Mandatory drug testing in the workplace as a form of employee monitoring raises numerous questions. This paper will explore the extent to which employees can claim a right to privacy in employment situations. This will be followed by an exploration into the legal framework in which drug testing programs may be implemented. Finally, the paper will consider the competing interests of employers and employees with respect to drug testing. In the end, it will be argued that mandatory drug testing in the workplace is a justifiable form of monitoring employees, and that attempts to ban its use at this point in time are shortsighted. There will be no attempt to analyze the issue in the context of public sector employees. The paper will focus solely on the private sector. This decision is primarily motivated by a desire to avoid opening the Pandora's Box of Charter analysis. Furthermore, it is important to consider what substances are being included in any discussion about drug testing. Typically, literature on the subject interprets drug testing as testing for drugs, both licit and illicit, as well as alcohol. For ease of reference, this interpretation will be adopted for the balance of this paper. Finally, the paper will focus on forms of employment in which safety concerns are particularly relevant. While the general argument being advanced is applicable to all forms of employment, it is clear that drug testing is more appropriate, and therefore more easily justified, in certain employment situations, specifically where public and worker safety would be jeopardized by the existence of drugs in the workplace. Such employment situations would include all aspects of the transportation industry, as well as any occupation involving heavy machinery, production line equipment, and product manufacturing.
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Douglas Isbister, "Justifying Employee Drug Testing: Privacy Rights Versus Business Interests" (1996) 5 Dal J Leg Stud 255.