After a scathing report in 1971 by Congressmen Robert Steele (R-CT) and Morgan Murphy (D-IL) highlighting a heroin epidemic among servicemen in Vietnam, the U.S. military announced that it would begin urinalysis testing of all returning servicemen (known as Operation Golden Flow). During this program, 4.5 percent of the returning servicemen tested positive for heroin (a drug that is only detected for a few hours in urine). That is what many consider to be the beginning of workplace drug testing in America. The industry was poised to explode when President Ronald Reagan signed Executive Order 12564 stating a goal of achieving a Drug-Free Federal Workplace. The Drug Free Workplace Act of 1988 required contractors of the federal government to maintain a drug-free workplace. Since 1988, the “Myth Machine” has churned out some pretty interesting lines that I hear on a regular basis. These rumors are generally based on a misunderstanding of technology, or are just the repetition of bad information. This article hopes to dispel some popular myths, based on industry experience with urine, oral fluid and hair testing, and in turn, will help you and your clients better understand the testing options.
Myth: Random testing isn’t necessary if a pre-employment testing policy is in place.
Fact: This is a common misconception among customers. What they don’t realize is that according to the 2013 National Survey on Drug Use and Health, nearly 10 percent of full-time workers are substance abusers. Said another way, 68.9 percent of the estimated 15.4 million drug users in the United States are employed either full or part time. Certainly some of these individuals are working in areas where pre-employment testing doesn’t take place. It is also safe to assume that some of these individuals have been able to manipulate their usage patterns to avoid detection or to adulterate the specimen that they give during the pre-employment test. Random drug testing programs offer a deterrent that causes employees to pause when faced with the choice to make a bad decision. While random testing might not always deter addicts, it offers organizations a means to detect use. The deterrent value is the most obvious benefit of a random test because the employee doesn’t know when it’s coming. This can prevent dishonest employees from avoiding, diluting or substituting their specimens.
Myth: An employer cannot prohibit the use of medical marijuana at the workplace.
Fact: This is certainly a hot topic in our current environment of relaxed state laws pertaining to marijuana use. Fortunately for employers who want to keep marijuana users out of the workplace, federal law still classifies marijuana as an illegal substance under the federal Controlled Substance Act and, as such, protects employer rights to terminate employment due to marijuana usage—whether it’s medical ORrecreational. The preeminent case occurred in Colorado, and involved a quadriplegic employee who used medical marijuana to control seizures, and who was terminated by DISH Network for failing a random workplace drug test. In 2011, the county court dismissed the employee’s claim that he was wrongfully terminated and should have been protected under Colorado’s Lawful Activities Statute (section 24-34-402.5). That statute protects employees from being terminated for lawful use of marijuana outside the job, where the use does not affect job performance. The county court, however, sided with the employer, stating that Colorado’s Medical Marijuana Amendment only protects an individual from prosecution under state statute but does not make the act “lawful activity.” On appeal, the judge determined that federal law takes precedence over state law regarding marijuana, and Colorado’s Supreme Court followed suit. The Court referenced Gonzales v. Raich (545 U.S. 1(2005)), which stated that “the Supremacy Clause unambiguously provides that if there is a conflict between federal and state law, federal law shall prevail.” Because marijuana consumption was not “lawful” under federal law, Colorado’s Supreme Court sided with DISH Network and upheld Coats’ termination.1
Myth: Oral fluid provides a similar window of detection to urine
Fact: It is widely known in the drug testing industry that oral fluid provides a shorter window of detection when compared with urine. However, some clients see oral fluid as much simpler and less intrusive. It is important that clients are properly informed about using the right tool for the desired outcome. In 2007, Dr. Marilyn Huestis and Dr. Edward Cone published a study, in which they found that “urine testing characteristically provided relatively high detection rates for up to 3 days following drug cessation. In contrast, oral fluid testing typically provided moderate detection rates for 24hours. Detection at lower concentrations generally extended detection times for both oral fluid and urine. In general, it was observed that the use of oral fluid as a specimen for methamphetamine testing provided a shorter ‘window of detection.’”2 In deciding whether to use urine or oral fluid, the client should consider the purpose of the testing, e.g., reasonable suspicion or post-accident testing,and which detection period best meets that purpose, as well as the logistics of collection.