Last week I was on a job interview when they asked me one of the classic questions: “If hired, would you be able to pass a drug test?” We’ve been hearing about this issue for at least thirty years now, and the sides haven’t changed much; people on the Left claim that any form of drug testing is a violation of an individual’s right to privacy, while people on the Right insist that society has to be protected from people who might do things while intoxicated that would threaten the safety of everyone else. Hardly anyone ever argues that an employee who shows up for work drunk, or falling-down tired from not having slept for several days, should not be allowed to operate sensitive equipment, handle hazardous materials, or drive on public roads, but most people will also acknowledge that we already have laws that prohibit most of these things (and civil statutes that would allow people to sue for damages if such things were allowed)…
As usual, I’m inclined to leave questions about right and wrong to those better qualified to answer them; the question I’m posing today is whether we, as managers, have the right to ask our employees about their lives outside of the workplace. Clearly, this isn’t a simple yes-or-no question; it’s a continuum that runs from never asking anyone anything about their personal lives once they have been hired, to requiring them to account for every moment of their lives, on the job or off. The exact point on the continuum that is appropriate will vary with every job – and with nearly every employee and supervisor as well. What becomes problematic is when the parties do not agree on where that point is; when management want to know more, employees want to tell less, and third parties start using the situation to score political points. It is this conflict to which I direct your attention…
In a perfect world, no one would care what people do in their off time; they’d still show up every day, do the work assigned to them, and perform within the levels required. Of course, a perfect world also assumes schedules that do not change, lives and relationships that do not encounter crises, employees who are never sick, injured or traumatized, and managers who never use employees to cover roles or duties for which they are not prepared. An employee who normally maintains a perfect 12-hour “bottle to throttle” rule (never drinking within 12 hours of having to drive) may still be buzzed if called upon to pick up an extra shift – and the same could apply to any other recreational activity (legal or otherwise) if you start randomly requiring people to change schedule. The same problem could come up with child care issues, night blindness, random illness, or dozens of other issues if a supervisor does not know about the lives of his or her employees and is not allowed to ask…
By the same token, a lot of people (not just drug users) do kid themselves about their ability to function, and there are jobs on which a hangover (or a drug flashback) would place dozens or hundreds of people at risk. Imagine a school bus driver having a drug flashback, or an air traffic controller with a hangover, and then ask yourself if you’re comfortable with the honor system. A good manager, working with people he or she has known for years, who trusts and is trusted by the employees, can usually prevent this kind of problem, but you don’t really know the employee you just hired; can you be sure that you know what they are going to do?
I’ve never heard of anyone seriously advocating random drug testing of people off the street (anyone who didn’t need to be tested for drugs themselves, anyway), but by the same token I’d like to know that the guy driving the truck loaded with nuclear waste in the lane next to me isn’t tripping on LSD while he tries to change lanes. So I have to ask you, do we have an ethical responsibility, whether to society, to our customers, to our other employees, or to our stockholders, to investigate whether a given applicant has a personal problem (dugs or otherwise) that could make it dangerous for them to do the job we’re going to give them? Or does our responsibility to respect the rights of the individual to privacy also require us to hire any applicant based on skills, knowledge and experience, and let the chips fall where they may?
It’s worth thinking about…
8 comments:
Hi Max,
I come down firmly on the side of individual privacy myself. However, I agree there are situations where we need to prevent people from working in a state of impairment which might result in harm to themselves or other people. As you say, the issue is where you draw the line and whether you think drug testing is the best way of preventing such harm. I believe employers do have an ethical responsibility to safeguard people from harm but they need to weigh this against the ethical responsibility to respect individual privacy and freedom of choice.
I think you do need to consider whether it is ethical to drug test employees. If you look at the options for drug testing from the point of view of the major ethical theories of Utilitarianism, Kantian ethics, Virtue ethics and Rights theories the only ethically defensible option seems to be to test only those employees working in critical areas. There is no justification for invading the privacy of an employee when safety is not an issue.
Although I do not think you can defend it as an ethical practice, advocates of drug testing often argue that drug testing is a valid way of predicting or measuring performance. I would argue that you can test performance in a much more effective way by using performance monitoring methods without invading the privacy of your employees. The fact that an employee’s drug taking ‘might’ have an effect on performance is a much less useful result than a test that measures their actual performance. I am surprised, given the cost entailed, that so many companies seem to advocate universal testing. Surely, in these recessionary times, efficiency and cost-effectiveness ought to be more of an issue.
Another reason for preferring performance monitoring over drug testing is that, as you say, drugs are not the only things that can seriously impair performance. Stress, low blood sugar, lack of sleep, even lack of training or sheer incompetence can impair performance equally, if not more, than drug use. A well-managed organisation with good training, good managers and good safety procedures is a much better means of increasing productivity and ensuring safety than drug testing.
Jan B
Before deciding whether the invasion of employee’s privacy by drug testing is justified a few things need to be considered. For one, how do you choose who to drug test and who not to? When a new employer asks you to take a drug test is it because the work you do has the potential to cause some kind of risk to others, or are they interested in any underlying problems that may affect your performance down the track? Another thing to ask is what kind of drugs are being tested for? If someone does fail a drug test, what is going to be done with that knowledge? These are all valid questions that need to be answered, but before these questions there is another – is it absolutely necessary?
We all have a right to privacy, and we should hold on to it dearly. Drug testing is an “invasive procedure” against that right to privacy http://gilc.org/privacy/survey/intro.html . We need to make sure we don’t invade anybody else’s privacy. I personally would not want to give away any information about myself that may have a negative impact on the way others perceive me. There is that age old saying “treat others as you would have them treat you”.
Dejardins and Duska (2001) believe employers have two main reasons for wanting to drug test their employees – it apparently increases performance/productivity and it decreases the chance of employees causing harm to others because they are under the influence of drugs at work. They go on to argue that employees should be judged solely on their performance of carrying out the job they have been employed to do, not whether they may or may not be using drugs outside of work time (p.285). If someone’s drug use or anything concerning their outside lives is affecting their work performance, this should be relatively obvious to employers. They should not need to carry out a drug test. The issue should be that the employee is not performing – not that they are taking drugs outside of work. Most people’s performance at work will not be affected if they occasionally use drugs in the weekend. Someone’s performance may not suffer at all if they have a small amount of a drug in their system (Scholes, 2009, M2, p. 7). They are still performing as they have been employed to do, and all employers really need to be concerned about is whether their employees are doing the job they have been paid to do. So considering the answers to the reason that drug testing improves productivity/performance – the answer here is it is not necessary.
The second reason for testing employees is someone under the influence of drugs can cause harm to others when carrying out some types of work (Dejardins and Duska, 2001, pp. 286-287). There is no argument from me that intoxicated people are a great danger, but there are some things to consider. It would be really obvious to all involved if someone turned up to work drunk, or falling down tired, and you would think it would be equally obvious if someone was under the influence of drugs, and therefore should not be operating heavy machinery, or doing something potentially harmful to others. The drug test is unnecessary because it should have been obvious to managers that there was an issue – that the employee’s ability was impaired –and it needed to be addressed immediately. I think, in terms of a worker being intoxicated in a hazardous workplace, they would show clear signs of intoxication and employers would have to remove them from the workplace – removing the potential hazard without resorting to invasion of privacy (Dejardins and Duska, 2001, p. 289). Employers also have a responsibility to make sure their employees are in a fit state relative to the type of work they are doing http://www.osh.govt.nz/order/catalogue/hseact-text/hse2.shtml – this is why there is an argument for drug testing. But drug testing is not the most effective way to test if a person is in a fit state; it is retrospective, and doesn’t actually tell us a person is going to turn up for work in the future under the influence of drugs or what their performance is going to be like (White, 2003 p. 1897).
Thank you for the comments. If you ask most people about the drug testing issue, you'll probably get a quote from a Founding Father or a platitude from someone more current - neither of which is any help...
I generally don't know the answers to these ethics questions (assuming they have answers in the first place), but I know that we will never get anywhere if we don't discuss them - and think about them...
part 2
Using drug testing were it can prevent harm does not give the employer the right to know about the drug use of employees. There should be guidelines to deciding which jobs pose as serious threats, there should be clear and present danger in order for the employees to request drug testing. Jobs that requires zero tolerance on mistakes should be given priority eg airline`s pilots, surgeons etc. other jobs which are not critical that can only cause harm in exceptional case eg secretaries, athletes, these jobs don’t need to be scrutinised.
Not every employee should be tested, it is not appropriate to treat every job that poses danger the same. They are not all threatening especially if the employees has been employed by the same employer for a long time and have a clean employment record. Only people with erratic behaviours need to be tested. If knowledge of drug use is justified to prevent harm, the justification should be limited to a range of the jobs that can clearly cause harm.
There is need for recognition that as long as the employer has the discretion for deciding when the potential for harm is clear and present, which employees poses the treat the possibility of employee abuse is great. There has to be some policies limiting the employers power to avoid damaging some innocent employees personal and professional reputation and also from losing their jobs. Requiring all employees to undergo drug testing could be coercive and unacceptable and putting the employees in such a position of having to choose between ones job and privacy does not provide conditions for a free consent. Employers should give prior notice of drug testing as preventing drug use will be morally acceptable than punishing the users after the knowledge. Employees are treated as capable of making rational decisions the information obtained through drug testing should be treated confidentially.
Justification of drug testing is justifying the means to an end, end of harm prevention. This means invade privacy. If the information of drug use is going to prevent harm on the grounds of prevention then the testing is not justified. Drug use is irrelevant in determining the employees ability to perform, asking for this information from the employees, will be claiming the rights to know much information not necessarily related to the employees job performance.
(Desjardins,J. & Duska, R. 2001.Drug testing in employment. Ethical theory in business 6th ed pp. 283-294.)
The whole problem with drug testing is that it is an ethical gray area. Clearly, everyone should have the right to privacy regarding what is in his or her bloodstream; just as clearly, anybody whose job performance could literally be the difference between life and death must be held to a higher standard than people who don't do such a job...
From a business standpoint, requiring any test or certification of an employee when that requirement is not necessary represents a waste of time and money even before we address the issue of employee morale or privacy rights. The problem is that "necessary" is a subjective term...
Part 1
Privacy is an employment right, these rights prevent employees from being coerced into choosing between their jobs and basic human personal life. According to Joseph DesJardins and Ronald Duska the relationship between employees and employers is an economical one that only exists as a means of satisfying economic interests of the two parties. Based on that contractual relationship some areas of the employee life remains their own business, no employer should invade their private life.
According to George Brenkert a right to privacy is violated when one part deliberately come into possession of information that they are not entitled to. The relationship between the employee and their employers does not entitle or justify the employers to know about the employee’s private life unless it affects the terms of their employment contract. If personal information from employees is requested, collected, or used by an employer it violates the employees’ privacy. This information is irrelevant to the contractual relationship that exists between the two parties that is that of economic relationship.
The employee privacy rights are violated when personal information that is not related to the employment is collected and used by the employer. Drug testing is ethically relevant if it is within the terms of employment of which the employer should clearly states. The information sought by drug testing must be relevant to the contract in order for it not to be in violation of employee privacy, unless it is relevant to the job. Otherwise if not then the employer is not justified to subject employees to drug testing. In the case that the drug testing is job relevant there is need for consideration for when ,and what conditions should a means of using drug testing to obtain knowledge be justified.
If the drug use adversely affects job performance, productivity and the employers eligibility criteria upon which employees are contracted to, then the employer have a legitimate right upon whatever personal information that is only relevant to these employment criteria. Drug testing can be legal if the use of drugs can be responsible for considerable harm to the employee, other employees, the employer or other third parties associated with the employer. If this is the case then drug testing can be defended as employers are liable for any harms or accidents at work to the employee or other employees and to third parties. Knowledge of drug use can be used to protect the employer from the liability risk.
Do we, as managers, have the right to ask our employees to justify what they do outside of work? My simple answer to this would be, only as far as it impacts on their work.
Employees have the right to expect that their privacy be maintained, this is not an unreasonable request. The argument is that drug use impacts on the employees’ performance and on Health and Safety.
Where an employees’ performance is affected, a drug test is seen to identify the use and act as a tool to help increase performance. If the use of drugs is suspected, are the results of a drug test really relevant to help increase performance? There are many incidences of employees taking illegal drugs where it does not affect their performance (or the employees performance meets the employers required standards) – It is my argument that because this does not impact on the employees’ work, it is of no consequence to the employer.
Where performance issues do arise, a manger should deal with this as they would any other performance issue, through performance management and/or disciplinary procedures. They would not look at this as a drug issue, but merely a performance issue and treat it as such. It is my view that there is no need to undertake drug testing in this instance, as the results are irrelevant – employers have other more effective ways of deal with performance issues.
Health and Safety is a different issue, employers are required to maintain a safe working environment for all employees. Would the knowledge of an employees’ drug use help to keep the workplace safe? My initial response to this would be yes, but there are several factors I would consider, one being the job type – If I was an office assistant, would my job hold the same health and safety risks as if I were an airline pilot? No of course not, so my argument would be that your job would have to be one that had the potential to cause harm before a drug test could be of benefit.
Secondly, I would question how relevant the information you receive is – If you could take an accurate drug test that would return a result immediately prior to operating heavy machinery, I could see the benefit, but when the sample has to be sent away to be tested, and you wait for results, then there is little relevance as time has passed.
And one other point to note is that although a drug test comes back positive, it does not mean the individual is not fit for the job. These tests do not actually measure how impaired that person is, Chris Fowles (2009) talks about the THC from marijuana staying the body for several months after use he goes on to say that because urine analysis does not measure the presence of THC it cannot indicate when cannabis was inhaled or ingested, or whether a person is impaired, so they may be perfectly able to carry out their job safely and may be being unfairly isolated
One might also ask what the employer will do with the information they gain. One assumes they intend to act on it (otherwise what was the point in collecting this information) and if they do enforce some kind of punishment (ie dismissal, drug rehab etc), one might ask if this is just – what gives an employer the right to punish for an activity that occurred outside of working hours, that is what our justice system is for.
So although I am not totally against drug testing in the workplace as a means to minimise risk in relation to health and safety, I do not think it warranted in all instances.
Of course we must employ based on skills, knowledge and experience, however, employing someone can be a timely and costly exercise which involves risk and we reduce this risk by accessing private information, ie: looking into previous employment records, training records and contacting referees. I do not see that pre-employment drug testing is any different than gathering other forms of information, it is a tool to help manage the risk.
It is an employers’ responsibility to minimise these risks especially in relation to health and safety in the workplace, one could argue that pre-employment drug testing is helping to minimise this risk, or at the very least identifying candidates that may pose a risk.
I guess to a certain extent I agree that pre employment drug testing may be unreasonable, drug use does not always mean reduced performance and there are alternatives to assessing an employees’ capabilities, one being to employee someone on a trial period, but when it comes to pre-employment drug testing, I would argue that the individual applying for the position has a choice. They choose to apply for this job. No one is forcing them to work for this company, however, if they decide to work for them, they may be required to pass a drug test. I do not see this as a violation of privacy, I see it as another pre-employment tool for which the individual has consented – I choose to apply for the position under the terms and conditions as stated in the employment advertisement /interview, as I choose to give you my referee’s details and allow you to contact them to speak about me.
At this stage of the employment process, you don’t know the people that you are employing, and I think a company is ethically bound to make sure they minimise risks in relation to health and safety and drug testing is a tool to help them achieve this result. We consider privacy to be an employees’ right, however, at this stage I would argue that the individual is not yet an employee and I believe that the employers rights out way that of the ‘prospective’ employee.
References
Belin, M. (2012). The Ethics of Drug Testing. Retrieved January 1, 2013 from http://notesonabusinesspage.blogspot.co.nz/2012/01/ethics-of-drug-tests.html
Department of Labour. (2012). Laws on drug testing in the workplace. Retrieved January 8, 2013, from http://www.dol.govt.nz/workplace/knowledgebase/item/1361
Department of Labour. (2012). Trial Period. Retrieved January 8, 2013, from http://www.dol.govt.nz/er/starting/relationships/agreements/trialperiod.asp
DesJardins, J, & Duska, R. (1987). Drug testing in employment. In T. L. Beauchamp & N. E. Bowie (Eds.), Ethical theory and business (6th ed., pp. 283-294). Upper Saddle River, NJ: Prentice Hall.
Flowlie, C. (2009). Guide to Drug Testing. Retrieved January 11, 2013 from https://norml.org.nz/rights/guide-to-drug-testing/
The Open Polytechnic of New Zealand. (2012). Modules Two: 71203 Business ethics. Lower Hutt, New Zealand:
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