In the article entitled Drug Testing in Employment by Joseph Desjardins and Ronald Duska, an interesting take on the relationship between the right to privacy and drug testing is made. Privacy, as the authors argue, is essentially an “employee right”. The right to privacy in the workplace pertains not to the owner of the establishment or in this case the employer but rather to the employee who works for the employer. These conventional views rather support the theory that mandatory drug testing can be implemented in the work place but under certain conditions, one of them being that it must be job related.
This short discourse will tackle a few of the points made by the authors in the article and will present an alternative view with regard to the issue of drug testing in employment. As mentioned in the article, there are essentially two views concerning drug testing in employment, the first view allows mandatory drug testing within the workplace as long as a causal connection can be established between work or job performance and the use of drugs.
This is further justified by the statistic which shows that over US$25 billion is lost every year due to decrease in productivity from the use of drugs by employees.
A Critique on Drug Testing in Employment by Joseph Desjardins A Critique on Drug Testing in Employment by Joseph Desjardins A Critique on Drug Testing in Employment by Joseph Desjardins
The second view argues that drug testing should be allowed if it harms the employer, the employee and the public.
Furthermore, the authors support this second view by citing certain allowable restrictions on this right to drug testing so as not to be offensive to the Constitutional Right to Privacy. The main argument of the Desjardins and Duska revolves around the restrictions that must be imposed on the mandatory drug testing. They essentially argue that in order for drug testing to be acceptable in the workplace there must be certain limits that must be set in place.
One of these limits is that no employee should be compelled to submit to drug testing. While there is a drug testing program that is implemented in the workplace, no employee can be required to submit to it. In relation to this, the authors present situations wherein it is allowable to request an employee to submit to drug testing but again it may not be required of the employee. Also prohibited are the use of coercive measures to make the employee submit to drug testing such as the threat of losing employment or even certain employment benefits.
It must be pointed out that while the authors do take a stand for the protection of the privacy of employees, the arguments that have been presented must be rejected for lack of sufficient basis and alternatives for the following reasons. First of all, no right, even those granted by the constitution, is absolute. Every right that a person is granted is always subject to certain limitations and restrictions. In the same way that a person’s right to privacy may be invaded on the strength of a search warrant.
The setting of being in a workplace is not so much different that it is capable of being given a different treatment. In fact, more restrictions on the right to privacy can even be imposed because of the setting. It must be remembered that in the sphere of human rights, there is a correlation between the rights of one individual and that of another. One is only free to act within the bounds of his privacy or rights as long as such acts do not unduly or excessively interfere with the rights of other people.
As the authors would argue, drug testing can be implemented but the participation by the employees must be voluntary. This view cannot be sustained in line with the argument that no right is absolute. The reason behind this is that there is a greater concern behind all of this and this is public safety. While it may be a restraint on one’s privacy, it is for a greater cause; a cause that everyone in the country has submitted to and vowed to uphold.
The second and perhaps more compelling reason why drug testing should not be made voluntary is the fact that it does not technically violate the constitutional right to privacy. The authors extend the coverage of the right to privacy to drug testing. In a long line of cases decided upon by the United States Supreme Court, it has been consistently held that physical testing of an individual can be compelled. There is no violation of the right to privacy in this case unless the test was carried out without due process.
In this case, requiring an employee who is suspected of taking harmful drugs or those that can affect work performance can be required without worry of violating the employee’s right to privacy. While the arguments presented by the authors are not clearly substantiated in the article, the must, however, still be lauded for their efforts in trying to uphold the individual’s right to privacy. Drug testing can be used as a means of harassing employees or even as a way of firing those employees who are unsatisfactory without going through the entire legal process of giving notice.
No legal system, no business model is perfect. There will always be a struggle between rights of employees and that of the employers. The solution may or may not be far away but one thing remains clear. Until and unless a certain compromise can be made to thus balance these corresponding rights there will be more controversy surrounding this issue. The employee is already well protected under the Labor Laws of this land and his effort is greatly appreciated yet one must also consider that without the employer or capital most of these employees would not have any jobs at all.