Among the many constitutional safeguards afforded the citizens of our nation is the Fourth Amendment protection against unreasonable search and seizure. Originally, the provision was written to limit the prying and confiscating prowess of government. The notion that private parties could, without the use of brute force, brandish sufficient power to perform unreasonable searches and seizures is a contemporary one. Power and abuse, however, are old traveling companions, and incidents testing the limits of the Fourth Amendment are on the rise. Whether such actions are sanctioned or forbidden by law increasingly lies in the definition of the word unreasonable, as interpreted by the courts.

Perhaps no activity so blatantly challenges the provisions of the Fourth Amendment as mandatory drug testing. Subject to spotty regulation, drug testing exists at the discretion of employers and carries with it a presumption of guilt that can only be assuaged by the invasion of privacy. It is hard to imagine anything more unreasonable than seizing someone’s urine and searching it for drugs. Indeed, in a 1987 case challenging the legality of drug testing, the U.S. Supreme Court noted, “There are few activities in our society [that are] more personal and private than...urination.” Nonetheless, over 25 million people in the United States are required to submit to drug tests as a condition of employment, and, reasonable or not, the justifications for the requirement are often quite compelling.

An estimated 12 million people use illicit drugs in this country, and 74 percent of them are employed. Government studies disclose that one in six workers has a drug problem, and that the various manifestations of their addictions cost employers between $7,000 and $10,000 per person, per year. The cost of medical treatment alone soars to 300 percent of the expenses incurred by sober employees. The rate of absenteeism for drug users is 16 times that of other employees, and their overall productivity is 1/3 lower. Nationally, the annual cost of lost productivity due to illicit drugs is estimated to top $50 billion. Further, when drug users were surveyed, 44 percent admitted to selling drugs to coworkers, and 18 percent confessed to stealing from their employers. The emerging picture, from a corporate perspective, is neither tenable nor tolerable.

Mixing drugs and work is not only costly but potentially deadly. Forced to contend with the barbed issue of liability, companies are obliged to take reasonable precautions where public safety is concerned and may be judged negligent and liable for the actions of drug-impaired employees. In Philadelphia, an Amtrak employee under the influence of marijuana rammed a 10-car passenger train into a repair car, injuring 25 passengers and causing $3 million in damages. Less fortunate were 22 tourists aboard a New Orleans bus who were killed when their driver, another marijuana enthusiast, smashed into an abutment

while stoned. Settlements in such cases are financially encumbering, and the company involved must also survive a loss of public trust. Negligence need not even be deliberate and may simply be based on what a company should have known but did not. Liability can be assigned for any number of oversights, including lax hiring practices, retention of unfit workers, inadequate supervision, failure to exercise proper control, and entrusting potentially dangerous vehicles or equipment to unqualified people. As a means of limiting liability, drug testing provides corporations with information they need.

It is ironic that widespread drug testing was introduced by the very institution that is constitutionally prohibited from performing unreasonable searches and seizures. Ronald Reagan’s 1986 executive order mandated drug testing for federal employees and encouraged testing in the private sector, launching thousands of private little drug wars. Just two years after Reagan’s directive, over 50 percent of the Fortune 500 companies had implemented drug testing programs. That number has grown every year since.

But while corporations are increasingly insistent on knowing what employees put in their bodies, employees and privacy organizations have grave doubts about the fairness, efficacy, and confidentiality of drug testing. Testing is not foolproof. Dan Berkable, president of the American Toxicology Institute, concedes that “analytical errors in laboratories may occur in batches.” Human and equipment errors, contaminated reagents, certain over-the-counter medications, and even eating a poppy seed bagel can produce false positives. Poppy seeds and the anti-inflammatory Nuprin can both generate false positives for opiates and marijuana. Using cold medications such as Contac or Sudafed can be mistaken for amphetamine use. Simply being in the presence of marijuana smoke can yield a positive test result. And, while traces of marijuana can be detected for up to a month after usage, the more dangerous drugs such as cocaine, crack, and heroin are the most difficult to detect through standard testing.

Opponents of testing argue that the vast majority of drug users are casual users who are not dysfunctional and present no on-the-job risk. Moreover, testing does not indicate whether an employee is under the influence of a drug at the time of the test; it merely confirms that a drug had been taken at some point prior. While drug use on the job is conceded to be a legitimate concern, opponents question why a company needs to know whether an employee smoked pot a month ago. As long as job performance is not impaired, what employees do off the job should remain their business. In effect, opponents contend corporations are engaging in off-the-job conduct surveillance and imposing narrow behavioral standards on their employees.

Opponents of drug testing also fear that it may exceed its function by revealing unrelated conditions that employees have a legitimate right to keep confidential. Prior to submitting to a drug test, employees may be asked to list any prescription drugs they are taking that could impact test results. Thus, illnesses can be inferred from treatment. Existing conditions such as pregnancy, diabetes, and epilepsy also show up in urine analysis.

Furthermore, opponents say the drug that is responsible for twice the productivity loss of all illicit drugs combined (nearly $100 billion annually), culpable in almost half of industrial fatalities and injuries, and seldom the object of testing, is alcohol. While 12 million Americans use illicit drugs, 105 million drink alcohol. Why should the recreational marijuana users lose their jobs while the heavy drinkers keep theirs?

Perhaps the most pragmatic argument against testing is the mounting evidence that it simply doesn’t work. The National Research Council and the Institute of Medicine studied the effectiveness of drug testing and concluded that “there is no solid proof that drug testing lowers accident rates, and there is no statistical evidence that drug testing is a deterrent to drug use.”

So why does it continue? Liability is certainly central to the increase in testing. Reasonable care on the company’s part yields smaller settlements when accidents occur. Testing is also used as a screening agent. There are four types of drug testing: preemployment screening, periodic testing, suspicion-based testing, and random testing.

As a condition of employment, preemployment testing can weed out undesirable candidates. But, since it is scheduled ahead of time, this method is also the easiest to beat. If abstinence is too taxing, masking agents such as the congenially named “Urine Luck” guarantee the purchaser will pass any standard drug test. Such products are widely available on the Internet.

Still, a surprising number of people fail preemployment screens. During a recent remodel of my home, a manager of a roofing and gutter company told me that he was offered more work than he could accept because the last nine people who applied for a job with his company were unable to pass a drug test.

Preemployment testing is neutral and, therefore, seldom becomes an issue; if you don’t want to take the test, don’t apply for the job. The other types of drug testing, however, have been challenged for a variety of causes including inconsistent application, leaking of results to unauthorized personnel, acting on only one test result, concentrating on selected positions within a company, and sending impaired individuals home behind the wheels of their cars.

If the intent of testing is to keep drugs out of the workplace, it won’t work. Authorities can’t even keep drugs out of highly controlled environments such as prisons; it’s silly to think testing can keep drugs out of the office. But, it doesn’t mean we shouldn’t try. There is compelling reason to test safety-sensitive employees like pilots, heavy machinery operators, and bus drivers. There is less reason to test accounting clerks, programmers, or workers on a manufacturing line who do mind-numbing, repetitive work. Personally, I would refuse to take a drug test; it presumes an unearned guilt, and I find it invasive. But I understand that the cost of personal ethics can be prohibitively high. If the choice were feeding my family or not taking the test, I would reach for the cup.

Testing will remain, at best, a stopgap measure until society adopts a consistent posture toward drug use and drug profits. The drug trade is a global business producing $400 billion a year. Much of that money is funneled through American banks, whose executives don’t complain. Compelling evidence exists that for years the CIA ran drugs to finance its clandestine operations.

Popular music glorifies drugs; popular culture embraces them. In sports, drug use is widespread. In Silicon Valley, where I worked for years, cocaine and pot were common stress-management and recreational choices among high-tech players. For casual users, drugs may replace the occasional beer or glass of wine. For chronic users, drug use is a misguided attempt at self-care.

If drugs are a problem for businesses, they are seen as a solution by users. Drugs are the triumph of the easy solution over profound commitment, of the quick over the lasting. Ultimately, I fear, the fight against drugs is a fight against human nature, and human nature is unlikely to yield.

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