Involuntary Drug Testing, Trials, and Screening Policy =================================================== Although there has been widespread use of involuntary drug testing since the early 1990s, controversy has surrounded the lawfulness of these practices and the use of these types of drug testing. In 2005, Massachusetts became the first state to outlaw involuntary drug testing of public school students. In 2007, an appeals court in California struck down an anti-drug law (section 50.5 of the California Education Code) that allowed school districts to order drug tests in the absence of a signed physician's statement. In the spring of 2007, school administrators and teachers in Washington, DC, also expressed opposition to a controversial drug-testing policy that required applicants for city jobs to take a urine test as part of their application. Drug testing has also been employed by employers to screen applicants for jobs in the United States as well as Canada. Federal and provincial legislation allows for drug testing as a condition for employment in Canada. In a landmark ruling in May 2005, the British Columbia Supreme Court held that an employer had the right to drug test employees as a condition of continued employment. The Supreme Court based its ruling on case law and a Canadian federal statute, the *Occupational Health and Safety Act*, which states that employers have the right to conduct drug testing as a condition of employment. The decision overturned a judgment issued by a lower court that drug testing was an intrusion into the private life of the individual. The U.S. Court of Appeals for the Ninth Circuit also held that the Transportation Workers\' Association of America (TWTA) had a legal right to drug test its members. The ruling stated that the "implied consent" provision of the federal Drug-Free Workplace Act does not protect TWTA members from being subject to random drug tests. In addition, the state of Oregon has prohibited private employers from ordering employees to submit to random drug tests without a medical order by a physician. Other states have allowed employers to make random drug tests a condition of employment. However, testing is not without limitations. In many instances, employees can elect not to participate in the program by simply not completing the test. Drug Testing in the Workplace ============================= Current drug testing practices in the workplace vary from state to state and may depend on the type of organization, the type of industry, and the type of job involved. All state departments of labor have published drug testing procedures, and it is expected that such testing will be done randomly, although employers might prefer that employees be randomly tested, whereas applicants be screened before employment. The following are key points of federal and state guidelines in the United States on drug testing: - All employees suspected of being under the influence of drugs, using drugs illegally, or abusing substances are subject to testing (29 CFR §1980.103, 29 CFR §1970.101, and 20 CFR §80.13). However, these employees must be given an opportunity to take an approved drug test. If the test is positive for drugs, the employee must be referred to a rehabilitation program. - All applicants for employment may be required to submit to a drug test to qualify for employment. Such testing may be requested by an employer at the time of application or at any later time. - In the event of an accident involving a machine or equipment used in a manufacturing or production process, employers may require an employee who operates or is in charge of such equipment to submit to a drug test. - Drug testing of firefighters may be conducted if certain criteria are met, such as if a firefighter exhibits unusual behavior and the test results might reveal substance abuse. - Employers may require employees who must carry a firearm or who are in charge of a motor vehicle to submit to a drug test. - Employers may require employees who drive government vehicles, public school buses, school vans, public buses, or other public conveyances to submit to a drug test, if they have access to the vehicles at any time while in the course of their employment. - Drivers of vehicles in hazardous situations are required to submit to a drug test. - Under the Federal Railroad Safety Act of 1970, drug testing of railroad employees must be done only if they are reporting to work while under the influence of drugs (i.e., using or possessing drugs illegally) or abusing drugs or alcohol. - Before an employee is required to submit to a drug test, the following factors must be considered: - The employee\'s health and safety on the job and at home; - The employer\'s need for the work performed by the employee; - The employee\'s use of drugs, illegal drugs, or alcohol during or outside of work hours and during working hours; - The type of work performed by the employee; - The degree of risk associated with the work being performed; - The employee\'s prior history; and - The employee\'s job responsibilities. It should be noted that such tests must be approved by the department of labor. Involuntary drug testing does not require an employer to have reasonable suspicion that the tested employee is using drugs, has used drugs in the recent past, or has a history of drug use. This principle is set forth in the American Psychiatric Association\'s *DSM* ([@B40]), which states that urine drug testing is not considered an invasion of privacy if it is conducted in the context of a bona fide employer\'s substance-abuse prevention or rehabilitation program. The American Psychiatric Association\'s *DSM* further states that if, under the circumstances, a company requires a drug-free workplace, a urine test is a reasonable means of verifying drug abuse. However, companies and institutions should obtain a formal written agreement with the employees before testing ([@B40]). An important consideration is whether employees consent to the test as a condition of their employment. Under federal law, drug tests of workers can be random, reasonable suspicion, or mandatory in nature. In states that have a medical marijuana law, workers who choose to register for medical marijuana can be subject to a drug test. The laws surrounding employer testing can also vary from state to state. For example, an employer may require or request a urinalysis as a condition of employment or promotion or for work-related programs (i.e., drug awareness, random drug tests) when an employee reasonably suspects that an employee may use a dangerous drug or is impaired by drugs. To date, there has been no specific state legislation pertaining to mandatory drug testing in the workplace. However, testing for impairment is permitted under federal law and has been upheld under the Fourth Amendment to the U.S. Constitution. In this regard, the Federal Railroad Administration requires that its employees be tested for controlled substances after a serious accident or within 72 hours of an accident ([@B41]). Random drug testing is permitted in some states. For example, the National Highway Traffic Safety Administration requires motor vehicle operators in a high-risk category to submit to random drug testing. Such testing may be considered random if tests are not scheduled in advance and at least 60 days\' notice is given before the tests are scheduled. The test itself must be unannounced. In most states, a positive test result for a nonprescribed drug is sufficient cause for termination of employment without an inquiry into the employee\'s fitness to drive a motor vehicle or use weapons or other dangerous equipment. Most states also have laws that allow for testing of applicants for safety-sensitive jobs. Such testing allows an employer to determine an applicant\'s ability to perform the job and decide whether such applicant is suitable for the job. Finally, state laws vary from state to state with respect to the definition of employer and the conditions under which a test can be initiated. In addition, a number of federal and state laws prohibit the use of drugs during the workday and authorize employers to require an employee to provide a specimen for a drug test at the request of a supervisor or management official. Many states have laws prohibiting workplace drug use, possession, or abuse. Employers can also test an employee for marijuana only if it is detected in the employee\'s bodily fluids during a mandatory physical conducted under the standards of a federally certified drug-testing program. States also have legislation related to marijuana and legal considerations in its use and possession. Drug testing of employees at work has been an issue for the courts and legislators for years. In general, workplace testing is limited to a few areas: - A requirement that employees in safety-sensitive positions be tested for drugs. States have enacted statutes requiring drug tests of persons who operate or are in charge of safety-sensitive equipment, such as machines or vehicles. - A requirement that all employees be tested for drugs. However, federal courts have held that random testing of all employees is illegal unless employees have reasonable suspicion that an employee may use drugs or alcohol. - A requirement that all drivers be tested for drugs. These tests are often instituted by federal law enforcement agencies and regulatory agencies such as the Federal Railway Administration, but federal law does not require the testing. - Injuries sustained in transportation accidents. Federal law allows for drug testing of truck drivers (Federal Railroad Administration) and railroad employees. In summary, federal law prohibits random drug testing of students. However, some states have laws that permit testing of school students for certain drugs, and a number of schools throughout the country have mandatory testing policies that are determined by state and local laws and policies. The laws concerning these testing programs are quite vague and do not contain many criteria for implementation. Drug testing of students is strictly voluntary. The issue of drug testing