This study, A Review of Employee Drug Testing Policies in Police Departments, is the second in a series of White Papers on issues related to public safety. While the primary method of research for the Memphis Shelby Crime Commission (also referred to as the Crime Commission) is best practice investigations, not all topics lend themselves to this format. The purpose of the White Paper is to cover special issues, policies and concerns not specifically addressed by the Crime Commission's Best Practice Studies.

At the request of the Commercial Appeal, the Memphis Shelby Crime Commission agreed in December 1998 to review the drug testing policies of other police departments around the country. Specifically, the purpose of the review was to ascertain how police departments handled a first positive urine test for illegal drugs. The Memphis Police Department's policy was not reviewed.

As with past surveys, the Crime Commission selected 16 cities to review: the Memphis 2005 peer cities,¹ and the nine cities with populations above 500,000 that reduced crime the most during the 1990s.² After professional consultations with its research team, the Crime Commission decided to employ a telephone survey methodology to determine the policies of the selected comparison cities. Telephone surveys are a standard and growing form of criminological inquiry.³ They are commonly deployed because of their timeliness and cost-effectiveness in the data gathering process. All interviews for this report were conducted from the offices of the Memphis Shelby Crime Commission by the same researcher over a two-week period in January 1999.

As with any type of survey research, the quality of the information received is dependent on the knowledge and accuracy of the informant. While all those interviewed felt comfortable answering questions regarding their respective department's policies, all such answers cannot necessarily be taken as official departmental policy. The survey results are therefore best interpreted as indicating perceived departmental policies and practices regarding how first positive urine tests for illegal drugs are handled. Perception surveys should reveal what practitioners believe official policy to be, as well as how such policies are actuated under daily conditions.

The parameters of this survey and what is meant by "drug testing" require some elaboration.

The survey focused exclusively on illegal drugs, and not on alcohol or prescription drug use. Because the survey was solely concerned with the outcome of a positive drug test, the discussion in this paper contains no evaluation of drug-testing methodologies and analysis techniques, such as the various types of urinalysis testing as compared to hair sampling.⁴ Four categories of urine drug testing are mentioned. Below is a brief description of these four categories.

Applicants for the position of sworn law enforcement officer are required to take a drug test as a condition of employment during a pre-employment medical examination. Applicants are disqualified from further consideration for employment if they refuse to submit to this required drug-test, or if the drug test administered indicates a confirmed positive result indicating drug use prohibited by the department.

Some departments administer unannounced, mass or mandatory drug tests to all probationary employees as a condition of employment. Confirmed positive tests are disqualified from future employment.

Police departments may require sworn officers to take drug tests as a condition of continued employment. A supervisor may order an employee to take a drug test upon documented reasonable suspicion that the employee is or has been using drugs.

All employees may be required as a condition of employment to participate in any unannounced mandatory drug tests. Such tests are usually administered annually to a fixed percentage of the force, such as 10% per year.

It may be of interest to note that the National Institute of Justice conducted a similar telephone survey in 1986 on the employee drug testing policies in police departments.⁵ Thirty-three large police departments were queried to determine what measures were being taken to identify officers and civilian employees who were using drugs. At that time, 79 percent of the departments surveyed said they would dismiss an employee that violated the written drug policy, while 21 percent said they might offer treatment to identified violators, depending on the circumstances.

The results of the Crime Commission survey appear in Figure 1. Fifteen of the sixteen cities responded; for the most part, the replies to the survey show a substantial degree of uniformity on this issue. With the exception of Louisville, Kentucky, all police departments surveyed have a drug policy that includes some form of drug testing. All departments surveyed reported conducting drug tests as a condition of employment, and all would refuse to hire a candidate who tested positive for illegal drugs during the hiring process. All departments also tested based on reasonable suspicion, while roughly half conducted random tests. All departments indicated that an employee assistance program was available for those officers who self-admitted a drug problem.

Drugs tested for varied greatly from department to department, with Birmingham testing only for marijuana and cocaine,¹³ while Los Angeles, Nashville, and Dallas tested for five categories of illegal drugs. Two departments, San Francisco and San Antonio, specified that the tests administered would conform to the documented reasonable suspicion.

When asked how each department handled a confirmed positive drug test, eleven of the thirteen cities which had drug testing policies reported that they would initiate termination proceedings against any officer who tested positive. The process of termination varied from department to department, but commonly involved a hearing commission where the validity of the test results could be discussed or challenged as appropriate. New York and Los Angeles appear to have drug policies that most closely resemble zero tolerance. In New York, an officer who (1) fails a drug screening test; (2) is found in possession of illegal drugs; or (3) refuses to take a drug screening test is dismissed. In either case, positive drug test results are typically not treated as a crime.¹⁴ In Los Angeles, even self-disclosure of illegal drug use through an employee assistance program would result in termination.

San Francisco and El Paso were the only two cities that reported that while termination could be an outcome of a first positive test under current departmental policy, it was not typical for termination to be recommended. San Francisco stated that drug use was typically treated as a medical problem. This is also true of Chicago, a department not included in this survey.¹⁵ El Paso reported that demotion was as equally likely a result of a first positive test as was termination, but that a positive drug test had not been reported in years.

Periodic drug testing or screening is a relatively recent approach to the problem of abuse of drugs in the workplace. The idea of drug testing among workers has developed from society's concern over a perceived increase in the use of drugs and the relationship between drug use and impairment, with the resultant risks to the worker, fellow workers and the public.

Signs of heightened public concern about drug abuse and its links to criminality date to 1998-1990. According to respected national sources, these societal concerns remain justifiable. Drug use and dependence are highly prevalent in the general population, according to the study by the University of Michigan's Institute for Social Research. Approximately 13 million Americans used drugs at least monthly in 1996.¹⁶

Most police departments have reported a concern about drug use among sworn officers.¹⁷ According to social scientists, police work is an occupation for which impairment resulting from drug use may constitute a serious hazard. From a law enforcement perspective, the police professions have many valid and compelling reasons that justify use of a employee drug-testing program. In a 1988 article on law enforcement drug testing, Dunham, Lewis and Alpert cite seven reasons for police drug testing: public safety, public trust, potential for corruption, presentation of credible testimony, morale in the workplace, loss of productivity, civil liability. These justifications are briefly discussed below.

Drug use poses the most urgent concern to officers and citizens alike through its potential threat to public safety. Law enforcement officers are one of the few government authorities with the legal consent to use deadly force when necessary. The power and authority endowed by a gun and badge provide the primary justification for employee drug testing by the law enforcement profession.

Though far less is documented or known about the role of illicit drugs in work-related accidents than the effects of abusing alcohol or therapeutic medications, sufficient evidence exists to conclude that the use of controlled substances will seriously impair an employee's physical and mental health, and thus, their job performance.¹⁸ Drug use has been shown to adversely affect the physical senses and thought processes. The officer with impaired senses and decision making skills presents a threat of unjustified shootings, or other misuses of force, and increased vehicular accidents. Law enforcement personnel and the public have a right to expect that all sworn officers are both physically and mentally fit to assume their duties. Drug testing serves this expectation.

Because of the immense responsibility granted to law enforcement personnel, the public expects that those who are sworn to protect and serve enforce all laws in a fair and impartial manner, and that the integrity of the law enforcement profession be maintained at all times. The specter of police involvement in drug corruption and illegal drug use casts a long and dismal shadow upon these expectations. Officer use of illegal drugs has the potential to severely threaten public trust and confidence in the integrity of the law enforcement profession.

Public confidence is further eroded by the potential for corruption created by drug use. While drug use is not necessarily found to be an indicator of drug corruption, the potential correlation is a frequently cited justification for drug testing policies.¹⁹

The officer with impaired senses and decision-making skills may present a threat of false, exaggerated or misleading testimony.

Just as public trust is eroded by officer drug use, so too is each officer's pride in his or her profession. Both internal discipline and esprit de corps are vital to carrying out the law enforcement mission. Many departments consider drug testing a necessary measure to maintain internal confidence.

The productivity of an entire police force is threatened by the drug-impaired state of fellow officers. An estimated $33 billion annually in lost wages and productivity is attributed to employee drug use.²⁰ Each department has a duty to protect its employees from such dangers. Furthermore, the public expects that those who are sworn to protect and serve be at all times both physically and mentally prepared to assume these duties.

Officer drug use impacts potential departmental civil liability, a matter of great institutional concern. Each department has a valid interest in taking measures to forestall litigation based on the negligent actions of a drug-impaired officer.

The literature on law enforcement drug testing is rather limited. In 1989, the International Association of Chiefs of Police created a model employee drug testing policy, which included a concepts and issues paper. At the time of its original release, this policy was considered to be the definitive guide for law enforcement executives interested in formulating a written procedure to govern drug testing. The model policy was last reviewed on April 30, 1990, and is thus somewhat dated in its recommendations. For example, the IACP policy prohibits random drug testing of sworn officers, a practice engaged in by many departments surveyed by the Crime Commission. Clearly, the courts have resolved many of the legal arguments against random testing.²¹ Also, the IACP policy does not recommend how a department should discipline officers who violate the drug policy. IACP is currently updating its drug testing policy and a new policy may be released this year.

Another policy source considered a model by several informed sources is the Kentucky State Police. The Kentucky State Police developed and implemented an employee drug testing policy designed to promote a drug-free workplace. For the last eight years, all sworn employees and all aircraft support personnel have been subject to random drug testing. Any employee involved in illegal drug use faces disciplinary action, up to and including dismissal.²² According to sources familiar with the policy, the Kentucky State Police will typically dismiss anyone testing positive for illegal drugs.

Though a complete case law review was not conducted for this study, a 1994 police drug testing case affirms the ability of a police department to conduct random drug tests and to dismiss an officer on a first offense. In Murphy v. New York City Transit Authority,²³ a urine test showed that a Transit Police Officer used a control substance. The transit authority conducted a hearing, and after considering the results of the officer's urine test determined that the officer should be fired for using drugs in violation of a department regulation. The officer appealed, claiming there was not enough evidence to prove he used a controlled substance and that the penalty was too severe. A judge affirmed that the transit authority could fire the officer for using a controlled substance, and could rely on the scientific test that confirmed the presence of a controlled substance in the officer's urine. The penalty of dismissal was fair in light of the seriousness of the officer's violation. Because the officer engaged in criminal conduct, the department could fire him.

The critical mission of law enforcement justifies the maintenance of a departmental employee drug-testing program. Drug testing - either targeted, random, or both - is a practice employed by nearly every large police department. The goal of law enforcement drug testing must be to send a message that any drug use by officers, at any time, is unacceptable, and that each agency is prepared to enforce that philosophy by utilizing drug-testing technology to the fullest extent. Half measures are inadequate when the stakes are raised by the potentially corrupting influence of drugs on law enforcement.

In implementing a policy and program, police chiefs must fully examine all relevant issues, including legal aspects, privacy rights, property interests, community standards, employee tolerances, and implementation considerations.

Drug testing has the support of those law enforcement personnel who remain committed to upholding professionalism and integrity in their department. Firing for a first positive drug test, irrespective of the place of employment, appears to have the support of many Americans. According to a 1996 Gallup Poll conducted for the Office of National Drug Policy, a majority of Americans (52%) strongly believe that employers should be allowed to fire any employee who is using drugs.²⁴ However, the key to drug testing is fairness. Drug testing should always be conducted in such a way as to protect confidentiality and should be undertaken with the subject's informed consent. Disciplinary action for violations of an employer's drug policy should be applied consistently and with the due process rights provided in the department's discipline and grievance procedures.