ACLU TRIES NEW TACT ON DRUG TESTING

THE American Civil Liberties Union, long opposed to workplace drug testing
as an invasion of privacy, is taking a new tact to curb employers'
compulsion to collect their workers' urine.

Rather than make a high-minded appeal to their sense of fairness and
justice, it instead is simply telling them they are flushing their money
down the toilet. Proponents of workplace drug testing like to justify it by
saying concerns of safety and productivity trump issues of privacy, but it
is fraught with problems. Because testing screens for residue from illegal
drugs, it doesn't test for impairment on the job. That should be employers'
real concern - not what their employee may have done during the weekend.
The result is that employers often end up policing and punishing employees
for behavior that is private and occurs away from the workplace. In
addition, it can reveal confidential information about employees' health
and medical conditions to which employers have no right.

Such arguments have not slowed the growth of drug testing. Some 81 percent
of major U.S. corporations test for drugs, according to a 1996 study from
the American Management Association. Tens of millions of employees are now
subjected to pre-employment testing or must agree to it under the threat of
losing their jobs.

But few employers actually examine if their investment in drug testing is
worthwhile. The management association found that fewer than 10 percent of
its members with drug testing programs have ever conducted a cost benefit
analysis. Instead, the ACLU contends, they have relied largely on "junk
science" and information mostly provided by the drug testing industry.

Building on a body of unbiased scientific research, much of which comes
from a 1994 review by the National Academy of Science, the ACLU issued a
27-page report in September called "Drug Testing: A Bad Investment." The
organization distributed the report to CEOs, union officials and human
resources professionals, urging them to consider less intrusive
alternatives to urine testing.

"Much of the information that has thus far been made available to employers
is not helpful. Most of it is fragmented and superficial," said Lewis L.
Maltby, director of the ACLU National Task Force on Civil Liberties in the
Workplace. "Even worse, it is one-sided: Almost everyone speaking to
employers about what to do about employee drug use comes from the drug
testing industry."

The ACLU contends the major research contradicts the claims of drug testing
promoters. Among those findings was that drug testing is not cost
effective. As an example, it cited a 1990 study that found the federal
government conducted drug tests on 29,000 workers in 38 agencies at a cost
of $11.7 million. Those tests yielded 153 positives or .5 percent - making
the cost to find one drug user $77,000.

Drug testing promoters like to make the case that employers could risk
legal liability if a drug-using worker injures someone and the employer
failed to take adequate steps to detect the drug use.

The ACLU notes that while no court has ever held an employer legally liable
for not having a drug test, employers continue to rack up hefty legal bill
defending their drug tests in cases involving wrongful termination. The
study also attacked long-standing statistics thrown around by the testing
industry.

Studies have claimed that businesses suffer as much as $100 billion in lost
productivity each year. But the report found these claims were made on
vague comparisons of household drug use and income with no analysis of
actual productivity data. In fact, there are indications that drug testing
itself is harmful to productivity.

The report notes a recent study of 63 high-technology companies that showed
that firms with pre-employment drug testing scored 16 percent below the
productivity of firms with no drug testing. Those with both pre-employment
and random drug testing scored 29 percent lower. The authors of that study
suggested drug testing implied a lack of trust that prevented these
companies from getting their best efforts out of employees.

"Drug testing fails to deliver on any of its promises. It is not a very
effective deterrent to drug use, and is especially unlikely to deter
workers with serious drug problems," said the ACLU report. "Drug testing
detects some drug users, but mainly it detects occasional marijuana users,
not drug abusers.

In fact, since drug use is such a poor predictor of work behavior, drug
tests have the potential to screen out as many good workers as bad
workers." The ACLU suggests employers consider more cost-effective
alternatives that do not raise the same concerns of privacy and fairness.

This includes using computer assisted impairment tests that measure an
employees' hand-eye coordination and reflexes in safety-sensitive jobs,
expansion of employee assistance programs to better address substance abuse
and more stringent reference checking before hiring.

"We have always believed drug testing unimpaired workers stands the
presumption of innocence on its head, and violates the most fundamental
privacy rights," said Ira Glasser, executive director of the American Civil
Liberties Union. "Now we know that sacrificing these rights serves no
legitimate purpose either."