Societal attitudes toward drug use have varied throughout diverse eras. Drugs once socially or medicinally acceptable at one time may be illegal and reviled during other eras. With this change in attitude has emerged a fairly consistent policy, both among certain private and government employers, to require drug testing, before hiring or after, given certain circumstances. In fact, in 1988 the Congress enacted the Drug-Free Workplace Act of 1988, which prompted guidelines for federal employee drug testing to ascertain use of “amphetamines, cannabinoids (marijuana), cocaine, opiates (heroin, morphine) and phencyclidine (PCP)” (FindLaw, 2017, 1). Eighteen state legislatures passed laws allowing employee drug testing for private sector employees (Doyle, 2018), a compilation of which can be found published by the ACLU at https://www.aclu.org/other/state-state-workplace-drug-testing-laws (ACLU, 2017). There are distinctions between testing of potential hires and actual employees in many cases. This writer will explore drug testing of employees, rights to privacy, and potential safeguards of privacy when testing occurs.

Unlike applicants, who can refuse drug testing (and probably be removed from consideration for hire), employees can be compelled by their employers to submit to drug tests in certain circumstances. The selection of test participants can be random, or based on cause (Doyle, 2017). In most cases, drug testing may occur if the work entails a risk to the safety of the employee or others, if the employee has been or is in drug rehabilitation, if there was an accident or event that may have been the result of drug use, or if the employee shows signs of using drugs at work (FindLaw, 2017; Guerin, 2017).

Drugs tested for can include alcohol, and even in states which have legalized marijuana use it can be the subject of testing (Wilson, 2017). Driving under the influence, or operating dangerous equipment, may cause a risk to the employee or others, and the employer could be liable for damages as well. In addition, potential impairment based on the effects of different drugs can impede on-the job performance, or be connected to tardiness and absenteeism. Hence it makes sense and cents for employers to implement drug testing for under particular conditions. This writer agrees that in specific instances drug testing is beneficial to and offers protection to all stakeholders: the employer, the employee, and the public.

Many individuals do not believe their employers should be allowed to monitor their off-work behavior, including drug use. This belief has grown recently with the legalization of marijuana in many states, either outright or medicinally. Challenges to drug testing, however, have not succeeded (Findlaw, 2017). In fact, the Constitution contains no specific right to privacy protections regarding such actions. Rights to privacy have been derived from what Justice Holmes called “penumbras” of the First, Third, Fourth, Fifth, and Ninth Amendments, in the case of Griswold v. Connecticut (Supreme Court, 1965). Courts have disallowed certain uses of drug testing results, however, as in criminal trials (FindLaw, 2017).

The major problem with any data in this current media and Internet-driven society is that once information is generated, it never disappears. Therefore, the results of drug tests may be made public years after the fact, or in a non-employment context, causing harm to individuals. For this reason, although there appear to be times when drug testing is beneficial or even needed, it must be handled with care. The way in which testing is carried out and the information stored poses a risk to employees. Non-invasive methods of testing, such as cheek swabbing (Wilson, 2017) or urinalysis (with employee safeguards to prevent substitution of clean urine) are preferable to blood tests from an employee standpoint. In addition, results must be safeguarded and only available to those who need to know. In fact, human resource departments might purge results periodically, and avoid entering them on computers subject to Internet breaches.

Legal, constitutional, and common sense precedents indicate that drug testing should be allowed, at least in some cases. While individuals enjoy freedoms at home, what they do at work can harm themselves and others, and cost their employers (and customers, hence the public) in terms of injury and money. Although drug testing may be a deterrent, it still should be carried out with care. In particular, unauthorized access to results could harm employees in the future. Therefore, this writer advocates restricted access and even destruction of results to protect employees’ privacy while promoting safety.