|
Are Your Employee Drug
Tests Accurate?
The Whizzinator, an
easy-to-conceal, simple-to-use device with a realistic prosthetic
penis, comes complete with an adjustable belt, a 4-ounce vinyl bag,
dehydrated toxin-free urine and organic heat pads—all for only
$149.95.
Why would HR
professionals need to know about this contraption?
Because The
Whizzinator, made by Puck Technologies of Signal Hill, Calif., is
only one of a swarm of products that aims to help employees—both
male and female—beat your company’s drug tests.
Other items
available on the Internet include products that potential test
cheaters ingest or drop into specimen cups. There is even “clean”
urine for sale that drug abusers can substitute for their own.
The existence of
these products is bad news for employers, who fork over considerable
sums of money each year to test their employees.
Reasons for
conducting these tests vary widely. Some employers, including those
in the transportation and nuclear power industries, are required by
federal law to test employees for drug use. Others face similar
mandates at the state and local level.
Some employers test
voluntarily because they operate in one of the 11 states that offer
discounted workers’ compensation premiums to companies that have
drug-free workplaces. In fact, 97 percent of Fortune 500 companies
have drug-free workplace policies, according to the Institute for a
Drugfree Workplace. Also, 67 percent of employers have drug-testing
policies, says the American Medical Association.
Actually, all
organizations have a practical incentive to test, given that
substance abusers generally are not ideal employees. According to
the American Council on Drug Education, drug abusers are:
• 10 times more
likely to miss work than those who are clean and sober.
• 3.6 times more
likely to be involved in on-the-job accidents.
• 5 times more
likely to file workers’ comp claims.
• 33 percent less
productive.
In addition, more
than 75 percent of all drug users are employed somewhere, according
to the federal Substance Abuse and Mental Health Services
Administration (SAMHSA), a division of the Health and Human Services
Department (HHS).
Employers aren’t
the only ones who pay the price for drug abuse; employees pay a
heavy toll also. Substance abuse jeopardizes health, self-esteem,
relationships and income. The price tag is so high, starting with
the stigma of addiction and ending with the ultimate disgrace of
discharge, that some employees would do anything to avoid a positive
result.
Enter the
entrepreneurs.
How Employees Cheat
“Most of the
products for beating drug tests are for urine tests, because 90
percent of employers who do drug testing take urine samples,” says
Donna Smith, Ph.D., senior vice president of Substance Abuse
Management Inc. (SAMI) in St. Petersburg, Fla., a third-party
administrator of drug-free workplace programs.
“By far the most
preferred resource is dilution,” says Leo Kadehjian, Ph.D., an
independent biomedical consultant in Palo Alto, Calif. “There are
many products available on the Internet that claim to help rid the
body of toxins. But they work only because of the large amounts of
water the user has to consume along with them.”
Another way to beat
a drug test is to add chemicals to a urine specimen, thereby
disrupting the testing process itself or making the drugs
undetectable. In the past, test cheaters used common household
chemicals such as denture tablets, eye drops or bleach. Today,
entrepreneurs are offering more sophisticated products. These
include:
• Oxidizing agents,
which chemically alter or destroy drugs and/or their metabolites.
Examples include products named Klear, Whizzies and Urine Luck.
• Non-oxidizing
adulterants, such as UrineAid and Clear Choice, which change the pH
of a urine sample or the ionic strength of the sample, or cross-link
the enzymes used in many tests.
• Surfactants, or
soaps, such as Mary Jane’s Super Clean 13, which, when added
directly to a urine sample in the proper amounts, can form
microscopic droplets with fatty interiors that trap fatty marijuana
metabolites, making them invisible in screening tests.
• The Whizzinator
and other products that let employees substitute drug-free urine for
their own. One intrepid Hendersonville, N.C., entrepreneur, Kenneth
Curtis of Privacy Protection Service, even sells his own
urine—guaranteed drug and adulterant free—along with a substitution
kit consisting of a pouch, a tube, a chemical hand warmer and a
temperature monitoring system.
For products like
these, the best detection methods—pat-downs or direct observation of
someone giving a sample—skate along the edges of privacy violation.
Federal rules allow those actions only if there’s a good reason to
believe the person may be cheating. That presents a challenge for
employers and the drug testing industry, which is onto such scams.
Testing Industry
Fights Back
“As adulterant
companies come out with new products, labs test to detect what it is
they’re using to mask the drug,” says Laura Shelton, executive
director of the Drug and Alcohol Testing Industry Association
(DATIA) in Alexandria, Va.
Employees at
testing firms also reconnoiter enemy camps by reading the
counterculture periodical High Times, adds Kadehjian. “They search
the Internet, they buy the chemicals, they do the research, then
they publish their results in the scientific publications. As soon
as they’ve addressed one adulterant, another gains popularity. It’s
a challenge to try to stay ahead of them.”
One
company—Nevada-based PassYourDrugTest.com (PYDT)—claims to keep up
with current testing methods and trends by employing four “freedom
fighters” who work in drug test labs and who funnel information to
PYDT.
In spite of such
efforts, it appears the drug test industry is gaining the upper
hand. “Drug test fraud has been decreasing to some extent,” says
Shelton. “It’s fairly small right now.” In all of 2001, 12,500
samples—out of 20 million to 25 million tests performed each
year—were adulterated, she says.
Shelton’s assertion
is borne out by research from Quest Diagnostics Inc., a giant
diagnostic test firm based in Teterboro, N.J. According to the Quest
Drug Testing Index, a widely respected semiannual survey, the number
of individuals who used adulterants to thwart drug tests declined by
48 percent in the first half of 2000—when the labs started seriously
testing for cheaters—compared to the previous year. The research is
based on more than 6 million tests that Quest labs performed. There
are more than 50 testing labs in the country, Shelton says.
Meanwhile, states
and the federal government are watching the drug test cheating
industry and taking measures to prevent fraud. But, thus far, their
efforts have been far from complete. While cheaters’ efforts are
being thwarted, one employee who brings his drug habit to work is
one too many. It’s still up to HR to ensure that your workers do not
put their colleagues, the company, your customers or the general
public at risk.
States Crack Down
STATES TAKE ACTION
The following
states passed laws making drug test fraud a crime.
State Year the Law
Was Enacted
New Jersey 2002
North Carolina 2002
Virginia 2001
Oregon 2001
South Carolina 1999
Pennsylvania 1997
Louisiana 1995
Texas 1991
Nebraska 1988
Alarmed by Internet
ads that tout ways to fool drug tests, nine states have passed laws
making it a crime to engage in drug test fraud. (See “States Take
Action,” right.) Typically, these laws target both the test-taker
and those who make or sell products that enable employees to fake
test results. But there are some variations.
In Louisiana, for
example, the law covers only those who take court-ordered drug
tests, so its workplace implications are limited. Pennsylvania’s law
criminalizes only the use of drug-free urine, not adulterants.
Nebraska bars only the sale, purchase or use of “body fluids” to
alter drug test results.
On a related note,
Alabama and Idaho bar employees from jobless benefits if they hand
in adulterated urine samples, although neither state has
criminalized the sale or use of drug test cheating products.
So far, except for
one case in South Carolina, there have been no criminal prosecutions
under these laws. The single exception is the 2001 conviction of
urine-selling entrepreneur Curtis under South Carolina’s 1999 law.
While his criminal case was pending appeal, Curtis moved his
business across the state line to North Carolina, but that state
passed a law this year that bars:
• Selling, giving
away, distributing or marketing urine intended to defraud a drug
test.
• Attempting to
defeat a test by spiking or substituting a sample.
• Adulterating a
sample.
• Possessing or
selling adulterants.
But that’s about it
for prosecutions under the laws. In Oregon, for example, Rep. Robert
Patridge says he hasn’t even checked to see whether anyone has been
prosecuted under the state bill he sponsored in 2001. “We primarily
set it up as a deterrent, as a safe workplace tool, and as an
accountability issue,” he says.
Loopholes in
Federal Guidelines
Current federal
guidelines, led by Department of Transportation (DOT) standards
(widely considered the gold standard), may not be casting a tight
enough net around test fraud. For example, current rules don’t
require testing for adulteration and dilution: Employers have to
request it.
A set of proposed
HHS rules would change that, requiring “specimen validity testing”
for all urine samples. Officials expect that proposal to pass, but
the process is slow.
Another limitation
of the current rules is that they may not be finding all the folks
who dilute their urine. Dilution is by far a bigger problem than
adulteration, says Kadehjian. The DOT guidelines consider a specimen
diluted only if it’s eight times more diluted than normal.
“There are
sanctions only if the urine is so dilute it can’t be human,” says
Kadehjian. “Specimens below the dilute cutoff don’t happen easily.
And the only sanction for diluted but otherwise acceptable specimens
is that the next time a specimen is demanded of that donor, it may
be collected under direct observation. Obviously, direct observation
is pointless if a person has taken in a lot of water to dilute their
specimen.”
SAMI’s Smith
disagrees that the dilution standard is too lax. “The cutoff is
extra generous, but some of the population produces that kind of
urine. People on Weight Watchers have to drink 12 8-ounce glasses of
water in a 12-hour period,” she says. “I don’t think the government
should change the dilution criteria. They would pick up a number of
people because of their dietary and fluid intake.”
But Smith
acknowledges that cheating is still going on.
The fact that
current federal standards make it hard to catch frauds doesn’t mean
that employers’ hands are tied. You can ask for specimen validity
testing even if it is not required. “The vast majority of employers
do it,” says Smith. “It doesn’t cost a lot more.”
And employers can
set their own stricter standards for adulteration and dilution.
“Private companies
often forget that they can have a more stringent program,” says
Kadehjian. “They can request the lab to look for adulteration and
dilution at stricter cutoff levels.”
Kadehjian cites the
case of a tanker that ran aground in the Mississippi River. The
employee at the helm tested negative for drug use under Coast Guard
regulations, but positive under the employer’s own more stringent
cutoff. The employer discharged the employee, and the court upheld
the discharge, citing the public policy against workplace drug use.
Meanwhile, the
entrepreneurs say business is booming.
“Business is very
good,” confirms Sue Thompson, an herbalist with PYDT. “Those new
state laws really don’t affect us. You have to realize that where
there’s a will there’s a way. Business is, and will remain, steady.
PassYourDrugTest.com will continue to help anyone who asks and will
stand behind our words 100 percent, anytime.”
The feds are also
undaunted. “We have our challenge,” responds Donna Bush, Ph.D.,
chief of drug testing at SAMHSA. “But that doesn’t stop us.”
--------------------------------------------------------------------------------
Diane Cadrain is an
attorney and has been covering workplace legal issues for 19 years.
She is legislative affairs director of the Human Resource
Association of Central Connecticut.
Return to Passing Drug Test
News Menu
Passing Drug Tests With Ready Clean - XXtra Clean - Root
Clean
|
