To Test or Not to Test? Social Welfare Versus Worker Freedom

Abstract

Workplace testing for drug use is a form of warrantless search for incriminating evidence that if found will lead to an array of sanctions. An argument is presented that such testing is constitutionally impermissible, with two exceptions: (1) employers may use drug testing as a device to screen out prospective employees; and (2) employers may use involuntary workplace drug testing to help employees become drug free, so long as no further sanctions are involved. Of course, should workers accept employment in workplaces with prior existent drug-free rules, they have voluntarily submitted to those rules, possibly including drug testing, and the explicit sanctions attached to them.

Keywords:

• civil liberties
• drug testing
• drug-free workplace