AFFIRMATIVE — WORKPLACE DRUG TESTING — SIGNIFICANCE 268

WORKPLACE DRUG TESTING VIOLATES PRIVACY

WORKPLACE DRUG TESTING IS AN INVASION OF EMPLOYEE'S PRIVACY

Mechelle Zarou, December, 1999, " THE GOOD, THE BAD, AND THE UGLY: DRUG TESTING BY EMPLOYERS IN ALASKA", Alaska Law Review

Alaska Law Review//lxnx-Sj*

Despite the statutory protections described above, the Act does not appropriately balance the employers' interests with the employees'. The primary problem drug testing presents for employees is the invasion of privacy necessitated by the collection of the sample and the related disclosures required at the time of testing. n102

DRUG TESTING REQUIRES SUBMISSION OF MEDICAL INFORMATION WHICH IS AN INVASION OF PRIVACY

Mechelle Zarou, December, 1999, " THE GOOD, THE BAD, AND THE UGLY: DRUG TESTING BY EMPLOYERS IN ALASKA", Alaska Law Review

Alaska Law Review//lxnx-Sj*

Requiring an employee to submit to drug testing necessarily entails the disclosure of current medical conditions and identification of any current or recently used prescription or non-prescription drugs. As such, the mandated testing is a further invasion of employee privacy. n111 The statute requires the employee to have the opportunity to provide this information to the MRO or to the person collecting the sample, and does not directly require it to be given to the employer. However, it is not clear from the  [*313]  statute whether the employer will have access to this information. n112 Although employees may decline to provide this information, they will be denied the benefit of having the test result reported as negative if the medication they are using may have caused the positive result. n113 This condition unfairly places employees in the position of having to choose to keep their medical information private, risking a positive result based on a medical condition or prescription drug, or to disclose private information that might indirectly be shared with the employer. Such private information could then be used by the employer to justify an adverse employment action, leaving the employee with no recourse to internal grievance procedures or the courts. n114 Moreover, placing employees in this compromising position is further objectionable when on-site urinalysis is conducted by a delegate of the employer. n115 Employees would then be forced to provide confidential information to the delegate, a fellow employee, in order to account for a possible positive test result caused by the use of prescription medication or a medical condition. Such a procedure is a further unwarranted intrusion into employees' private lives. n116

THE COLLECTION OF A URINE SAMPLE IS AN INVASION OF PRIVACY

Mechelle Zarou, December, 1999, " THE GOOD, THE BAD, AND THE UGLY: DRUG TESTING BY EMPLOYERS IN ALASKA", Alaska Law Review

Alaska Law Review//lxnx-Sj*

The collection of a urine sample is the most obvious intrusion on employee privacy. The Alaska Legislature addressed this issue by stating that "sample collection shall be performed in a manner that guarantees the individual's privacy to the maximum extent consistent with ensuring that the sample is not contaminated, adulterated or misidentified." n103 Because this language does not prevent an employer from using his or her discretion to require a witness to observe collection of the urine, the provision does little to guarantee the employee any privacy. The collection of a urine sample poses an additional privacy concern in that the sample provides the employer with confidential information unrelated to drug use. n104 Indeed, a major flaw in the Act is that it contains no  [*312]  provision prohibiting employers from testing the samples for other conditions or use of substances other than illegal drugs. n105 Although employers may be discouraged from testing for these additional conditions by the ADA, n106 and because of the added expense such tests would entail, the Alaska Legislature should have required employers seeking the protection of the Act to refrain from testing for other conditions or for substances besides illegal drugs. Such a provision would have provided Alaska employees with vital protection of their state constitutional right to privacy, n107 while only slightly restraining the actions of employers. n108 The Act should also provide protection against such action by allowing employees recourse to either internal grievance procedures n109 or the courts (as the ADA might require) n110 if the employer does test the sample for substances or conditions other than illegal drug use.

RANDOM TESTING IS MORE INTRUSIVE THAN OTHER METHODS OF TESTING

Lewis, Andrea, SUMMER, 1990 , 56 Brooklyn L. Rev. 1013 , " COMMENT: DRUG TESTING: CAN PRIVACY INTERESTS BE PROTECTED UNDER THE "SPECIAL NEEDS" DOCTRINE? "//lxnx-Sj

Random testing is significantly more intrusive than other testing schemes. But the courts that have considered random testing programs have either failed to distinguish random testing from other types of testing or have interpreted Skinner and National Treasury as implicitly sanctioning random tests. n126 Skinner and National Treasury did not address the constitutionality of random drug testing because neither the FRA nor the Customs Service's testing regulations provided for this type of testing. n127 Hence, there are significant differences between the testing procedures confronted by the Supreme Court and those procedures confroted by other federal courts. n128

Generally, there are four different categories of drug testing programs: pre-employment, post-accident, reasonable cause and random. n129 Skinner and National Treasury dealt with the first  [*1041]  three categories, not the more intrusive random testing method. n130 Random testing is significantly more intrusive for several reasons. First, employees have no advance notice of testing unlike pre-employment testing, for example, where testing takes place at a predetermined time, the person to be tested is given advance notice and the entire process is initiated by the individual applying for the job or the promotion. n131 Second, random testing is not triggered by some event as are post-accident testing and reasonable cause testing.

EMPLOYEE DRUG TESTING GIVES EMPLOYERS A PERISCOPE INTO AN EMPLOYEE'S PRIVATE LIFE

Shepler, Aaron C. J.D. candidate, Arizona State University College of Law, 1999, Summer, 1998, Arizona State Law Journal, NOTE, COMMENTS & LEGISLATIVE REVIEWS: Hart v. Seven Resorts, Inc.: Should the Arizona Constitution Protect Employees from Employer-Mandated Drug Testing?//lxnx-Sj

Employers may curb losses through drug testing, but at what cost to their employees' privacy? Certainly, "[u]rination is among the most private of activities." n6 Yet, employers most commonly use urine tests to detect the presence of drugs in their employees' systems. n7 The procedures used to collect urine samples for drug testing are highly invasive, usually involving visual n8 or aural n9 monitoring of urination. Some testing procedures even require the employee to disrobe and submit to a visual inspection of the body prior to testing to ensure that the employee has not secreted a vial of "clean" urine into the test site. n10 Far more disturbing, however, is what an employer can learn about its employees through drug testing. Urinalyses can reveal "a host of private information," n11 including whether the employee is pregnant, n12 taking birth control pills, n13 HIV- positive, n14 diabetic, n15 epileptic, n16 clinically  [*543]  depressed, n17 or taking medically-prescribed marijuana. n18 In short, a urinalysis is a "periscope through which [an employer] can peer into an [employee's] . . . private life . . . ." n19