Employee Drug Testing
| Publication year | 1992 |
| Pages | 19 |
| Citation | Vol. 61 No. 01 Pg. 19 |
61 J. Kan. Bar Assn. January, 19 (1992). EMPLOYEE DRUG TESTING
Vol. 61, January, 1992
Copyright (c) 1992 by the Kansas Bar Association; Douglas L. Stanley
I. INTRODUCTION
In the last five years, few societal problems have received more publicity or discussion than the war on drugs. This war has seen an increasing number of employers testing applicants and employees for drug use. A recent nationwide survey conducted by the American Management Society found that 63 percent of the companies surveyed now engaged in employee drug testing. [FN1] This was a 22 percent increase over the previous year. [FN2]
Testing job applicants is still the most common type of drug test performed by employers. In the 1990 AMA survey, 54.4 percent of those who responded tested applicants. The fastest growing type, however, is random testing. In the 1989 AMA survey, only 5.3 percent of those surveyed reported random tests. This figure had grown to 20.3 percent in 1990. [FN3]
There is no end to the antidotal evidence of dramatic savings attributed to drug testing programs. In a Washington, D.C. drug abuse conference held in January 1991, the owner of a small, family plumbing business testified that a lower accident rate, which he attributed to the implementation of a drug testing program, had saved his company $385,000 in 1989 alone. His workers' compensation claims dropped from an annual average of 111 claims before 1985 to just 32 in 1990, saving an additional $150,000 a year in insurance costs. He was so enthusiastic about being "drug free" that his company advertised his policy in the local media as a sign to customers that they may safely allow the company's employees into their homes. [FN4]
Drug testing, however, has not been without its critics. Unions frequently argue that the very low percentage of confirmed positive tests shows that few employees have serious drug problems. A review of drug and alcohol testing conducted among employees of 14 major railroads in 1990 found that with random tests only 1.2 percent of the tests given were positive for drug use. Only 3.2 percent of those employees tested following an accident tested positive for drug use. Of those employees tested because the employer had cause to believe that drug use had occurred or that the employee was impaired by drugs only 2.2 percent of the tests resulted in positive findings. [FN5]
In the trucking industry, the results from tests conducted during 1990 showed a 14 percent positive rate in reasonable cause testing, but only a 2.8 percent positive rate on pre-employment tests. [FN6]
Critics of drug testing have also argued that its expense is not justified given the very low percentage of employees who are detected as having used drugs. A report released on March 2, 1991, by Representative Jerry Sikorski, chair of the House Post Office and Civil Service Subcommittee on Civil Service, concluded that the program of testing federal employees was detecting positive drug use at a cost of nearly $77,000 per employee testing positive for drugs. Of 28,872 federal employees examined between April 1, 1989 and March 31, 1990, only 153, or 0.5 percent, tested positive. [FN7]
Regardless of the pros and cons of employee drug testing, it is unlikely that the practice will cease in the future. This article summarizes the status of the law and practice in this area. It begins by examining the types of tests given by employers. It then summarizes the various federal regulations*20 addressing or mandating employee testing. It concludes by discussing various legal challenges that have arisen because of increased employee testing. [FN8]
II. TYPES OF TESTS
Some of the issues arising from employee drug testing turn on the accuracy of the tests. A general familiarity with the types of tests given is necessary.
A. Specimen Possibilities
Virtually all drug screening tests one-of-four possible specimens: urine, hair, breath or blood. Each has its advantages and disadvantages.
Of the body tissues and fluids that can be used for drug testing, the most common specimen is urine for several reasons. The collection of urine is not invasive. Drugs and their metabolites are present in higher concentrations in urine than in other tissues or fluids because of the concentrating functions of the kidneys. Relatively large volumes can be collected fairly easily. Urine is easier to analyze than blood and other tissues because of the usual absence of protein and cellular constituents. Finally, drugs and their metabolites are usually very stable in frozen urine, allowing long-term storage of positive samples. [FN9]
Most of the chemical tests used to detect drugs can be performed on hair. The advantage of hair analysis is that collection is less intrusive and several months of patient history may be analyzed. The principal disadvantage is that casual use cannot be detected through hair analysis. No studies exist which document how frequent use must be before it will be detected by hair analysis. [FN10]
Breath analysis has been used for years in detecting alcohol consumption. It is well accepted by the courts. It has not been used for detecting other drugs.
Withdrawing blood is by far the most intrusive method of sampling for drug use. Generally, employers do not incorporate blood analysis in drug testing programs. For detecting alcohol consumption, however, if a gas chromatograph/mass spectrometer is not available to analyze the breath sample, there is no other choice but to analyze blood.
B. Types of Drug Tests and their Reliability
It is common for most drug testing programs to differentiate between screening and confirming tests. The most accurate tests are expensive, slow and require highly trained personnel. This makes them unsuitable for large scale drug screening. The practice has developed of using an inexpensive test designed for maximum sensitivity as a screening test, followed by a sophisticated confirming test. Screening tests are designed to yield fewer false-negative results, since a negative result will end the testing process. By far the most frequently used screening test is the Enzyme-Multiplied Immunoassay Technique (EMIT). Several other screening tests have been and are used.
1. Screening tests
Color tests. One of the earliest tests used for detecting drugs is a test in which a small amount of urine is added to a reagent that turns a specific color if the drug is present. The principal advantages of color tests are that they are easy to perform, do not require elaborate technology, and can be applied directly to an aliquot of urine or other biological fluid. The tests are inexpensive; the results are immediate; and the results can be read by the eye.
Color tests have two important disadvantages. Many drugs or metabolites cause similar color changes, making it difficult to identify the exact compound present. Also, a relatively high concentration of drug is needed to cause the color reaction. Because of these two problems, the test gives many false-positive and false-negative results.
Thin-layer Chromatography (TLC). TLC was one of the first techniques used to screen for a broad spectrum of drugs. In this process, a chemical mixture carried by a liquid or gas is separated into components as a result of differential distribution of the components as they flow around or over a stationary, homogeneous, physically distinct substance (normally a silica gel). The components will flow at different rates, therefore separating and enabling a lab technician to determine their identity.
TLC tests have several drawbacks. The technique requires the extraction and concentration of the sample to enable the drugs and metabolites to be removed from organic compounds that may interfere with the sample's identification. It also is not easy to save the detection information as a physical hard copy of the test. Photographic presentations of the chromatography plate at each stage of detection do not reproduce the colors very satisfactorily. Also, the drugs may stain somewhat differently and the stains must be interpreted quickly by the eye before colors fade and before further staining is done to identify other types of drugs. This requires a subjective evaluation.
Radioimmunoassay (RIA). This test uses the principle that a drug labeled with a radioactive substance competes for the antibody binding site with the same drug not labeled with a radioactive substance. The more unlabeled drug there is in the sample, the less radioactive drug binds to the antibody. Drug antibodies and the suspected drug, labeled with a radioactive substance, are added to the urine sample. After mixing the reagents, the solution is precipitated (suspended solids are removed) and the radioactivity *21 is measured in the supernatant (the clear liquid that remains). RIA is used to detect opiates, barbiturates, amphetamines, cocaine metabolites, marijuana metabolites, and LSD.
RIA tests have several problems. Special training in the use of radioactive substances is required. The laboratory must have an expensive gamma counter to analyze the radioactivity. Only one drug may be tested for at a time. If the urine is tampered with by the addition of various adulterants, uniformly false-negative results may be produced. False-negatives and false-positives can occur in as much as 10 percent to 20 percent of samples.
Enzyme-Multiplied Immunoassay Technique (EMIT). As stated before, the EMIT test is the most commonly used screening test. The drug to be tested for is bound to an enzyme, which is then mixed with an antigen of the drug, and added to the urine specimen. If the specimen contains the drug, the antigen will bind itself to the drug leaving the enzyme active. A bacterial suspension in the solution will then be...
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