A Rejoinder and Update to Ward: The Continuing Saga of Employee Drug Testing
回应沃德对作者早期文章的批评，更新了员工药物检测的法律发展、程序创新和成本效益分析，帮助小企业主了解最新动态。
A REJOINDER AND UPDATE TO WARD: THE CONTINUING SAGA OF EMPLOYEE DRUG TESTING In an article entitled Drug Testing: Aalberts and Walker Revisited, which also appears in this issue, Edward A. Ward (1991) asserts various concerns he has about an earlier JSBM article entitled Drug Testing: What the Small Firm Owner Needs to Know. The latter piece was co-authored by Dr. Jim L. Walker and myself (Aalberts and Walker 1988). Ward's article brings to light more recent information not available in the literature at the time our original article was written. This current article addresses the drug testing controversy with still more recent developments. The purpose of the article is to help small business owners keep up-to-date on changing court interpretations federal and state legislation, procedural innovations, and other factors which continue to create an atmosphere of unpredictability regarding drug testing Ward raised five issues: (1) inexpensive urinalysis is far more inaccurate than the companies providing this service would want small business owners to realize; (2) the chain-of-custody requirement may be seen as irritating as well as embarrassing for both parties involved; (3) the extent to which small business owners can monitor off-duty drug use is an unresolved legal question; (4) the positive result found with a valid urinalysis does not indicate that the employee was intoxicated on the job; and (5) the legal requirements of drug testing vary from state to state and require frequent review by a small business owner. In this rejoinder to Ward, I shall basically follow these five points, updating his research to include the latest cases. To save space, points 3 and 4 will be discussed together. In our article as well as in Ward's, it was pointed out that the EMIT test by itself is highly unreliable. In particular, it was noted that there are problems with false positives for legal drugs and food. False positives render such tests legally indefensible and leave the employer open to expensive litigation and damages. All this is still true today and, in fact, the small business owner would be advised not to test at all rather than use just the EMIT test. Employee drug use may be expensive, but so are lawsuits and insurance premiums. The small firm owner might wish to consider the following information in deciding whether to drug test. The U.S. Chamber of Commerce recently stated that a recreational drug user is one-third less productive than other employees, is four times likelier to be involved in injuries on the job, is three times more inclined to be tardy, twice as likely to request early leave, and two and a half times more likely to be out eight or more days a year (Schwartz 1989). These data should be weighed against the cost of drug testing, which can run into the thousands of dollars. Thus, in weighing these costs, simply using the EMIT test alone would be foolhardy, since the cost of a possible lawsuit would tip the scales against such a marginal procedure. In deciding whether to drug test, the small firm owner should be apprised of the following legal development as well. In March 1989, the U.S. Supreme Court ruled on two monumental cases which will help to clarify the EMIT issues as well as many other drug testing issues. The cases, Skinner v. Railway Labor Executives Association (1989) and National Treasury Employee Union v. Von Raab (1989) dealt with two drug testing schemes for railway workers and U.S. Customs workers. It should be emphasized that in both of these cases the tested workers are protected under the U.S. Constitution, in particular, the Fourth Amendment, which prohibits unreasonable searches and seizures. This is a right not usually accorded to private sector employees (Bible 1986). However, these cases may be applicable to small firm owners in at least two ways. First, because of Skinner, the treatment of employees working in small businesses heavily regulated by governmental agencies will be influenced by these cases. …