Fourth Amendment of the United States Constitution Overview

Within the area of business law, there are various controversial topics. One of these is whether there should be employee drug testing. While it is common in the private sector, local governments are now also interested in testing employees even though there are restrictions. (Cite). After reading through different articles, I believe there should no longer be employee drug testing. Under the Fourth Amendment of the United States Constitution, drug testing by governmental employers establishes a “search” (Cite). In order to perform a search, there must be probable cause and a warrant.

However, even when a governmental employer has those, there are still challenges to overcome. This is because of the due process and equal protection clauses within the Constitution which forbid particular procedures and practices associated with employee testing (Cite). Furthermore, if an employee’s constitutional rights were violated because of drug testing, local governmental employers can be held liable for monetary damages (Cite).

In the United States Supreme Court cases, National Treasury Employees Union v. Von Raab and Skinner v. Railway Labor Executives’ Association, the court designed a balancing test. The test states that “the governmental interests in testing must be balanced against the employee’s liberty and privacy interests to determine whether a warrant, probable cause or individualized suspicion is required in the particular context” (Cite). The Supreme Court also found three scenarios where testing without a warrant is allowed. These include customs officers who are involved in frontline drug interdiction or those who carry firearms and train operators where a documented history with drug and alcohol related accidents exists in the industry (Cite). Moreover, the case, Chandler v. Miller, emphasized that in order to justify having a drug testing program, employers must have another reason beyond showing a commitment to fighting drug abuse. Those employers should also determine whether there are less intrusive means to fulfill the objective they are trying to accomplish and weigh the positives and negatives (Cite).

When discussing drug testing, the negatives outweigh the positives for many reasons. In a business, it is important to have a high employee morale for the sake of aspects such as productivity and employee relationships. However, if a company was to utilize drug testing, it could cause resentment among workers especially since legitimate privacy interests are on the line (Shaffer…). To some employees, the testing for drugs could also imply that their employer wants to learn more about their off-duty conduct and invade on their privacy (Lu…). Due to this, employers should ask themselves if the off-duty conduct of their employees would affect either the workplace or public safety. Furthermore, employees may develop a lack of trust with their employer as a result (Lu…).

If done correctly, drug testing is a significant expense for a business. In order to assess accuracy, two tests consisting of different chemical processes are typically done (Shaffer…). As a complement, businesses usually include a drug rehabilitation program which only adds to the cost. This requires the employer to set aside extra time and resources to maintain and implement the programs (Shaffer…). Moreover, there is not much scientific evidence that links drug use to negative consequences in the workplace. (Jardine-Tweddie…). Instead, a significant portion of the evidence that implies drug use being linked to increased accidents and decreased performance are based on laboratory studies demonstrating how motor coordination and perceptual abilities are grouped with the consumption of impairing drugs (Jardine-Tweddie…). Along with drug testing being time consuming for both the employee and employer, it is also an issue with labor unions.

Often, labor unions express their disapproval of drug testing in the workplace (Jardine-Tweddie…). This is due to numerous union executives believing that testing damages the management as well as labor relations of a company. Those executives also feel it draws away from other areas of concern such as causes of productivity decline and accidents (Jardine-Tweddie…). Furthermore, in a unionized setting, the use of grievance and arbitration procedures may be increased (Shaffer…). Testing is typically one of the obstacles that takes away from the employer’s goals during negotiations for new collective bargaining agreements as well. When discussing testing in a non-union setting, employers may be unintentionally assisting the union organizer. By using drug testing against the employer, it gives the union organizer ammunition that is well-received by the rank and file employees of the business (Shaffer…). However, labor unions believe this could be avoided as there are less intrusive ways to enhance safety (Jardine-Tweddie…).

If a company’s main reason for drug testing is to limit the number of accidents, other approaches proposed by the Canadian Labor Congress and the Canadian Medical Association may prove to be more effective (Jardine-Tweddie…). One of these approaches is to train supervisors on how to detect performance problems that may affect a person’s safety. In this formal performance management system, supervisors are trained to be conscious of substance abuse symptoms and what action they should take (Jardine, Tweddie…). Furthermore, they are the ones who try to eliminate any stress or fatigue issues in the workplace as those contribute directly to drug and alcohol abuse. The approach that is presented also works from a monetary aspect as it is estimated to cost between $7,000 to $10,000 to replace a production employee. Oftentimes, it is more cost-effective to help a substance-dependent employee as opposed to firing them (Jardine-Tweddie…). If training supervisors does not work, the company could choose to bring in external resources to host educational and awareness programs. These programs would focus on topics such as how drugs affect a company’s productivity and the health effects of drug and alcohol use (Jardine-Tweddie…). However, other companies may decide not either of these work and decide on a different approach altogether.

As an alternative, a business may decide to conduct performance testing (Jardine-Tweddie…). These tests are typically computer-based and are used to check an employee’s coordination, reaction time as well as their sharpness of vision. While it does not detect drug use, it shows employers if an employee has any limitations that would affect their performance. Although, it still accomplishes the same goal as many drug testing programs, it does so without the humiliating nature or intrusiveness (Jardine-Tweddie…). This eliminates many of the negative aspects of drug testing. Moreover, it is viewed as a key part of the answer to drug abuse in fields where public safety is a concern (Jardine-Tweddie…).

Employee drug testing has been an area of business law that causes a significant amount of controversy. If a business seeks to perform at its highest potential, drug testing is not the answer. Instead, it lowers employee morale, adds additional expenses for the employer to pay and causes issues with labor unions (Shaffer…). Furthermore, there are alternative ways that would cost the employer less and positively affect the employees.  

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