Following is a position paper I prepared in support of a Bill that would prohibit companie

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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 observers have 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 hagerp@iuvax.cs.indiana.edu "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

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