Drug Testing In An Employment Setting

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With the rise of cannabis use, there has been a subsequent increase in the legalization of the recreational and medical use of the drug in select states. Consequently, the need to reevaluate the current pre-employment drug screening processes is apparent. Cannabis is legal in eleven states for people over the age of twenty-one, and legal for medical use in thirty-three states. As drug abuse became a more prevalent problem, pre-employment drug testing became common practice for screening drug and alcohol abusers before hiring. This would help protect the employer from potential risks such an employee would bring to the company. There are many different drug testing-related laws under different departments in the United States but for purposes of continuity and specificity, this paper will only be looking at laws under the Department of Labor. The different laws and regulations differ by state but in this paper, I will focus on the case history of cannabis legalization, drug screening ethics and why I believe the current status quo must change.

The Drug-Free Workplace Act of 1988 was enacted for government employees and contractors. In which any employer or contractor would lose government funding if they were not a drug-free workplace. It is difficult for an employer to test only certain potential employees rather than all because they can not pick and choose who has to b tested. All potential employees must be treated equally if they are applying for the same position. The law, however, does not explicitly mandate drug testing as a screening process. The Supreme Court has held that both blood and urine testing are minimally intrusive which are not harmful to potential or current employees. This ruling was found in SKINNER v. RAILWAY LABOR EXECUTIVES (1989).

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In this case, the Federal Railroad Administration wanted to implement regulations that would require mandatory blood and urine tests for employees who were involved in certain train accidents. The question raised was whether this was a violation of the employees’ Fourth Amendment Rights. The Court determined that both the taking and testing of blood and urine samples constituted searches as defined under the Fourth Amendment. This case was very important because it verified the claim that blood and urine tests were, in fact, a Fourth Amendment search. The court also recognized the fact that the railway employees were in a position where public safety was concerned, and these two together were enough to justify the policy of drug testing without individualized suspicion. The dissent did argue however that the way the court accepted the post-incident drug tests would lead to a broad interpretation of drug testing in various situations. This is what leads us to the National Treasury Employees Union v. Von Raab case. Where the Customs Service implemented a drug testing program for specific employees who either carried firearms, were involved in intercepting drugs as they enter the country, or were in positions involving classified information. The Court, once again held that neither probable cause nor reasonable suspicion was needed to test government employees in high-risk positions. These landmark cases set a precedent standard for drug testing in an employment setting.

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