HaCKeRz Kr0nlcKLeZ 1/HaCKeRz Kr0nlcKLeZ.iso/drugs/why.restrict.private.testing

Internet Message Format | 1996-05-06 | 17.6 KB

From: [e-mail] (Paul Hager)
Newsgroups: alt.drugs,talk.politics.drugs
Subject: Position Paper on Drug Testing
Date: 28 Jan 91 20:43:47 GMT

    Following is a position paper I prepared in support of a
Bill that would prohibit companies from drug testing their
employees without having "probable cause".  This Bill is being
introduced in the Indiana Legislature by Representative Jerry
Kearns of Terre Haute.  Because I am going to be out of town on
business when hearings are scheduled to take place, I submitted
the paper to several local legislators at their bi-weekly
televised press conference held this morning in Bloomington.

                        -- Paul Hager
                           28-Jan-1991

        Reasons to Support Mr. Kearns' Bill
         to Restrict Private Drug Testing
    by Paul Hager, Bloomington Civil Liberties Union
        Chair of Ad Hoc Drug Policy Task Force

1.0 Introduction

    The prevalence of workplace drug testing in Indiana is a
serious threat to individual rights.  Moreover, it is unnecessary
and ineffective.  It detects the inactive byproducts of drugs long
after their intoxicating effect has disappeared; it fails to
detect impairment from numerous causes.  Alternatives directly
testing for impairment are available and cost-effective -- and
such alternatives do not compromise the individual's right of
privacy.

2.0 Drug testing defined

    As it is currently employed, "drug testing" is really a
method by which the metabolites of certain drugs are detected in
urine excreted from a person's body.  The term "metabolites"
refers to the _non_active by-products of an ingested substance
that has been "metabolized", or broken down, by the body _after_
use in order to facilitate its removal from the system.  Because
the overwhelming majority of "positives" (i.e., the metabolite is
detected) occur with cannabis, I'll limit my discussion to this
substance.

    The technology for detecting cannabinoid metabolites has been
amply described in the technical literature[1].  In order to
better understand this technology and to focus in on what drug
tests really show, I will sketch out the process by which the main
active intoxicant, THC (delta-9-tetrahydrocannabinol) is converted
into the metabolite having the highest concentration in urine,
THC-COOH (11-nor-delta-9-tetrahydrocannabinol-9-carboxylic acid).

    Shortly after smoking one "marijuana" (marijuana is a
smokable form of cannabis) cigarette, THC in the blood of the
smoker peaks at a concentration of between 100 to 500 ng/ml
(nanograms per milliliter)[2].  There is a very rapid fall-off
of the THC concentration to nearly undetectable levels (generally
less than 2 ng/ml) in 3 to 4 hours.  It should be noted that
clinically detectable intoxication from cannabis (in other words,
being impaired or under the influence) occurs at a concentration
of 25 to 50 ng/ml[3].  What this means is that intoxication or
impairment is a short duration phenomenon.

    The rapid decrease of THC present in the blood to very low
levels is followed by a so-called "beta phase" in which the
decrease slows, with a half-life of perhaps 5 to 7 days.
Throughout all phases of THC metabolism or breakdown, THC-COOH is
being produced and excreted from the body in the urine.  It is
this long beta phase that makes drug tests for cannabis use
"effective" in that detectable levels of THC-COOH can be found in
the urine many days (in some cases weeks) after initial ingestion
of the THC.

3.0 The issue of impairment

    Central to broad public acceptance of drug testing is the
mistaken idea that a positive drug test shows a person to have
been impaired.  As indicated in the discussion above, impairment
does correlate with THC blood concentration but not with THC-COOH
metabolite urine concentration.  The same can be said of the
metabolites of other substances being screened for in drug tests.

    Consider the case of one of the most popular drugs, alcohol.
As we all know, abuse of this drug costs society billions of
dollars in terms of accidents caused by persons who are
intoxicated _and_ impaired.  The purpose of the familiar
breathalyzer test is to gauge the blood alcohol concentration
(BAC) of a person and match it with legal guidelines of what BAC
level is unacceptable.  However, even a given BAC, in and of
itself, does not guarantee that a particular individual is
impaired in absolute terms.  The BAC "legal limit" is, after all,
derived from a study of average response, within a test
population, to the effects of alcohol.  In other words, there is
nothing magical about a BAC of 0.1 that _ipso facto_ means
physical impairment[4]; it must be validated by objective,
independent tests.  One of the ways that the BAC limit can be
validated is by means of devices that measure the ability of an
individual to perform certain tasks requiring physical dexterity,
fast reactions, judgement, and so on.  These devices, known as
"impairment testers", run the gamut from fairly simple measuring
devices to full-fledged simulators.  Perhaps the best illustration
of the value of impairment testers is the recent finding that the
effects of moderate alcohol consumption linger 36 to 48 hours
after the last drink.  Performance of airline pilots on aircraft
simulators used as impairment testers revealed a statistically
significant reduction in motor control and reaction time.  Please
note: no drug test would show this alcohol-induced impairment, yet
it is conceivable that a completely unimpaired pilot could flunk a
drug test because (s)he happened to be in the same room with
marijuana smokers and inhaled secondary smoke several days
earlier[5].

    Abuse of particular drugs (such as alcohol) is not the only
source of impairment.  In a recent article in _Time_ magazine[6],
it was reported that sleep researchers claim that lack of sleep is
"at lease as important as drugs, alcohol, and equipment failure"
in accidents.  In fact, the article states, "drowsiness is a
leading cause of traffic fatalities and industrial mishaps."  No
amount of drug testing will ever detect the worker who is
stressed-out and sleep deprived from marital problems and who is
placing him/herself (or others) at risk on the job.

    Clearly, if the justification for workplace drug testing is
to detect worker impairment, then it is an argument with no
substance.  In contrast, the use of devices that actually measure
impairment would detect people who were unable to perform up to
acceptable standards irrespective of whether it was from
intoxication, sickness, sleepiness, tension, etc.  Such devices
already exist and are being used.  For example, a company based in
Hawthorne, California produces special hardware that is added onto
an IBM PC and is then used to test workers' motor control and
reaction time.  This device is being used to test municipal bus
drivers to determine if they are fit and able to drive.  Unlike
drug tests, which are fairly expensive (up to $100 or more per
test), an impairment testing device encourages frequent use.  For
example, a $3000 impairment tester only has to be used 30 times to
pay for itself and remember, unlike the drug test, the impairment
tester measures _real_ impairment.  Typically, an impairment
tester could be used at the beginning and end of _each_ work day
for _each_ employee if the job were safety critical.  Even if
there were one impairment tester per employee (an obvious
extravagance), the devices would pay for themselves after 15 days
of use.

4.0 The issue of productivity

    A more subtle issue in drug testing is the matter of worker
productivity: does illegal drug use correlate with higher rates of
absenteeism and likelihood of termination?  Although many claims
have been made that illegal drug USE (as compared with ABUSE)
costs employers billions of dollars in lost worker productivity,
actual experimental validation of this thesis is inconclusive.
John Horgan, in a piece entitled "Test Negative" in the March 1990
issue of _Scientific American_, does a good job of documenting how
exaggerated claims of lost productivity either were created out of
whole cloth or were actually based upon alcohol ABUSE and not
illegal drug USE.  Rather than cover the same ground as Horgan, I
am appending his article to this document.

    The most recent research into this issue was reported in the
Journal of the American Medical Association (JAMA)[7].  Although
this study did show a correlation of a positive drug test with
adverse employment outcomes it also showed that the consequences
were much lower than proponents of drug testing have claimed.
Further, the researchers didn't control for alcohol abuse and they
noted that alcohol abuse correlates with other drug abuse[8].  In
other words, to the extent that there was a difference between
people who tested positive in the prescreen and those who did not,
this difference could have been explained by a pattern of multiple
substance ABUSE that skewed the adverse outcomes of the people who
tested positive.

    In the same issue of JAMA, Dr. Eric Wish, referring to the
study, stated the following in an editorial[9]:

    "It may benefit our society more to invest its resources in
    testing and treating the overwhelming number of dysfunctional
    drug _abusers_ [emphasis in the original] coming through the
    doors of the criminal justice system each day, than for
    industry to use its limited resources to find the
    comparatively small number of recent, mostly marijuana
    _users_ [emphasis in the original] in primarily law-abiding
    employee populations."

Dr. Wish began and ended his editorial with the distinction
between USERS and ABUSERS -- a distinction that he suggests has
fallen out of favor for political rather than scientific or
medical reasons.

5.0 The civil liberties dimension of drug testing

    There was a time when the distinction between USE and ABUSE
of another popular drug, alcohol, ceased to exist: during alcohol
prohibition (1919-1933).  Given that over half of the population
of the U.S. now USES alcohol, any suggestion today that USE of
this drug should be equated with its ABUSE would be considered
ludicrous.  Yet, this very same logic is being applied to another
class of drugs.  While the issue before the Indiana Legislature is
not whether the legal status of certain drugs should be reviewed,
the issue of the extent to which private conduct should be subject
to public scrutiny is.

    As I indicated above, there is no rational scientific
justification for drug testing based upon detecting worker
impairment nor is there a reliable showing that use of illegal
drugs adversely affects worker productivity.  The final
justification can only be the blanket application of a sanction
against a minority engaging in a proscribed behavior.  Because the
U.S. Constitution protects citizens from the excesses of a
government overzealously pursuing wrongdoers, drug testing has
evolved as a convenient way around the highest law of the land by
encouraging what is, in effect, corporate vigilantism.

    Consider the full implications of this grant of corporate
authority.  Similar rationales can be used for many other
intrusions by a company into the affairs of its employees.  For
example, U-Haul (the truck/trailor rental company) has instituted
a program whereby overweight employees are "fined" a percentage of
their salary.  Although there may be some actuarial justification
for claiming that overweight people have more health problems
(read, more likely to suffer lost productivity), it would be
unthinkable for the federal government to place a "fatness"
surcharge on people even if it could be argued that it was in
their "best interest".  Yet, this surcharge is legally being
levied against the workers at U-Haul on the grounds that they cost
the company money on health premiums.  And what of the problem of
sleep deprivation?  As I indicated above, the evidence is that
drowsiness is a much more serious problem in the workplace than
marijuana ABUSE (as distinct from USE).  If a company can drug
test, why can't a company also inquire into the state of one's
marital relationship, given that problems can spill over into the
person's job?  How would people feel knowing that the company for
which they worked could hire private investigators that would
check up on them to find out if they got along with their spouses?

If this sort of thing were to become common corporate practice,
what recourse would the individual worker have other than
government?  The role of government is, first and foremost, to
protect the rights of individuals, not the perceived self-interest
of large companies.

    Article I, section 9 of the U.S. Constitution provides for
suspension of _habeas corpus_ only in such extreme cases as
rebellion or invasion, and then only when public safety may
require it[10].  The Constitution makes no provision for
suspension of other protections and yet the War on Drugs is being
treated as a dire peril demanding that people surrender their
control over their own bodies -- that unalienable right of life
described so eloquently in the Declaration of Independence.
Transient majorities operating on the basis of misinformation
should not be able to restrict individual rights.  Today, there is
widespread public hysteria about illegal drugs.  The average
person views illegal drug USE as a growing problem despite the
survey research that demonstrates that all drug use has been
declining since the late 1970s[11].  Even if one considers illegal
drug USE a problem, why threaten individual rights on the basis of
a problem that is diminishing every day and was diminishing before
anyone ever thought of workplace drug testing?  From a public
policy standpoint, this makes no sense.

6.0 The role of the Indiana Legislature

    There is no utilitarian argument for drug testing nor is
there a danger from drug use that is so imminent and so pressing
that we should suspend our Constitutional rights.  Although I
think that Mr. Kearns' proposed legislation which allows drug
testing for cause is still too permissive, I think it is a
suitable compromise position.  Allow me to amplify.

    Although a majority of Hoosiers have been shown to favor
workplace drug testing, that majority becomes a minority if the
drug testing is random.  Clearly, the public favors drug testing
only if there is cause.  Were the public generally aware of the
facts I've laid out in this document, I think public support for
any testing would evaporate, but I am also aware that public
education takes some time.  I would hope that Indiana legislators
would meet with their constituents and acquaint them with the
facts I've laid out herein, but from a practical standpoint, I
realize that such a course of action is difficult except over a
protracted period of time.  However, Mr. Kearns' approach offers
some protection for individual rights and has the benefit of
majority support.

Footnotes:

    (1)    For example, see "Combined High-Performance Liquid
Chromatography and Radioimmunoassay Method for the Analysis of
delta-9-Tetrahydrocannabinol and its Metabolites in Plasma and
Urine", Moffat, et al., National Institute on Drug Abuse, 1982.
For detail about the specific metabolites detected in the popular
EMIT test, see "An EMIT Assay for Cannabinoid Metabolites in
Urine", by DeLaurentis, et al., NIDA, 1982.

    (2)    A good description of this process is found in
"Marijuana Metabolism in the Context of Urine Testing for
Cannabinoid Metabolite" by John P. Morgan, M.D. in the _Journal of
Psychoactive Drugs_, Vol. 20(1), Jan-Mar, 1988, pp. 107-115.

    (3)    For intoxication values, see, for example, Dr. Lester
Grinspoon's book, _Marijuana Reconsidered_ (1978) on page 227
where he explains why it is nearly impossible for a person to die
of a cannabis overdose.  In Grinspoon's table, values are given in
mcg/Kg (micrograms per kilogram) which I have converted to ng/ml
for consistency.

    (4)    Note that other states have lower BAC limits than does
Indiana.  California, for example, sets its limit at 0.08.

    (5)    In his _Journal of Psychoactive Drugs Article_, on page
113, Dr. Morgan refers to a study that showed that four out of
five individuals exposed to a small amount of cannabis smoke in a
six-by-eight-foot room had positive EMIT 20 tests for cannabis
even though they themselves were nonsmokers.

    (6)    The cover story for December 17, 1990, entitled "Drowsy
America" by Dolan, Horowitz, and Willwerth (pp. 78-85).

    (7)    Zwerling, Ryan, and Orav; "The Efficacy of Preemployment
Drug Screening for Marijuana and Cocaine in Predicting Employment
Outcome"; JAMA, Nov 28, 1990; Vol 264, No. 20, pp. 2639-2643.

    (8)    _ibid_ p. 2643.

    (9)    Wish, Eric, PhD; "Preemployment Drug Screening", JAMA,
28 Nov, 1990, Vol 264, No. 20, pp. 2676-2677.

    (10)    Abraham Lincoln suspended _habeas corpus_ during the
Civil War.

    (11)    The National Institute on Drug Abuse has conducted
surveys on drug use for some time.  All drug use, illegal _and_
legal, peaked in the late 70s and began a steady decline that has
continued up to today.  See, for example, Johnson, et al., "Drug
Use Among American High School Students, College Students, and
Other Young Adults -- National Trends Through 1985", NIDA, 1986.
There is no evidence that the War on Drugs, which started in 1985,
had any effect on this trend at all with one possible exception.
That exception is the use of crack cocaine, which increased
dramatically after the War on Drugs was declared.  Some observershave pointed out that the War on Drugs actually made the economics
of crack cocaine very attractive to drug dealers and that,
paradoxically, the War itself is a contributor to the crack
"epidemic".
--
paul hager        [e-mail]
"If there be any among us who would wish to dissolve this Union or to change
its republican form, let them stand undisturbed as monuments of the safety
with which error of opinion may be tolerated where reason is left free to
combat it."    --Thomas Jefferson, 1st Inaugural, 4-Mar-1801