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Oct. 18 — If you’re reading this at work, there’s a solid chance you had to pee in a cup before your first day on the job. Or you may have handed over a sample of your hair for drug testing.
It’s also likely your job offer would have been revoked, or your employment terminated, if the drug test was positive.
The data on drug testing by employers are largely imprecise, but a 2016 survey of 3,459 HR professionals done by HireRight showed that 92 percent of employers that perform drug screens use urinalysis, while 8 percent use hair tests. While there are flaws in both the urinalysis test and the hair-follicle test, it’s the hair-follicle test that is the most unreliable and could cause headaches for employers.
Case in point: A Massachusetts appeals court this month reinstated the jobs of six Boston police officers who tested positive for cocaine in a hair-follicle test. If there was a headline to come from that case, it might be “Cops Get Jobs Back Despite Failed Drug Test.”
It’s not quite that simple and the result of that case might not be as unfair or inappropriate as it seems at first glance, according to professionals and academics interviewed by Bloomberg BNA.
The case hinged on the court’s conclusion that, although hair-follicle drug tests are reliable enough to “be used as some evidence” of drug use, “the risk of a false positive test was great enough to require additional evidence to terminate an officer for just cause.”
In other words, the fact that the officers failed the drug test didn’t conclusively mean that they’d used a controlled substance in violation of their employer’s policies.
Although there are important differences between urinalysis and hair-follicle tests, and between public and private employment, the officers’ reinstatement holds important lessons for employers and workers alike.
The researchers and medical professionals Bloomberg BNA talked to echoed the reasoning of the Massachusetts court with regard to hair-follicle drug testing.
“Every independent scientific organization that has studied hair testing concluded that it isn’t reliable,” Lewis Maltby, president and founder of the National Workrights Institute, told Bloomberg BNA. Maltby was previously director of the ACLU’s National Task Force on Civil Liberties in the Workplace.
“The only scientists that support hair testing have ties to the industry,” Maltby said. The process “is so unreliable that the scientists at the Department of Health and Human Services won’t permit employers to use it in programs covered by federal regulations.”
This includes commercial nuclear power plants, Paul Harris, who heads the Nuclear Regulatory Commission’s fitness for duty program, told Bloomberg BNA.
“Hair testing has been around for a long time, however the science and technology behind it hasn’t reached that of a consensus standard” just yet, Harris said. “HHS guidelines are viewed as the national consensus standards for drug testing,” but Harris can’t authorize hair testing in the nuclear industry “in part because HHS hasn’t yet developed and issued guidelines.”
The lack of federal employment guidelines on drug testing isn’t arbitrary, according to J. Michael Walsh. He designed the federal employee drug-testing regime after it was mandated by President Ronald Reagan in the late 1980s and was also the executive director of President George H.W. Bush’s Drug Advisory Council and director of research at the National Institute on Drug Abuse.
“There’s been a lot of political pressure, lots of money and lobbying for literally the last 25 to 28 years” to get the federal government to approve hair testing, Walsh told Bloomberg BNA. “The science basically just didn’t support integrating it into the federal program—there are still significant scientific issues, not about whether the technology can detect drugs in hair, but more so about the interpretation of how the drugs got there.”
One reason for this is what’s known as environmental contamination—accidental exposure to a drug that results in tiny, but detectable, traces of the drug in hair.
“Hair testing looks for microscopic traces of drug metabolites, only 1/100th as large as the concentrations involved in urine testing,” Maltby said. “When you’re testing for concentrations that low, it’s impossible to get hair clean enough to avoid positive results for people who never use drugs.”
Both Maltby and Walsh mentioned that a surprisingly large proportion of dollar bills contain detectable traces of cocaine, which can become trapped in hair easily because it is a fine powder.
“You can fail a hair test from handling a $20 bill someone else used for cocaine or from walking through a room where someone smoked pot the day before,” Maltby said, noting that police officers are frequently required to be around drugs by nature of their job.
Scientific studies have also found another issue with hair-follicle testing: a likely racial bias. “It turns out that drugs tend to get into and stay in more coarse, darker hair, like black people have, at a much higher rate than it would for white folks’ hair,” Walsh said.
The 10 officers who sued the Boston Police Department are black. The group has another ongoing case on appeal in the U.S. Court of Appeals for the First Circuit alleging that use of a hair-follicle test has a biased disparate impact. Walsh gave expert testimony against the scientific validity of hair testing in the appeal.
The First Circuit in 2014 found that the test does have an adverse impact on black officers, but a lower court ruled in the city’s favor after the case was sent back. It held that use of the test is nonetheless legal because the city showed that it’s a necessary part of doing police business.
The First Circuit’s “prior determination that the hair test has a disparate impact on Black police officers shifted the burden to the Department to show that the hair test was nevertheless justified as a business necessity,” the officers argue in their brief. They go on to say that the lower-court judge essentially disregarded their expert testimony when the case was sent back, including their evidence of a recommendation by an independent toxicologist at the U.S. Naval Research laboratory to use a hybrid test with both hair and random urine samples.
Urinalysis as a way of testing for drug use also has its problems.
William Becker, a doctor and assistant professor at Yale School of Medicine, co-authored a study in which nearly 70,000 employees were asked to self-report whether they’d been drug tested—via urinalysis—as part of their employment.
He noted that most think a urinalysis is qualitative—either positive or negative—but that employers and labs often do follow-up tests to get a more conclusive or specific answer.
“For urinalysis, the interpretations based on the quantity present are pretty fraught with error,” Becker told Bloomberg BNA Oct. 13. “Its really hard to make a whole lot of meaning of the difference between 300 or 1,500 nanograms of, say oxycodone, and yet I hear people making those kinds of inferences fairly regularly.”
Another concern is that drug metabolites only stay in the urine for a few days. Pre-employment urine testing “is a charade,” Maltby said. “An applicant who smokes pot knows he’s going to be tested, he drinks beer until he passes the drug test and then goes back to pot.”
Racial bias can also rear its head when employers use urinalysis to test for drugs with some employees but not others.
“We found that African-American individuals were more likely to report having been tested even when we adjusted for the kind of employment,” he said. Additionally, “it seems as though even in occupations where testing is mandated, there’s still discrepancies, which implies there’s some racial bias” there.
“Employers are allowed to fire employees based on the results of unreliable tests, but that doesn’t make it a good idea,” Maltby said. “Firing a productive employee because of a test result that’s wrong hurts the bottom line.”
It’s “too speculative” to say other employers’ hair tests could be invalidated in a court based on the Boston case, Harris said. “The FBI is doing hair testing, the Olympics is looking in to hair testing, and the EU is doing it, so you can’t make gross generalizations,” he said.
Drug testing by employers still has its place and can serve as a deterrent for some, Walsh said. “Part of it is your employment ad says there’ll be a test, so there’s a bunch of people who just won’t show up.”
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Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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