The Emergence of Drug-Free Workplaces

At the conclusion of the 1970’s the consumption of recreational drugs and self-medicating were at the highest levels ever experienced. In response to these unprecedented highs, in 1986 President Reagan enacted Executive Order 12564. This was an attempt to curb drug use by making workplaces completely drug-free. This order meant that Federal employees were not permitted to use drugs. It also required all federal agencies to develop detailed programs to makes their workplaces drug-free. President Reagan contended that these measures were not designed to punish people and that employees would not lose their jobs or be hurt. Additionally, he promised to provide assistance for drug users.

However, the regulations developed by the Office of Personnel Management to enforce this Executive Order did not pay any attention to the promise not to fire Federal employees who were discovered to be drug users. Their regulations stipulated that an employee could be sacked after only one incident of illegal drug use. If they were found out for a second time, then they must be dismissed. The worst part of these regulations was that it wasn’t relevant whether or not the drug use had any impact on the employee’s work. Moreover, the regulations included such a broad definition of “sensitive” that it covered over 50% of all Federal employees. Disciplinary action (ranging from a written reprimand to enforced leave, suspension or termination of the employment contract) was required whenever a Federal worker tested positive to a single drug test. If anyone refused to take a drug test they could have their employment terminated for the reason of failing to satisfy an employment condition.

The Order was obviously not being enforced in the manned that the President promised. But is this really surprising?

The Drug-Free Workplace Act

The Drug-Free Workplace Act was passed in 1988 in order to strengthen the Executive Order made by President Reagan. This primary impact of this law was all contractors or grantees who had a property or services contract with the Federal government valued at $25,000 or more were required to have a drug-free workplace. This was the first Federal anti-drug law that applied to the workplaces of contractors and grantees. The Drug-Free Workplace Act didn’t make drug testing a requirement in these workplaces, however testing became the accepted standard form by which businesses could demonstrate that they were complying with the legislation.

National Drug Control Strategy

In 1989, President Bush conducted a primetime TV broadcast which unveiled the National Drug Control Strategy. This was a detailed plan developed in order to control the sale and use of drugs. In this broadcast President Bush expressed his support for workplace drug testing, despite the fact that it had attracted controversy for invading the privacy of employees and producing inaccurate results.

Since its release in 1989, the National Drug Control Strategy has been revised and fortified on an annual basis. Each year, the enforcement and punishments have become stricter and individual freedoms have been reduced. More and more government spending is being directed to law enforcement, in an attempt to arrest and jail drug offenders. Less than one-third of the budget is dedicated to research, prevention and treatment of drug users. Treatment strategies are generally based on force, and prevention takes the form of a prohibition agenda.

The strategy was updated again in 1998, this time by President Clinton. This version included a 10 year plan that emphasized saving the youth of America from drugs. Somewhat predictably, this rendition was celebrated by the community. It would be quite unusual for anyone to be against young people becoming drug addicts. However, the one important point that was ignored at this time was the fact that in 1998 drug use had fallen to its lowest level since the historic highs of 1979. This detail didn’t matter to the Clinton administration. They went ahead and devoted even more money as well as an additional 100,000 police to fighting the war on drugs.

Unsurprisingly, the illicit drug that is used most and involved in the majority of positive drug tests is marijuana. Medical marijuana received greater acceptance towards the end of the 1990’s and was eventually legalized in two states (Arizona and California). The strategy developed by Clinton opposed the legalization of marijuana. Regardless of the fact that these initiatives were approved by voters, the Federal government responded by charging organizations that distributed marijuana for medical purposes. This resulted in a standoff between the Federal government and the states that wanted to legalize medical marijuana. One example of this occurred in Oakland, California. In this city, staff working for the Oakland Cannabis Buyers’ Club (an association requiring a doctor’s prescription for members) were deputized by the city council so that they couldn’t be prosecuted by the Federal government.

As well as the increasing community sympathy for medical marijuana, the support for “hempsters” (people wanting to use hemp and hemp products) was also growing. These groups argued that George Washington produced hemp and used marijuana to ease his tooth and gum pains. The government responded to this by saying: “Permitting hemp cultivation would result in de facto legalization of marijuana cultivation because both hemp and marijuana come from the same plant – Cannabis sativa. Chemical analysis is the only way to differentiate between cannabis variants intended for hemp production and hybrids grown for psychoactive properties.”

The legalization of pot would mean that the statistics on drug abuse would fall by over 50%. How could the government then justify all the law enforcement agencies and the money they spend on fighting the war on drugs?

Omnibus Transportation Employee Testing Act

The Department of Transportation (DOT) developed compulsory rules in 1991 which stated that all organizations in the transportation industry (including transit, railroad and aviation companies) to have programs aimed at preventing substance abuse. This included testing for drug and alcohol use. This was a very comprehensive law that spelt out exactly how employees were to be drug-tested. The details covered include the collection site official requesting that the employee remove clothing, how much urine is required for a “sample”, using split samples, testing the temperature of the sample within 4 minutes, the types of tests to be used for screening as opposed to confirmation and so on. It includes provisions that require people operating vehicles from Mexico and Canada to be tested. There are also very specific instructions for how alcohol consumption is to be tested.

The effect of this legislation was that an additional 8 million employees were subject to Federal regulations. It also meant that DOT was responsible for the largest employment drug-testing program in the United States. The expectation arose that companies in the transportation industry would drug test employees before hiring, after any accidents, at random intervals, any time there is a suspicion of drug or alcohol use, and whenever people who have previously tested positive are returning to a safety-sensitive position. This last situation is known as a “post-positive follow-up” test.

If you work in the transportation industry and you tests positive, your employer is required by DOT to report you to a substance-abuse professional before you will be allowed to return to work. If this professional diagnoses that you have substance abuse problem, then you are required to undergo treatment before you will be permitted to go back to work.

The success of the Omnibus Transportation Employee Testing Act prompted the Federal Aviation Administration and the Federal Highway Administration to lower their minimum alcohol testing rates per year from 25% to 10%. These rates apply to commercial drivers and people working in the aviation industry.

Conflicting State Laws

As well as the drug testing rules set by the Federal government, each state also developed laws dealing with workplace drug and alcohol abuse. These laws vary dramatically in each state. For instance, there are 12 states and 2 cities in which random testing is banned or subject to significant restrictions. These are West Virginia, Vermont, Rhode Island, New York, New Jersey, Montana, Minnesota, Massachusetts, Maine, Iowa, Connecticut, Colorado, California and Alaska. State laws also cover on-site testing. In some states on-site testing has been prohibited entirely, while in others the regulations govern the way that the company should handle positive tests.

The states began limiting the use of hair-testing by 1998. The situation is complicated by the fact that new laws and precedents from court judgments arise each year. These new laws, court judgments and results from arbitrations are complied by the Institute for a Drug-Free Workplace, located in Washington DC. They publish the “Guide to State and Federal Drug-Testing Laws”, which is very helpful but expensive and hard to find. You may be able to get access to a copy if you request it from your local or company library. You could also check for further information about drug laws and tests.