Handbook of Drug Control in the United States

By James A. Inciardi | Go to book overview

Chapter 12
Drug Testing and the Constitution

Kenneth C. Haas

The use of illegal drugs by employees appears to be a growing problem in the workplace. It has been estimated that 10 to 23 percent of all employees use drugs at work. 1 These employees have three to four times as many accidents as do other employees, and many of these accidents result in death, injuries, or substantial property loss. 2 Drug abusers cost employers billions of dollars annually as a result of poor job performance, higher insurance costs, increased claims made on company health plans, high absenteeism, damage to company property, and employee theft. 3 The cost to the economy may well exceed $60 billion a year. 4

Heightened awareness of this problem has led employers to implement various types of drug-testing programs, many of which include urine testing. 5 The Bush administration has called for the urinalysis of approximately 1.1 million federal employees in "sensitive" jobs, from railroad workers to Justice Department attorneys. 6 State and local governments also have embarked on ambitious urinalysis programs, ranging from pre-employment testing of job applicants to random testing of incumbent employees. 7

Not surprisingly, such programs have prompted the filing of numerous lawsuits in federal and state courts. Private employers, however, are not bound by the Bill of Rights or other provisions of the Constitution, all of which explicitly limit only the actions of government entities and government employers. 8 Thus, the large majority of the drug-testing suits filed in American courts have attacked testing conducted by government agencies and government-regulated industries such as railroads and airlines. 9 Nearly all of these suits have challenged urine- testing programs and other drug-testing plans under the theory that such testing violates the Fourth Amendment's prohibition of unreasonable searches and seizures.

On 21 March 1989, the U.S. Supreme Court announced its first two decisions on the constitutionality of drug testing. In the first case, Skinner v. Railway Labor Executives' Association, the Court assessed the validity of Federal Railroad

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