Workplace Drug Testing

The previous article on workplace drug testing got some discussion going. Say Uncle noted:

Most companies do drug tests because they save 5-10% on their workers’ comp insurance costs. At least, the companies I worked for did. It may be an economic decision and not a drug policy decision.

That was news to me. And disturbing news because it makes it pretty much impossible for a company to waive the requirement if an applicant they really want just says “No.” But sure enough, it’s true — but apparently only in certain states.
Individual states appear to have a wide variety of laws dealing with drug testing in private companies. Here’s a resource from 2003 (I can’t guarantee that these are still accurate), with a short state-by-state description (Here another guide with more detail in each state).
So why do some states give a workers compensation premium discount to companies that implement a drug free workplace program? Misinformation. Pure and simple. The stated assumption is that a drug-free workplace will save both the company and the insurer significantly due to reduction of accidents and lost productivity.
And that misinformation is spread like this:

Business and community leaders were briefed on the 10 most common mistakes employers make at a Johnson County Chamber of Commerce breakfast Thursday.
The discussion was led by Steve Trent and Brent Young, attorneys specializing in labor and employment with the law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz in Johnson City.
Among topics discussed were the Family and Medical Leave Act, drug-free workplace programs, which drew the most attention from attendees, the Older Workers Benefits Protection Act, harassment, termination timing and procedures, the Fair Labor Standards Act, workers’ compensation, solicitation and distribution policies and avoidance of retaliation claims. At least six million Americans abuse illegal drugs, according to Trent. Recreational drug users are five times more likely to file a workers’ compensation claim and 3.7 times more likely to be involved in workplace accidents than other workers.

When this article came out a couple weeks ago, I immediately noticed the suggestive conflation of use and abuse that means it’s best to question the rest of what they have to say. And, of course, attorney Steve Trent of the distinguished law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz, is full of it.
In fact, any time you hear someone give statistics on drug use and workplace safety/absenteeism, they’re full of it, because reliable statistics don’t exist.
In Jacob Sullum’s outstanding article from 2002, Urine — or you’re out, he noted:

My interviews with officials of companies that do drug testing — all members of the Institute for a Drug-Free Workplace — tended to confirm this assessment. They all seemed to feel that drug testing was worthwhile, but they offered little evidence to back up that impression. […]
“Despite beliefs to the contrary,” concluded a comprehensive 1994 review of the scientific literature by the National Academy of Sciences, “the preventive effects of drug-testing programs have never been adequately demonstrated.” While allowing for the possibility that drug testing could make sense for a particular employer, the academy‰s panel of experts cautioned that little was known about the impact of drug use on work performance. “The data obtained in worker population studies,” it said, “do not provide clear evidence of the deleterious effects of drugs other than alcohol on safety and other job performance indicators.”
It is clear from the concessions occasionally made by supporters of drug testing that their case remains shaky. “Only limited information is available about the actual effects of illicit drug use in the workplace,” admits the Drug-Free America Foundation on its Web site. “We do not have reliable data on the relative cost-effectiveness of various types of interventions within specific industries, much less across industries. Indeed, only a relatively few studies have attempted true cost/benefit evaluations of actual interventions, and these studies reflect that we are in only the very early stages of learning how to apply econometrics to these evaluations.”

Let’s take the numbers that our shyster friend Steve Trent is using.
Remember? “Recreational drug users are five times more likely to file a workers’ compensation claim and 3.7 times more likely to be involved in workplace accidents than other workers”
Back to Sullum:

Sometimes the “studies” cited by promoters of drug testing do not even exist. Quest Diagnostics, a leading drug testing company, asserts on its Web site that “substance abusers” are “3.6 times more likely to be involved in on-the-job accidents” and “5 times more likely to file a worker’s compensation claim.” As Queens College sociologist Lynn Zimmer has shown, the original source of these numbers, sometimes identified as “the Firestone Study,” was a 1972 speech to Firestone Tire executives in which an advocate of employee assistance programs compared workers with “medical-behavioral problems” to other employees. He focused on alcoholism, mentioning illegal drugs only in passing, and he cited no research to support his seemingly precise figures.

And over to John Morgan’s article in the Kanasa Law Review: The ‘Scientific’ Justification for Urine Drug Testing

In 1987 testimony before the U.S. House of Representatives, by Mark de Bernardo of the United States Chamber of Commerce: ‘recreational’ drug users are 2.2 times more likely to request early dismissal or time off… 3.6 times more likely to injure themselves or another person in a workplace accident, 5.0 times more likely to file a worker’s compensation claim.

Morgan worked for some time to track down the Firestone numbers:

After a number of calls and queries I received a two page document from Firestone’s Medical Director, E. Gates Morgan. The report apears to be an in-house newsletter. In it, a Mr. Ed Johnson is interviewed about the Employer Assistance Program (“EAP”) at Firestone. There are some statements pertaining to absenteeism, but these are not documented, and more importantly, refer only to a few alcoholics who have been served by the Firestone EAP. The statistics generated (if these calculations based on alcoholics were actually made) have nothing to do with drug users, recreational or otherwise.
The statistics cited about absenteeism and workers’ compensation claims may have been derived from interviews with alcoholic workers enrolled in the EAP at Firestone. These people were not identified by urine testing for alcohol, but were referred because they or others perceived that their lives were falling apart. They, unlike workers randomly tested for drug use, were dysfunctional. To use them as a justification for testing unimpaired workers is like demanding that all workers have mandatory periodic rectal temperatures taken because a case of tuberculosis was found in the workplace.

It’s clear that these are the same numbers that our shyster is promoting. But is he just clueless? Has he been duped? Or is there more to it?
What about his venerated law firm Baker, Donelson, Bearman, Caldwell & Berkowitz, PC and their relationship to biotechnology and drug testing companies, including the one where Baker Donelson “Secured portfolio of US and foreign patents for startup drug-testing company that is now the exclusive testing facility for three state governments.”?
So on January 16, I wrote to Steve Trent, and the David Yawn, Media Contact at Baker Donelson, and Managing Editor John Molley of the Johnson City Press, and Gary Mabrey, President of the Johnson City Chamber of Commerce. Nobody responded.
I guess they like their misinformation.

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