Whatever Happened to Drug Testing?

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Holding is the former executive editor of Legal Affairs magazine and legal columnist and investigative reporter for The San Francisco Chronicle.

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A major laboratory testing company offered the cheery news recently that the percentage of American workers who tested positive for illegal drugs last year was the lowest ever. Being a dominant player in the more than $1.5 billion a year drug testing field, Quest Diagnostics naturally attributed much of the decline — from a high of 13.6% in 1988 to 4.1% in 2005 — to rituals like peeing in a cup. Drug testing "is an effective deterrent," said Dr. Barry Sample, director of science and technology for the employers solutions division of Quest. It "absolutely" works, he emphatically stated.

Well, maybe. But even if that's true, a bafflingly large number of businesses are missing the boat. Despite the growing demand for drug tests in sports and other fields, the percentage of employers with testing programs has dropped steadily since 1996, from 81% to 62% in 2004, according to the American Management Association, which sees the trend continuing.

So here's the question: Do employers think they've won the drug war or, as Karl Rove might say, have they just decided to cut and run?

Pragmatists contend that the drop-off is mostly a matter of cost. Although individual drug tests seem cheap — $25 to $50 each, according to Quest — the total expense gets difficult to justify when so few tests come up positive. According to a 1999 ACLU study, the federal government spent $11.7 million to find 153 drug users among almost 29,000 employees tested in 1990, a cost of $77,000 per positive test. Many industries, particularly construction, transportation, health care and retail, also face labor shortages, and the fierce competition for workers may compel employers to forgo drug tests that could dissuade or disqualify people from taking a job — either because they take drugs or simply resent the invasion of privacy.

But the most persuasive explanation for testing's fall from favor is that, from a business perspective, it never made much sense. Companies began to test primarily because the federal government drafted them into the war on drugs. In 1986, the President's Commission on Organized Crime called on private employers "to support unequivocally" that "all use of drugs is unacceptable" and instructed the government to deny contracts to companies that did not do drug testing. President Reagan quickly ordered tests for federal job applicants and employees who carried guns or held "sensitive positions," and in 1988 Congress passed the Drug-Free Workplace Act, which required recipients of any government money to "maintain a drug-free workplace." In 1989, the U.S. Supreme Court rejected arguments that the federal drug-testing programs were unreasonable searches and seizures, finding a Fourth Amendment exception for the government's "special need" to keep druggies out of high-risk jobs.

The fledgling drug-testing industry advanced government policy — and its own business plan — with assertions that tests would make workplaces safer and more productive. Industry executives often cited research showing that drug users were three times more likely than co-workers to consume health benefits, 3.6 times more likely to have accidents, and five times more likely to file worker's compensation claims. Employers were hooked: The proportion with drug-testing programs soared from 21% in 1987 to 81% in 1996, according to the American Management Association.

But the benefits were always at best a bit murky. The oft-cited research, the so-called Firestone Study, was actually a 1972 speech given to lunching Firestone Tire and Rubber executives by an advocate for helping employees overcome "medical-behavioral problems" like alcoholism. The advocate, whose name has long been forgotten, mentioned drugs only in passing and never identified the source for the statistics or anything else that might make the numbers credible. Truth be told, employment experts say there has been virtually no research indicating that drug tests improve safety or productivity on the job.

In any event, the reality is that testing doesn't catch most workers who use drugs. The vast majority undergo examinations only when they apply for a job, and they can pass by abstaining from drugs for a reasonable period before the test — or by using a variety of masking agents or devices that make their urine seem clean.

That' s why giving a urine sample is often called an IQ test: Any reasonably intelligent druggie can pass it. And unless the law requires them to, most companies don' t randomly test employees for fear of undermining morale. "If we do a good job of hiring the right people, we ought to trust them," explained Dr. Ron McKinley, vice president of human resources at Cincinnati Children' s Hospital, which like most hospitals is required by law to do pre-employment testing and to randomly test workers in safety-sensitive jobs such as truck driving.

Trust may be good business, but it doesn't make for good law enforcement, and employers get more than a little uncomfortable when made to enforce a government policy that cuts against their interests. Much as they have been compelled to police immigration by avoiding productive though illegal workers, employers have been cajoled into fighting the drug war by testing, and potentially alienating, valued employees. They don't have much choice on immigration, but drug testing remains very much optional for those who don't receive federal contracts or otherwise fall under government bans on employee drug use. And as with all bad investments, it's an option a growing number of businesses are happy to decline.