Drug Testing Balancing Privacy and Public Safety

Abstract

Recent increases in the use of illegal drugs and problems related to that use have raised a variety of public health and safety concerns and have led many to propose testing as one of the best ways to combat the proliferation of use. Although my focus is testing for drugs, it is worth noting that similar calls for increased testing have arisen due to the spread of the human immunodeficiency virus (HIV) and the threat it poses to those exposed to it. Clearly, these public health and safety concerns conflict with the privacy claims of those being targeted for testing. Nevertheless, many view the public safety threat as serious enough to override completely any individual privacy interests. Indeed, public opinion polls indicate that there is widespread support for a variety of testing programs, even those that are random and mandatory.[1] But it is misleading to view a public policy decision about when and how to conduct tests as a simple choice between privacy and public safety. What is less often mentioned is that the issues surrounding testing programs are far more complex than the foregoing suggests. It is both difficult and unwise to reach conclusions about whether testing programs are justified without specifying what type of testing is being proposed (e.g., blood, urine), what is being tested for (e.g., alcohol, drugs, HIV infection), who is initiating the tests (e.g., government agencies, employers, insurance companies), the goals of the tests and the likelihood that they will reduce or eradicate the problem, the harm that would result without die tests, the costs of the proposed testing program, the accuracy of the type of test under consideration, whether confirmatory tests will be added, whether the testing will be mandatory or voluntary, whether the tests will be random or will selectively target particular groups, whether an identifiable showing of suspicion or performance decline will prompt the tests, and how test results will be used and distributed. Furthermore, one must assess which goals of a particular drug-testing program are achievable, and must balance those against the consequences of the testing. The crucial question is to determine when that balance provides adequate moral justification for the testing. My aim is to address many of these issues by setting out the various arguments and constitutional considerations both in favor of and against certain testing programs. While it should be clear from the above list of concerns relating to and HIV tests that broad generalizations are difficult to make, I shall discuss how major public health and safety goals can be addressed seriously while still taking precautions to protect privacy vigorously. Drug abuse should not be tolerated in the workplace or when it threatens the safety of others. But care must be taken to limit the extent to which testing intrudes on people's privacy. The ideal is to use the technology selectively, with adequate moral justification, and with enough safeguards and precautions to ensure that testing is done thoughtfully and responsibly. Arguments in Favor of Drug Testing Both the government and private employers argue that they have a significant interest in testing citizens and employees for a wide variety of reasons: (1) to fight the drug war by weeding out users and curbing use; (2) to insure safety by revealing conditions that pose a serious threat to co-workers or the public; (3) to maintain an unimpaired and effective work force; (4) to identify those who will be unable to work in the future; (5) to reduce the costs of employee health care plans; and (6) to maintain public confidence in the integrity and trustworthiness of their operations. Insurers argue in addition that testing is necessary because it is fundamentally unfair to require relatively healthy policyholders to subsidize the costs of health care and life insurance benefits for those with high mortality risks, and because banning insurer testing might leave the industry financially unable to afford to offer individual insurance policies at all. …