In an effort to prevent substance abuse and its consequences, drug testing has become increasingly frequent in workplaces, schools, and athletics. More recently, drug testing has been extended to being a condition of access to social benefits such as welfare and unemployment benefits, but it is complicated by results showing that few test positive. For athletes, drug testing targets performance-enhancing drugs as well as illegal drugs, whereas in the workplace and the social benefits realm, drug testing targets illicit drugs, with marijuana being the most common drug for which people test positive. Opponents of drug testing have argued that it violates the Fourth Amendment to the U.S. Constitution. Thus, balancing a desire to prevent the abuse of illicit drugs and performance-enhancing drugs with privacy concerns remains part of the ongoing debate regarding drug testing policies and procedures.
Many employers require new employees to complete drug testing prior to beginning employment. Among the employers requiring drug testing are retailers, oil companies, and various levels of government. In addition, federal government officials with security clearances, potential employees who operate expensive equipment, and staff who deal with sensitive environments also may be drug tested.
Federal and state courts have allowed drug testing, although certain limits have been put in place. California, for instance, requires there to be a compelling interest to drug test a current employee. At the state and local levels, each jurisdiction has different requirements. Some allow drug testing only in very specific and limited circumstances, whereas others allow drug testing to be done more frequently and with less scrutiny.
Although in the United States marijuana remains classified as a Schedule I controlled substance (i.e., it has no currently accepted medical use) and Attorney General Jeff Sessions indicated in 2017 the possibility of greater enforcement, during the 2010s many states moved to decriminalize marijuana offenses, and some states, such as Colorado, legalized its recreational use. It remains to be seen what impact this will have on drug testing, especially in the workplace. Many have noted that marijuana is detectable in a drug test for 4 to 8 weeks following usage, whereas other drugs deemed more serious (e.g., cocaine) are hard to track.
In 2002, the U.S. Supreme Court in Pottawatomie County v. Earls voted 5–4 to allow drug testing of middle and high school students engaged in extracurricular activities. The decision did not break out solely on conventional ideological difference. Justice Stephen Breyer, who advocates a “living Constitution,” supported the decision, while Justice Sandra Day O’Connor, a moderate conservative, dissented. Justice Clarence Thomas wrote,
Within the limits of the Fourth Amendment, local school boards must assess the desirability of drug testing schoolchildren. In upholding the constitutionality of the Policy, we express no opinion as to its wisdom. Rather, we hold only that Tecumseh’s Policy is a reasonable means of furthering the School District’s important interest in preventing and deterring drug use among its schoolchildren.
As a result, drug testing has expanded for middle and high school students.
Several scandals in athletics have helped make drug testing more common. The World Anti-Doping Agency was established in 1999, and it designs procedures and accredits laboratories and other facilities. It also administers the World Anti-Doping Code. Athletic organizations such as the International Olympic Committee and the U.S. Anti-Doping Agency determine penalties and enforcement. The past 20 years have seen a move toward more uniform standards.
The most recent expansion of drug testing has occurred in access to social benefits. As of March 2017, at least 15 states have passed legislation requiring drug testing to access social benefits. For example, in 2013, the state of Texas passed legislation requiring people receiving unemployment insurance to undergo drug testing; however, as of 2017, the legislation has not been implemented. In 2015, the state of Wisconsin passed a law attempting to require recipients of the Supplemental Nutrition Assistance Program to undergo drug testing, but the federal government stated that states are not allowed to create additional regulations. Laws in states such as Florida have been blocked in the federal courts because of Fourth Amendment violations.
Drug testing laws present two additional problems: (1) difficulty of implementation and (2) results that do not always support the need for the legislation. For instance, it is difficult for states to determine how many recipients to test and who is to be tested. States such as Florida, Tennessee, and Utah have shown that of the people tested, very few have tested positive.
Matthew J. Gritter
See also Drug Trafficking ; Smuggling ; U.S. Constitution
Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, et al., 536 U.S. 822 (2002). https://www.oyez.org/cases/2001/01-332 (Accessed October 2017).
Budd, Jordan C. “Pledge Your Body for Your Bread: Welfare, Drug Testing, and the Inferior Fourth Amendment.” Williams & Mary Bills of Rights Journal, v.19/3 (2011).
National Conference of State Legislatures. “Drug Testing for Welfare Recipients and Public Assistance” (March 24, 2017). http://www.ncsl.org/research/human-services/drug-testing-and-public-assistance.aspx (Accessed October 2017).