Fired for following doctor’s orders

Workplace drug testing has officially jumped the shark.

Being intoxicated at work is a bad idea. So is showing up for work unfit to work for other reasons: for example, being under-slept. The fixation on the “drug-free workplace” has less to do with safety than with the culture wars; otherwise, more firms would test for alcohol, especially after lunch.

If impairment at work were the issue, firms would be better advised to use impairment tests rather than testing employees’ urine, because urine testing tells you whether a person used a given drug within the past 72 hours (longer for cannabis) and not whether the person is currently under the influence. (The cheek-swab test, which can also cover alcohol, is more specific to recent use, but that’s not the currently approved technology for workplace use.)

With the non-medical use of prescription drugs a rising problem, some companies have begun to test – and fire – workers for using such drugs (notably opioids such as oxycodone and hydrocodone and the benzodiazepine anti-anxiety drugs such as Valium and Xanax). At at least one company, seemingly run by mental and moral defectives, workers were fired, without warning, for using drugs according to medical direction.

Of course, someone can be just as zonked on a prescription drug as on a non-prescription drug, but again, the companies aren’t measuring intoxication, merely recent drug use. When it came to the illicit drugs, the excuse for the invasion of privacy involved in having an employer meddle in employees’ off-the-job activities was that taking those drugs involved breaking the law. But extending the rule to prescription drugs gives employers a convenient way of getting rid of employees with chronic medical conditions.

What’s shocking is the thinness of the evidentiary basis underlying the whole exercise. None of the studies purporting to show that testing positive predicts poor work performance has anything like adequate statistical controls.

There’s a simple way to find out whether workplace drug-testing is actually relevant to safety and work performance. What the employer gets back from the lab is a “positive” (drug metabolites present) or a “negative” (metabolites absent). But the testing equipment actually produces a quantitative measurement, converted to “positive” or “negative” by using some fairly arbitrary cut-off value. Test just above that value, you’re fired; test just below it and your employer never even knows.

So here’s the study I’d like to see someone do: the military, for example, which has an aggressive drug-testing policy. Draw a sample of people who tested “negative” and get the quantitative scores. If off-the-job drug use is really a risk factor for accidents, absenteeism, and poor work performance, then there should be an observable gradient, with people testing zero having better subsequent performance than people testing just below the cutoff.

The fact that none of “drug-free workplace” advocates, and none of the testing labs, have published such as study might suggest to the suspicious-minded that they might not like the results.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

14 thoughts on “Fired for following doctor’s orders”

  1. Amen on the inadequate sleep. I should prohibit caffeine for me after 8PM. It occasionally leads to LATE night programming/music-writing sessions that make functioning the next morning (as a programmer) really tough (quick fix: more caffeine!). A few times a year I only break out of my trace when I hear my alarm clock go off, and have to make the decision to call in sick or go in zombified. It's a rather unhealthy habit.

    What types of "general impairment tests" are out there for employers? And do employers take on legal risk firing based on the results?

  2. What is shocking is that anyone thinks you should be able to be fired for anything other than how well you are doing the job.

    Plus, the 'get a doctor's permission slip to take any drug' thing certainly bad for our personal responsibility, not to mention health care costs.

  3. A lot of employers still have a very lackadaisical attitude toward drug tests. You pee in the bottle at the beginning of employment, and never again thereafter. This is not only a bow to the culture warriors. It makes good sense as a screen. If you don't want the job badly enough to stay off dope for a month, the employer doesn't want you. But the employer doesn't really care about about your drug use: just your commitment to the job.

  4. My recollection is that the USPS did a study like that in the early 90s. Only a few thousand workers, but still enough to produce some results. IIRC the only statistically significant ones were a slightly elevated accident rate and a slightly lower involvement-in-altercations rate. Circumstances have probably changed, but I doubt the results have.

    The rest of the NYT article makes it clear that the real problem is systemic abuse of employees. If you can fire people for cause when their offense is using medications prescribed to control pain resulting from workplace injuries, the perverse incentive is enormous.

  5. Joe S.: I think you are betraying your class here. White-collar people who make their livings at computers don't generally face random tests after the initial screen, but if you stock shelves for a grocery chain or something like that you might well be tested any time for no reason.

  6. Nobody knows how an employee is doing. Objective tests are lacking. For example, there's a significant portion of the US who think Bush was a better President than Obama. Disappointed as I am in Obama, that's not likely to be true. Workplace evaluations are often just as arbitrary even though we like to think not.

  7. Doesn't firing someone for using prescribed medication run afoul of the Americans with Disabilities Act?

  8. wmd — it certainly can.

    I come with a slightly different perspective — I used to work for a glass manufacturing plant where drug use posed a threat to the worker taking drugs and everyone working around them — and lots and lots of my co-workers used drugs (mostly, alcohol, and this was before the emergence of legal drug abuse). It's easy to say that "job performance" is the only touchstone, but where drug use occurs, the poor performance might not be systematic, but might come on suddenly, for instance, where an incredibly "routine" (and boring) job all of a sudden requires some adjustments, for instnace, a special manufacturing run or manual process. I vividly remember a couple of my co-workers grousing about some incredibly boring detail they were doing so they decided to drop some acid to make the day go a little more smoothly, and when they were told that they were being reassigned to a delicate manufacturing process they were so scared of injuring themselves and others that they confessed to what they had done.

    I read the article and what scandalized me was the overprescribing of pain meds. And no, I don't think it's fair to fire people out of the blue without giving them a warning, I just see that there are a lot of potential issues from even authorized use of pain medications on the job.

  9. I can't see workplace drug testing as anything other than a part of the long list of issues that serve as fronts in the culture wars.

    On the one side you have people who believe that individuals should be free to do as they please except where it makes good sense to restrict them. There's lots of argument internal to this side about what constitues evidence in favor of restriction, but its generally an argument held in good faith. People on this side are subject to the urge to divide the world between "good people" and "bad people", but they try to see that as a maladaptive human weakness and try to compensate for it.

    One the other side you've got people who believe there are "good people" and "bad people" and it's pretty much set in stone who is on what side. To this way of seeing the world, good people have a duty to use societal power to impede bad people in every way possible. They are bad after all, so slowing them down in any way is good. It's cooked into the mindset that civil rights, etc, are really only owed to good people. The degree to which bad people have rights and power is an example of how life can never be perfect.

    When one of the (structurally limited to two, at least in the US) sides to the political debate falls down the bad vs. good well these sort of daily injustices seem to multiply. I wish I could see reason for hope in the near term. I miss having sane and logical social conservatives around to serve as a foil to my baseline pinko commie nature.

    When society's working well there's a poor correlation between outward political views and membership the above classes. Sadly we're not in one of those times.

  10. "What types of 'general impairment tests' are out there for employers? And do employers take on legal risk firing based on the results?"

    In that case, you'd pretty much wind up firing all parents of newborns. Very probably anyone with a close relative dealing with a serious medical problem that requires family caregiving.

  11. Doug, there is no question that sleep deprivation could also result in accidents, and so it is not clear that it's fair to "pick on" the use of certain drugs as being presumptively dangerous when lots of things, many that are very common, could be dangerous. I definitely concur in all of that, and I detect the attitude of "well because we can test for X, we will, whereas, we can't test for Y so Y doesn't count." As I said, I worked in a factory, and all I can say is that the operation of most factories is definitely along the command and control model. OTOH, the escalating use of potentially mood altering drugs is a really scary development, especially if you are a pedestrian, but even if you are driving. Having said that, the most overused drug in the workplace is definitely still alcohol. I found it — then and now — to be really astonishing. But it's boring and dispiriting work, usually.

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