This paper represents the legal, moral and ethical implications of testing for the presence of alcohol or drugs as a precondition of employment or as a condition of continued employment. It is the author’s opinion of moral, ethical and legal issues that such testing causes. What exactly is meant by “moral and ethical issues”? The “Moral” refers to the conditions to be satisfied by any right course of action. In the context of drug and alcohol testing, the objective factors such as privacy, employer control of employee behavior, confidentiality and issues of social responsibility, constitute the moral issues that must be considered. Ethical”, on the other hand is a subjective concept and refers to the “correct and honorable” way in which objective moral issues are dealt with. The ethical approaches to the moral issues are varied and as shown in this paper, the way that they are dealt with varies according to circumstances. Moreover, the moral and ethical considerations form the basis of whether drug and alcohol testing are seen to be acceptable. The moral and ethical issues of drug and alcohol testing in the workplace are related to the protection of rights of society versus individual rights.
No one is opposed to measures that would rid drug and alcohol abuse from the workplace. The essential controversy about drug an alcohol testing, however is whether these testing goals justify the means taken to achieve them. Drug and alcohol testing is being justified on the grounds that more and more employers are being held responsible for the action of their employees. The subject of possible litigation ranges from negligence during pre-employment screening to failing to send home an intoxicated employee who subsequently becomes involved in an accident.
Ethical arguments favor testing as deterrence on the grounds that it promotes the safety of co-workers and the general public, who might otherwise be injured by impaired workers. In this regard the safety issue, especially the safety of third parties, is seen as a justifiable reason to test. Often, the provisions of legislation are cited to blame this rationale. (Chatterjee, S. K) “The non-user is in the same relationship to testing as the non-drinking driver who is stopped at a border checkpoint, the honest taxpayer who is audited or the honest traveler who has to go through a metal detector to get on an airplane.
In each of these cases the only way to ensure the safety of the entire company is to subject everyone to a test. Once exceptions are made the entire system of prevention breaks down. ” (Bensinger, P) According to this line of reasoning, the fact that the employee may have consumed the drugs during off-duty hours does not matter; what is important is that the drug is still present in the body, that the active ingredient in the drug could inhibit the employee’s ability to perform safely.
It follows from the approach described above that, in carrying out their professional duties, there is a need for standards of behavior that limit the privacy of employees such as airline pilots, railroad engineers, truck drivers and construction workers by constraining the freedom to place them in situations that would cause risk to others. Justification comes from the assertion that impairment is not always physically evident.
For example, Bensinger cites flight simulator studies that demonstrate that airplane pilots who inhaled marijuana 24 hours previously, and who otherwise were well rested, still deviated significantly from the runway in landing tests. The major argument advanced by those opposed to drug testing is that the goal of ensuring a drug and alcohol free workplace is reached at too high a cost; that the process is an unwarranted invasion of privacy of the employee. The provision of a urine sample for analysis is basically a “search” of an individual that was conducted without consent would be considered an assault or trespass.
Requiring the employee to either submit to a urinalysis or be disciplined and possibly dismissed infringes on what otherwise would be considered a civil liberty. An issue in the dispute over drug testing is the issue that employees’ bodies may be seized and ransacked through the analysis of bodily fluids in order to determine not on-the-job impairment or drug use, but prior exposure to drugs which could have occurred days or weeks before the test while the worker was off duty.
The other main privacy issue in testing revolves around the physical act of obtaining the bodily sample. Put bluntly, an employee who is to be tested may be required to urinate while being observed in order to ensure the origin of the sample and to prevent tampering with or replacement of the sample. The result, according to employees, is a highly intrusive, degrading and embarrassing procedure, no matter how courteously and clinically conducted. The privacy debate is closely related to the right of employers to impose codes of conduct, especially during non-working periods.
Flowing from the concept of at-will employment, employers have the right to publish a code of conduct holding employees responsible for their conduct during non-working time and off the premises of the employer. Even where there is no code of conduct, disciplinary measures may be taken when the behavior is directly contrary to the employer’s business purpose or the employee’s responsibilities, when the safety of other employees is jeopardized or when it harms the reputation of the company.
Apart from privacy and confidentiality issues, another major ethical implication of drug and alcohol testing is related to discrimination in the workplace. Discrimination on the grounds of sex, national origin, disability, age etc. is prohibited. It is conceivable that a policy of mandatory drug testing might be used as a tool to facilitate the utilization of discriminatory practices, however illegal, depending upon the penalties adopted by a specific company or organization in the event that a “positive” result has been obtained or that a person has refused to be tested.
Human rights recognizes three forms of discrimination: evil motive or overt discrimination; adverse differential treatment (treating one group differently than another, deliberately or inadvertently); and adverse impact or systematic discrimination. It is conceivable that selective use of drug-testing procedures could be used to deny employment or continuing employment to, say, persons of color or national origin, or persons of a certain age group, if the penalty for drug usage is dismissal from or denial of employment. Random drug screening might not be applied in a “random” manner if the goal is to covertly discriminate.
Moreover, drug testing could have an impact on selective categories of employees. For example, if all employees were tested, only men or only members of a certain race might be disciplined in the case of positive results. In 1986, President Ronald Reagan issued Executive Order 12564, requiring all federal agencies to establish standards and procedures to ensure a drug-free workplace. The thrust of the Order is twofold: (a) prevention, deterrence and control; and (b) rehabilitation and counseling. It requires federal employees to refrain from drug usage, declaring that those who use illegal drugs are not fit for federal employment.
It has established drug testing in sensitive positions, for persons for whom there is a reasonable suspicion of use, following an accident and for job applicants. Employees using illegal drugs are to be referred to counseling. Disciplinary action, including dismissal, is to be provided for those refusing counseling and rehabilitation. The Order was followed by legislation in 1988 that compels all employers that contract with United States government agencies in amounts exceeding US$ 25,000 and all grant recipients to certify that they provide a drug-free workplace (Chatterjee, S. K. ).
Apart from federal initiatives, state governments have instituted varying programs of drug testing. Reference: 1. Chatterjee, S. K. Legal and policy aspects of drugs and alcohol in the workplace. Paper presented at the Washington Tripartite Symposium on Drug and Alcohol Abuse Prevention and Assistance Programs at the Workplace. Washington, D. C. , 20-24 May 1991. 2. Bensinger, P. Drug testing in the workplace. American Academy of Political and Social Science annals vol. 498. Beverly Hills, California, Sage Publication s, 1988. 3. Drug-Free Workplace. Executive order 12564. Washington, D. C. , 15 September 1986.