Mandatory drug testing for workers dates back to 1980s

Mandatory drug testing entered the American workplace in the 1980s, led by gradually expanding federal government requirements.

The government first ordered drug testing in the military, then extended the requirement, consecutively, to the Coast Guard, to federal workers in "safety sensitive" positions (over half the federal workforce), to employers receiving federal grants or contracts of over $25,000, and by the mid-1990s to workers in the aviation, trucking, railroad, marine, and pipeline industries.

Meanwhile, other employers were persuaded on their own to test by statistics showing that drug users are more likely than other workers to file workers' compensation claims, use sick benefits, be late to work, be involved in a workplace accident, request extra time off, steal, perform poorly, and create disciplinary problems.

As workplace drug testing became widespread, some unions opposed it. Allied with the American Civil Liberties Union, unions such as the American Federation of Government Employees, Amalgamated Transit Union, United Transportation Union, Air Line Pilots Association and the Teamsters fought it in court as an intrusion into employees' private lives.

Random testing, in particular, was opposed as an unreasonable and invasive search of innocent and guilty alike, and a violation of the Fourth Amendment protection against warrantless search and seizure.

Union efforts did not succeed in halting drug testing for millions of workers in government and in transportation industries. A Supreme Court decision largely ended discussion about whether the government could require random testing for safety-sensitive employees. But union research and lobbying did result in the use of more accurate testing practices and in greater protection for workers' rights, including: Careful custody and control procedures; "split sample" testing, with one portion set aside for a second opinion in the event of a positive result; testing of samples with two separate methods to ensure accuracy; and the requirement of a doctor known as a "medical review officer" look at the test results and interview the sample donor to rule out false positives.

As workplace drug testing became better established, unions evolved a harm-reduction approach that has become fairly consistent.

Where the government requires testing, unions serve to educate members as to their rights, and defend individuals when abuses occur.

In workplaces where testing is not required by law, the presence of a union makes even more difference. Without a union, employers are free to institute any drug testing policies they wish. With a union, the National Labor Relations Board has ruled, they must bargain to do so. Some unions reject random, across-the-board testing, but agree to other kinds of testing, such as pre-employment screening or testing after workplace accidents.

As an alternative to random testing, unions sometimes favor contracts that allow testing when there is "reasonable suspicion" that an employee is under the influence and impaired, though even then, unions may press for a requirement that supervisors get a second opinion before ordering a test. In Iowa, a state which requires detailed reporting of drug testing, tests ordered when supervisors believe they have a reasonable suspicion turn up negative 70 percent of the time.

To discourage supervisor harassment, Amalgamated Transit Union Local 757 negotiated an agreement at Tri-Met that allows the Portland-area transit agency to test workers they believe are under the influence, but if a test comes back negative, workers get a day's pay or $100, whichever is greater.

Often, the key to winning union agreement to a drug testing policy is the institution of a non-punitive employer-funded program designed to divert employees who have substance abuse problems to rehabilitation and treatment, rather than simply terminating them as violators of the employer's anti-drug policy.

That's the approach favored by the Regional Drug Initiative (RDI), the leading advocate of "drug-free workplace" policies in the Portland metro area. With the involvement of eight Portland-area union leaders, RDI developed a recipe for workplace drug policies that includes employee education, training for supervisors and union reps, mandatory drug testing, and an employee assistance program for workers to turn to for help with substance abuse problems.

While no union condones drug use by employees, unions continue to differ on the issue of random testing. Some embrace random testing as a useful safety measure, say it discourages employee drug use, and point to benefits in employee health, morale, and reduced disciplinary actions and grievances.

Others accept for-cause testing, but oppose across-the-board random testing. Clara Oleson, a former attorney who has worked as a labor educator at the University of Iowa Labor Center for 18 years, has studied drug testing since 1989 and has worked with dozens of labor unions on the issue. Random drug testing is flawed as an approach, Oleson said, because it is best-suited for detecting habitual off-the-job use of marijuana, the drug regarded as the least serious of the five normally tested for. Oleson explains that cocaine, heroin, amphetamines and PCP are normally flushed out of the system within 72 hours, as is marijuana in the body of the occasional user. But with habitual marijuana users, traces can turn up in urine samples up to 30 days after the most recent use. Add to that the fact that marijuana use is far more common than use of other illegal drugs, and it becomes clear why the vast majority of employees who face discipline at work for positive drug test results tested positive for marijuana.

According to a 1998 government estimate, 11 million Americans had used marijuana at least once in the previous month. That compares to 5.4 million habitual or occasional users of cocaine or crack, and 1.4 million users of heroin. Workplace drug policies make no distinction between use of marijuana and use of "hard" drugs like heroin and cocaine, says RDI executive director Jeanna Cernazanu.

Oleson is also critical of the focus on "safety-sensitive occupations," arguing that it creates a double standard where tests are aimed at the blue collar working class. "If you're in a suit and tie, an accountant or a lawyer, sitting at a desk, you're going to be treated differently than someone driving a forklift."

Required or not, random or for cause, it's clear that unions are workers' first line of defense when drug testing leads to disciplinary action. Delta flight attendant Yasuko Ishikawa said she called at least 30 lawyers after she was wrongfully fired in October 2000 for an abnormal urine sample. "And the first thing they said is I should talk to my union," Ishikawa said. As it happened, Delta is the only major airline without a flight attendants' union, but the pilots' union and the union that is seeking to represent flight attendants still gave her considerable assistance. She's now back on the job.

August 3, 2001 issue

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