Present and Future Opportunities

Case law addressing alternative drug testing specimens is not well developed at this point.

ABOUT a year ago, on April 13, 2004, the U.S. Department of Health and Human Services' Substance Abuse & Mental Health Services Administration (SAMHSA) published a Notice of Proposed Rulemaking proposing revisions to the Mandatory Guidelines for Federal Workplace Drug Testing Programs. Although the stated purpose of the proposal was to "establish scientific and technical guidelines for the testing of hair, sweat, and oral fluid specimens in addition to urine specimens; scientific and technical guidelines for using on-site tests to test urine and oral fluid at the collections site; requirements for the certification of instrumented and initially test facilities; and added standards for collectors, on-site testers, and medical review officers. . . ," the Notice of Proposed Rulemaking actually raised numerous questions. It essentially passed the "hot potato" to the scientific community and the drug and alcohol testing industry.

Drug and alcohol testing industry experts and government representatives have addressed the issues raised in the notice publicly at many industry meetings since the publication of the notice. In spite of all of the dialogue and the time that has passed, it is not possible to predict when the proposed rulemaking will be finalized or when the Department of Transportation will publish its perspective on alternative methodologies. It is very unlikely either will occur any time soon.

The Regulatory Quagmire
In understanding the impact of the Notice of Proposed Rulemaking on the drug and alcohol testing industry, it is important to note that the proposed rulemaking only applied to federal government employees and was optional to the various federal government agencies. The extent to which DOT is bound by the actions of the Department of Health and Human Services is highly debatable.

49 CFR Part 40, first published in 1988, incorporated the substance of the original DHSS Guidelines adapting the DHHS provisions to the transportation workplace. In 1991, Congress enacted the Omnibus Transportation Employee Testing Act, which recognized the close relationship between the DHHS Guidelines and Part 40. The statute requires DOT to "incorporate" the DHHS guidelines and amendments to them into the DOT testing procedures, while leaving DOT sufficient authority to tailor its own program. Because of this statutorily recognized relationship between the DHSS Guidelines and Part 40, any DHHS final rule resulting from the current Notice of Proposed Rulemaking, while not directly regulating transportation industry employers, must and is being considered by DOT in the context of potential future revisions to Part 40.

The practical interpretation of what "incorporate" requires DOT to do is the crux of debate over what the DOT will or must do. Although there have been some differences between the federal procedural guidelines (DHHS) for federal employees (splits, retest procedures, etc.) and the DOT procedural guidelines (49 CFR Part 40), the type of specimens permitted is a fundamental and major procedural consideration that goes way beyond the differences between the two sets of guidelines in the past. The ultimate resolution of this debate will likely be the result of political and market pressures. However, at the end of a very long day, DOT may not have any choice but to bend to those political and market pressures and revise its regulations to permit some, if not all, of whatever the DHHS ultimately permits.

It is also likely that what the government ultimately does may have only a minimal impact on what private sector/non-mandated employers do with respect to moving forward to incorporate the alternatives currently available in their programs. This is because there was significant interest and activity in the area of alternative methodologies on the part of non-mandated employers with drug-free workplace testing programs because of cost, convenience, and program improvement reasons, long before the federal government spoke by proposed regulation. In fact, over the past three years, even without government intervention or absolute scientific blessing, the private sector has been moving forward to maximize the various technologies as they have become available in the marketplace.

Although a number of states mention following federal guidelines in some form or fashion in their drug testing statutes, many more permit some or all of the alternative methodologies or specimens currently in the marketplace, with the exception of sweat testing. The front-running alternatives are on-site/point of collection (POC) urine testing, hair testing, and oral fluids/saliva POC or lab-based testing.

Alternative Testing in the Workplace
Employers need to ask themselves when and where they can use alternative specimens and why they want to do so. The "when can you test" question is dependant on 1) state and federal law, regulations, and case law considerations; 2) individual methodology and product considerations; and 3) employer program objectives and policy considerations.

Where a private, non-mandated employer has the legal authority to test using on-site urine methodology, oral fluids/saliva (lab based or POC), hair, or sweat depends on state law, regulations, and related case law considerations. Why an employer would want to use these alternate testing methods is solely dependent on that employer's policy and program objectives.

The pivotal consideration surrounding on-site urine or on-site oral fluids is whether a non-negative test result is subject to laboratory confirmation and Medical Review Officer review. State law in the following states, one city, and Puerto Rico should be taken into consideration prior to testing because they may have restrictions that will apply to an employer: Alaska, Arizona, Arkansas, Connecticut, Florida, Georgia, Hawaii, Idaho, Iowa, Louisiana, Maine, Maryland, Minnesota, Mississippi, Montana, Nebraska, Nevada, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Vermont, Virginia, Wisconsin, and Boulder, Colo.

The use of lab-based oral fluids tests is more widely accepted under state law. This methodology detects the SAMHSA five drugs, identifies recent usage, permits donors to collect their own specimen under direct visual supervision, and requires no special collection facilities. Hawaii, Maine, Montana, Oklahoma, and Vermont are the only states that restrict its use. There is no significant case law to date.

Hair testing, which offers the benefits of a 90-day window of detection and greater protection from specimen adulteration, is the only alternative methodology with significant historical case law that supports its legal defensibility. In spite of the concerns consistently raised about hair (passive exposure, hair color, and race bias), the science associated with hair testing has consistently withstood legal scrutiny.

Most recently, in dismissing a plaintiff?s claim that cutting his hair violated his Fourth Amendment rights, the 3rd U.S. Circuit Court of Appeals held there is a difference between the hair root and the exposed portion of the hair. The difference is extremely important in a Fourth Amendment context because, while the exposed portion of hair is above the body surface, on public view, and not deserving of Fourth Amendment protection, the hair root, like blood and fingernail scrapings, is "below the surface?not on public view" and may well be deserving of such protection [Coddington v. Paul Evanko, et al., No. 03-3850 (3d Cir. Oct. 29, 2004)]. However, state law requirements must be considered in the following states and Puerto Rico: Alaska, Arkansas, Connecticut, Georgia, Hawaii, Iowa, Kansas, Maine, Maryland, Minnesota, Mississippi, Montana, New York, North Dakota, Oregon, Rhode Island, Tennessee, Vermont, Virginia, and Wisconsin.

Employers have expressed very little interest in sweat testing for drugs. Its value is generally believed to be limited to rehabilitation/follow up monitoring rather than for traditional workplace testing purposes. Very little is known about the permissibility of sweat testing and, therefore the legal risk of using this methodology in the workplace is higher. Cutoff levels for this methodology are very low and may therefore pose state law issues. There are state law considerations relative to sweat testing in the following states, one city, and Puerto Rico: Alaska, Arkansas, Connecticut, Florida, Hawaii, Iowa, Kansas, Louisiana, Maine, Maryland, Mississippi, Montana, Oklahoma, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Vermont, Virginia, and Boulder, Colo. All of the other states laws are silent on sweat testing or list it as a permitted methodology. There is no significant case law related to workplace drug testing.

Improving Workplace Programs
Alternative methodologies have opened a multitude of program possibilities for employers and can only improve an employer's efforts to ensure a drug-free workplace. State law requirements can be easily addressed by thoughtful review of what is permitted on a state-by-state basis and a willingness on the part of an employer to open itself to the advantages of using alternative specimens while respecting state law limitations.

Which specimen to use can be determined best by examining the employer's objectives and balancing those objectives with the advantages a particular alternative specimen offers.

Finally, employers will need the consultative support of knowledgeable counsel and drug testing service agents who understand the benefits, costs, and legal issues inherent in these methodologies. Comprehensive policies that fairly notify both applicants and employees of the testing methodologies that will be used in employer's organization, as well as the procedures, interventions, and consequences relating to testing, will be critically important.

This article appeared in the August 2005 issue of Occupational Health & Safety.

This article originally appeared in the August 2005 issue of Occupational Health & Safety.

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