drug testing was far from the industry standard it is today. Largely beginning with Ronald Reagan’s highly touted “War on Drugs,” which classified drug usage as a criminal offence rather than a public health issue, drug testing became common within the hiring process. In an internal study conducted by the American Management Association, it found 21% of its member companies drug testing in 1987 jump to 81% in 1996. Before 1987 was the American workforce filled with drug users? Some say it’s ironic that the president, who is the icon of economic deregulation, was key in instituting this significant social regulation. Overlapping this policy shift, the U.S. prison population increased from 500,000 in 1980 to 2.3 million in 2008 with one in five U.S. prisoners committing drug-related offenses.
This does not mean employers who drug test are sending people to jail, but it could show that U.S. drug enforcement and classification of drug usage is overly punitive and coercive. Furthermore, the effects of these policies have been disproportionately levied against black communities, who make up 39% of the prison population despite representing only 13% of the total population. One cannot properly address the question of drug usage in American society without considering the extreme injustices committed as a result of drug policy enforcement. As the UN unanimously declared in 2016, drug usage must be seen as a public health issue that should be addressed with treatment, not prison. I mention this because it’s through this history that drug testing emerged, and it must be within this context that it is analyzed in 2019.
Critics argue many of the laws surrounding drug use, crime and punishment are outdated and poorly written—and, as Bob Dylan wrote, “The times, they are ‘a changing.” Is being unequivocally anti-drug the moral stance? If I have a beer after work and you smoke a joint, are either of us evil? No. But you could lose your job for having a joint on Friday night and I can come into work hung over and get off with a warning. If we value democracy, we should see changing laws as a reflection of social will, not try to change society to fit laws.