William Judge regrets the quiet passing of the 20-year anniversary of what he considers a seminal moment in the nation's effort to eradicate problem drug use. Last September, the 20th anniversary of President Ronald Reagan's executive order establishing the goal of creating a drug-free federal workplace largely escaped the addiction community's notice.
Judge, an Illinois attorney and expert on drug testing trends and technologies, believes society has largely missed an opportunity to link testing with employee assistance and counseling, which he cites as the primary intent of President Reagan's executive order. Addiction treatment professionals have never truly embraced testing as an integral part of their work, he says, and employers in turn have seen testing more as a tool to weed out employees with problems rather than a vehicle for building a stronger workforce with their existing talent.
“We do 40 million tests a year, and there are 2 million positives, but these individuals are not getting the help they need,” says Judge. “This is an untapped market for clinicians.”
In some respects, clinical professionals have largely straddled the fence on the testing issue as testing proponents and civil libertarians continue to argue over legal and policy issues surrounding testing. While most residential treatment programs require clients to submit to drug testing during treatment, and while testing has become a more pivotal element of aftercare, many professionals still don't see testing as having a major role in their work, Judge believes. “Perhaps they feel they're so good at what they do that testing is not needed,” he says.
Still a young field
Although many private workplaces had incorporated drug testing programs prior to President Reagan's 1986 executive order, Judge believes the 1986 milestone took the issue of testing to a new level, giving people reason to believe that testing could be a viable industry.
The next significant moment in workplace testing's history occurred with the U.S. Department of Transportation's 1989 issuance of workplace testing regulations for the transportation industries under its jurisdiction, Judge says. The original rules encompassed interstate transportation only and were limited to testing for illegal drugs, but were amended in the 1990s to include intrastate services and alcohol testing, he says.
Also during this period, as more federal agencies formally instituted regulations for workplace testing, the appropriateness of testing was being evaluated in the federal courts. Judge says the U.S. Supreme Court issued its first testing-related decision in 1989. Early court decisions upheld the Federal Railroad Administration's testing program and validated the random testing of customs officials, who carry firearms, Judge says.
“Literally every federal agency's rules were challenged in the courts,” Judge says, with the judicial system having to weigh privacy interests against the government's interest in bringing about a drug-free workplace. The vast majority of decisions were issued in favor of the regulating agencies, and soon this created a momentum for more employers in safety-sensitive industries to look at testing, Judge says.
But while more employers started mandating testing, very few were facilitating treatment or other outreach for workers who tested positive, and this remains a problem to a great degree today, according to Judge. “We found ourselves removing the worker from the workplace rather than removing the problem from the worker,” he says. “We were saying, ‘Go over there and work.’ We were shifting the problem to other segments of society.”
Judge says the legal and policy questions that govern drug testing have moved from the appropriateness of testing itself to the evaluation of who should be tested and when. Court cases today are more likely to focus on the appropriateness of terminating an employee who tests positive, or a determination of whether a worker who tests positive is eligible for benefits such as worker's compensation, he says.
Judge says there are now about 550 state laws on the books across the country that govern some aspect of workplace drug testing. A Web site that he maintains (http://lawsinhand.dtstatelaws.com) offers updated information on the differences among various states’ approaches. For example, on the site one can read that nine states presently bar employers from requiring job applicants or employees to pay for a drug or alcohol test, while seven states do not allow employers to discipline workers after a first positive test.
Concerns that widespread testing in safety-sensitive industries would cripple operations because of a spate of positive tests and a resulting worker shortage have generally not materialized, Judge says. This had become a concern when the DOT regulations were expanded to include intrastate transit services. “We've never had a positive rate above one-half of 1%,” Judge says. “The transit drivers got the message about testing. That was in and of itself a victory.”
Employers over the years have become more demanding in regard to testing technology and convenience. Knowing that it is not highly efficient to ship to an outside lab a number of tests that mostly are going to come back negative, employers have fueled a push toward more on-site testing options that generate results immediately. “The customer has driven the science,” Judge says.