Crack, Symbolism, and the Constitution
Now that the use of illegal drugs, especially crack, has been labelled the country's number one public health and safety issue, we are likely to see more and more creative and repressive ways to attack the problem. As long as the use of such drugs and its associated violence was largely confined to America's underclass and inner cities, their use was not seen as a central societal issue. But times seem to have changed; what was commonplace drug use in the 1960s, for example, is now grounds for disqualification for positions in law enforcement, and even for the post of Justice of the Supreme Court of the United States. Much of the recent reaction to drug-taking can be viewed as sanctimonious, hysterical, and hypocritical.
On the other hand, both legal and illegal drugs can impair job performance, and employers have legitimate concerns about employee drug use in particular settings. How far should employers be able to go in testing and screening their employees? The Supreme Court decided its first two cases on this question in March. Although the rulings leave much to be decided and debated at a later date, they begin to set the limits of governmentally mandated drug testing.
The Railroad Rules
The first case involved regulations promulgated by the Secretary of Transportation under the Federal Railroad Safety Act of 1970.(1) These regulations, announced in 1985, were based in part on a 1979 study that concluded that 23 percent of railroad operating personnel were "problem drinkers," and statistics that showed that from 1975 through 1983 there were forty-five train accidents involving "errors of alcohol and drug-impaired employees" resulting in thirty-four deaths and sixty-six injuries. The regulations required the collection of blood and urine samples for toxicological testing of railroad employees following any accident resulting in a fatality, release of hazardous materials or railroad property damage of $500,000; and any collision resulting in a reportable injury or damage to railroad property of $50,000. After such an event, all crew members are to be sent to an independent medical facility where both blood and urine samples will be obtained from them in an attempt to determine the cause of the incident. Employees who refuse testing may not perform their job for nine months. Under another provision, the railroad may perform breath and urine tests on individuals it has "reasonable suspicion" are under the influence of drugs or alcohol while on the job.
The Customs Service Rules
In 1986 the Commissioner of Customs announced the implementation of a drug-testing program for certain customs officials, finding that although "Customs is largely drug-free...unfortunately no segment of society is immune from the threat of illegal drug use."(2) Drug testing was made a condition of placement or employment for positions that meet one of three criteria: they have direct involvement in drug interdiction or enforcement of drug laws; require the carrying of firearms; or require handling classified material. After an employee qualifies for a position covered by the rule, he or she is notified by letter that final selection is contingent upon successful completion of drug screening. An independent drug testing company contacts the employee and makes arrangements for the urine test. The employee is required to remove outer garments and personal belongings, but may produce the sample behind a partition or in the privacy of a bathroom stall. A monitor of the same sex, however, is required to remain close at hand "to listen for the normal sounds of urination," and dye is added to the toilet water to prevent adulteration of the sample. The sample is then tested for the presence of marijuana, cocaine, opiates, amphetamines, and phencyclidine. Confirmed positive results are transmitted to the medical review officer of the agency, …