The National Alliance for Model State Drug Laws: 
Pushing the envelope on IRS § 501(c)(3) non-profit “charitable organization” regulations

The exempt purposes set forth in § 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and the prevention of cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erection or maintenance of public buildings, monuments, or works; lessening the burdens of government; lessening of neighborhood tensions; elimination of prejudice and discrimination; defense of human and civil rights secured by law; and combating community deterioration and juvenile delinquency...

...A § 501(c)(3) organization may not engage in carrying on propaganda, or otherwise attempting, to influence legislation as a substantial part of its activities. Whether an organization has attempted to influence legislation as a substantial part of its activities is determined based upon all relevant facts and circumstances.”

Source: U.S. Internal Revenue Service § 501(c)(3) regulations, online at www.irs.ustreas.gov/prod/bus_info/eo/exempt-req.html

   A “charitable organization” involved with facilitating and coordinating “enforcement” by lobbying (for that is indeed the appropriate verb) statehouses to enact legislation such as “The Model Drug-Free Private Sector Workplace Act,” a measure focused on suspicionless drug testing? This is a legitimate § 501(c)(3) function?

   Before examining “The Model Drug-Free Private Sector Workplace Act,” it is interesting to note the statistics the Alliance proffers to justify their ends. Once again we witness the customary empirical ambiguities (spawn of the by now familiar dubious paternity) and CASA-esque mantra of “alcohol, tobacco ’n drugs” drug war partisans feel compelled to employ to inflate the apparent extent of the illicit drug “problem” (see Chapter 2). Look closely: most of the statistics asserted by the Alliance speak to alcohol and tobacco consumption, with a bit of “prescription drug abuse” thrown in for good measure.

   None of which are relevant to the particulars of “The Model Drug-Free Private Sector Workplace Act.” This legislative proposal, similar in thrust and content to those proposed by The Institute for a Drug-Free Workplace—another organization promoting mandatory drug testing legislation at the statehouse level—focuses significantly on providing near-blanket indemnification for private sector employers conducting suspicionless drug testing. Employers would be immune from lawsuits resulting from false negative tests (i.e., where an employee tested negative, subsequently caused an injury accident, and was found to have indeed been using drugs proximate to the incident. See Section 16.c) and would limit “defamation” liability in the wake of false positive results “if the employer’s reliance on a ‘false positive’ was reasonable and in good faith” (Section 16.b.2).

   While the Act declares that private-sector suspicionless drug testing is not “mandatory,” it states in Section 11.b that an employer is required to conduct both suspicionless and for-cause drug testing “in order to qualify as a private sector drug-free workplace and to qualify for the provisions of Section 5.”

   Section 5, Applicable Conditions for a Legal Policy, states that

[I]t is lawful for an employer to test employees or prospective employees for the presence of alcohol or other drugs, in accordance with the provisions of this [Act], as a condition of continued employment or hiring. However, in order to qualify for protection from litigation regarding certain legal claims for acting in good faith on the results of a substance abuse test, employers must implement and maintain a comprehensive drug-free workplace program and adhere to the procedural safeguards that demand accuracy and fairness as included in subsequent sections of this [Act].

   Section 19 is particularly interesting. Vendors of drug testing services routinely and prominently tout their use of MROs (Medical Review Officers) to review lab results. An MRO is a licensed physician (M.D.) with additional training and experience in toxicology, pharmacology, and analytical chemistry. Critics point out that the MRO function is overwhelmingly one of providing an aura of professional respectability to the suspicionless drug testing process—but one doing violence to the ethical duty of the physician under the Hippocratic Oath and the dictates of the physican-patient relationship. In this type of tactic (“no physician-patient relationship”) we see drug testing advocates trying to have it both ways. Justification for mandatory testing is invariably anchored to interwoven employee health, safety, and productivity concerns. As Section M-210 (Policy Statement) declares:

Just as schools offer an appropriate platform for intervention with children and youths with alcohol and other drug problems, the workplace is an appropriate platform for intervention with adults. Two-thirds of adult drug users are employed. Adults also have little opportunity elsewhere to become educated about alcohol and other drug abuse problems and to be directed to any needed assistance.

Employers have two important reasons for wanting to establish alcohol and other drug-free work-place programs. First and foremost, employers are concerned about the health, safety, and well-being of their employees. Second, alcohol and other drug abuse costs businesses billions of dollars each year in increased medical claims, medical disability costs, decreased productivity, injuries, theft, and absenteeism.

This legislation establishes comprehensive private sector alcohol and other drug-free workplace programs. In the past, some employers have considered drug testing in and of itself to be a complete workplace substance abuse program. However, the existence of a substance abuse testing program by itself will only serve to identify alcohol and other drug abusers. Testing does nothing to educate, treat, or rehabilitate alcohol and other drug abusing employees.

   We know what it is: Law enforcement by proxy.

   Consider the observations of D. Kim Broadwell in The Evolution of Workplace Drug Testing: A Medical Review Officer’s Perspective (The Journal of Law, Medicine, and Ethics, Vol. 22:3 Fall 1994, pp. 240-46.):

Ethical concerns about employee drug testing have been voiced, particularly by occupational medicine physicians. Drug testing programs potentially destroy mutual trust between the employee and the employer, and punishment for behavior off the job—which may have no direct influence regarding on-the-job performance—is not the environment most workers would choose. Although created to protect, in practice, the role of the physician acting as an MRO is unique to the degree that the doctor is pitted against the employee. No physician-patient relationship is required or suggested, contrart to customary medical practice. The accused is generally contacted by telephone and not examined, and the MRO participates in labeling as a drug user (and usually the firing of) an individual he or she never sees. Issues of diagnosis, therapy, and rehabilitation are peripheral to the intent of the contact. None of these factors fits the paradigm of ethical practice of the healing arts, and many physicians feel unethically bound by MRO requirements, which are forensic, not medical, in nature...

   Drug testing does not diagnose addiction or impairment, and concerns persist about the ability of poorly trained or motivated doctors to carry out the primary safeguard function of the MRO—to prevent falsely positive test results. A zealous physician who, for personal reasons, views his role as a drug enforcement officer may not provide the employee much protection.
(pp. 244-45)

CONCLUSIONS: Workplace screening for drugs of abuse raises many ethical issues. If screening is considered as being part of medical practice with the involvement of occupational health physicians, as suggested by the Faculty of Occupational Medicine, then the ethical requirements of a normal medical consultation are fully applicable. The employee's full and informed consent to the process must be obtained and the employee should have an unfettered right of access to all the relevant records and to the urine sample he/she has provided in the event that he/she wishes to challenge the opinion expressed by the physician. If the process is not part of medical practice then employees should have the same rights as they would have if required to provide intimate body samples in the course of a criminal investigation, given the potentially serious consequences of an erroneous positive finding for their livelihood. (Ethical aspects of workplace urine screening for drug abuse, Forrest, AR, Journal of Medical Ethics, Vol. 23, No. 1, pp 12-17.)

   Some closing observations: Again, while the term “alcohol” is referred to repeatedly in this model legislation, there are no explicit provisions in the Act for indiscriminate alcohol testing—nor any for tobacco. And—broken record, broken record—such is because those are legal substances. The fact that alcohol abuse and routine tobacco consumption account for nearly all aggregate health, safety, and productivity losses attributable to “drugs” is somehow ignored when it comes to mandatory “substance abuse” surveillance, which only looks for marijuana, cocaine, amphetamine, PCP, barbiturate, and opiates indulgence.

   To summarize: Section M-210 (Policy Statement) the Model Act declares, in (5) Substance abuse testing. “Employers must implement substance abuse testing as part of any comprehensive drug-free workplace program. Pre-employment, reasonable suspicion, medical fitness, and post-accident testing would be required by a comprehensive drug-free workplace program in compliance with this Act. Random drug testing is neither prohibited nor mandated by this Act.”

   A state enacting this proposed legislation would subsequently be in the business of “certifying” private enterprises as “Drug-Free Workplaces.” It is but a short hop from there to requiring that private businesses be “certified” should they “directly or indirectly” receive public funds (recall from Chapter 1 41.USC.701, the federal Drug-Free Workplace Act of 1988, which mandated that all businesses “directly or indirectly” receiving federal funds have in place a documented Just-Say-No program). Moreover, commercial drug testing vendors and their lobbyists would undoubtedly make much use of adverse inference toward those firms that remained “uncertified.”

   That such as this “Model Drug-Free Private Sector Workplace Act” might be enacted at the state level through federal taxpayer-funded abuse of the § 501(c)(3) charter would be an outrage. Recall from the IRS regulations that one function of the § 501(c)(3) is the “defense of human and civil rights secured by law.” The activities of The Alliance represent an attempt to surreptitiously use the very federal government charged with defending such rights to subvert them.

   We might recall further how Representative Gerald Solomon raged on in Congress not too long ago, angrily calling for revocation of tax-exempt charters of non-profits “supporting drug legalization” and demanding that financial supporters of such organizations be taxed retroactively on their contributions.

   Interesting.