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Drug Testing

ISSUE: Drug Testing (overview)

 

For the last two decades, in the name of public safety or productivity, workers have been subjected to embarrassing and invasive tests, usually through urine sampling but sometimes through hair or blood sampling, to determine whether they have used drugs. Positive drug test results usually lead to loss of employment.

Unfortunately, drug tests are sometimes less than accurate as a measurement of safety or productivity.

For example, several over the counter medications can produce a "false positive," showing that a person has used illegal drugs when in fact he or she has not.

Another problem of drug tests is that they measure drug use at times other than working hours. For example, tests reveal marijuana use up to a month after such use occurred, when any intoxication or impaired behavior would have been confined to the period of two to six hours after smoking the marijuana.

A 1994 committee report by the National Academy of Sciences ("Under the Influence? Drugs and the American Work Force") concluded that "the data ... do not provide clear evidence of the deleterious effects of drugs other than alcohol on safety and other job performance indicators."

Another problem is that drug testing cannot be performed every day. Alcohol abuse may not register in drug testing programs. A business or organization that depends on drug tests to provide a safe workplace will not provide a safe workplace.

The policy of drug testing is based on several errors in reasoning:

• Just because a person may have used a drug recently enough to cause a positive test result does not mean that person is impaired at the present time.
• Just because a person produces "clean" drug tests does not mean the person is not abusing a substance.
• Just because a person produces a "clean" drug test does not mean that he or she is a safe worker.

An improved method of securing public safety is "performance" testing. Performance testing requires that an employee pass a quick coordination and skills test when he reports for work each day. Such tests are designed to particularly measure behaviors critical to the success of that worker's job performance.

Performance testing is gaining favor in major corporations, who have seen a steady decline in worker productivity at jobs with invasive drug testing.

Urine and hair testing is not cost effective and in a tight labor market, may rule out badly needed potential employees.

A recent study shows that drug testing declined from 62% of those surveyed in 1997 down to 47% in 2000. A spokesman for American Management Association, who conducted the study, stated that "If you've got an absolutely critical position you need filled and the person shows up dirty on a test for marijuana, you may regret you ever asked."

Another recent study revealed such a high error rate in positive drug test results that in early 2001, the U. S. government issued new standards by which employees may demand a second test or have other recourse before losing their jobs. The reform affects over two million transportation employees, among others.

Drug testing which parents use on their children or which the legal system may impose upon an offender are significantly different issues from workplace drug testing. There is no direct public benefit in parental drug testing. This private family behavior is not an appropriate target of public policy, except in arguments over social ethics.

Testing required of persons as part of a probation or parole period, or as part of a court ordered drug treatment program falls in a difficult area of such policy questions. For some people, such requirements may aid in their efforts toward an improved life by serving to motivate and discipline them through a difficult adjustment to a new lifestyle. For others, such governmental requirements constitute an invasion of privacy and an inappropriately coercive behavioral modification.

School drug testing comes into the public domain, and although the schools' drug policies may reflect a majority of parental and community values, such policies cannot protect the rights of individuals who may not adhere to that value system.

Random student drug testing has been overturned in several court cases. In an August 2000 Indiana case, the court stated that schools can only drug test students if there is probable cause to believe the student is using drugs. In the same month, Maryland school officials settled a dispute brought by students, parents, and the ACLU, ending drug testing at the Talbot County school district.

However, drug testing for cause has been upheld in court decisions, as have been tests of specific groups, such as athletes.

Hair testing detects drug use for the past 90 days, including drugs that normally would be untraceable after only a few hours. Drug detection rates for hair tests can be up to 5 to 10 times greater than for urine testing. Employers and government officials prefer hair testing because it "serves as a very significant and cost-effective deterrent." (Psychemedics Corporations press release, August 23, 2000; www.drugtestwithhair.com )

Drug policy reformers argue that it is not the employer's nor the government's business what a person may do on his or her own time. By devising tests that show a person's activity for a 90 day period, employers and government intrude too far into the private domain. The interest of the employer, for example, can only be to determine that the employee can perform the job adequately. The requirement that a person's life fit a predetermined mold as defined by an employer or the government is a condition of slavery.

Drug testing of mothers at the time of childbirth has resulted in an outbreak of abuses unparalleled since the Civil War. For example, mothers in South Carolina are subjected to "unwarranted, non-consensual drug testing designed and used to facilitate the arrest and prosecution of mothers who tested positive for cocaine."

Such women are immediately jailed, sometimes moments after giving birth. Subsequent loss of custody of their children cause irreparable harm to these women and to their children, usually of poor circumstances without ready access to legal aid.

 

EXCERPT:

Making Sense of Marijuana Drug Testing

Urine testing does not show whether a person is impaired from the use of marijuana. Urine testing only shows THC metabolites, which are chemical grandchildren of marijuana use. When a person smokes marijuana, the chemicals released in the smoke travel through the blood to various receptors in the nervous system. The interaction of these chemicals with these receptors produce the various effects of marijuana intoxication: muscle relaxation, appetite stimulation, reduction of pain, certain cognitive effects., etc.

As the chemicals start to break down in the bloodstream, they become metabolities. Metabolites do not interact with the nervous system receptors. They are often stored in fatty tissue of the body and then they are slowly released through the urine and feces as waste. Urine testing measures how many of these waste metabolites are in the urine.

Urine testing shows that a person has used marijuana sometime in the last three weeks. For heavy users, metabolites may linger slightly longer than three weeks before they are entirely eliminated from the body. For light users, metabolites may not be present in the urine beyond a week from the time of use. Many factors affect the length of time a person's body will hold metabolites: a person's weight, level of activity, fluid intake, marijuana use frequency and intensity, and the person's natural metabolism.

Urine metabolites of THC do not appear in the urine immediately upon smoking marijuana. It takes a few hours for the body to process THC to the point that it is entering the body's waste system. Therefore a urine test of someone who just smoked but who did not smoke any before would produce a negative result. This person could be quite impaired. Therefore a urine test for impairment is not meaningful.

Blood tests of whole blood or blood serum/plasma do measure the immediate level of THC in the body. A person who has just smoked marijuana will experience intoxication almost immediately. The level of THC in the blood reflects the level of intoxication. However, in the case of testing for marijuana impairment in the situation of a driving accident for example, officers at the scene are not equipped to administer a blood test. By the time a person is taken to the police station or other location where a blood test can be administered, the THC levels in the blood may have dropped significantly.

In an effort to reduce the number of drivers who may put the public at risk through impaired driving, some states have developed “zero tolerance” laws which say that any level of THC metabolites in the body (urine or blood) constitute evidence of impaired driving. Such laws unfairly assume that a person who smoked marijuana on a previous day or even two weeks prior should be considered intoxicated.

Here are a few key points:

* Most studies find no effect of marijuana on psychomotor functions after four hours. This suggests that a waiting period of about three hours after smoking a medium to strong social dose (15-20 mg) will be sufficient to reduce a driver's impairment to that comparable to a blood alcohol content of less than 0.03%.

* A blood alcohol content of 0.08% corresponds approximately to a THC concentration in serum of 9-10 ng/mL. (nanograms per milliliter -- a nanogram is one-billionth of a gram)

* Persons who consumed marijuana within the last hour are likely impaired and will typically produce a blood serum THC concentration of greater than 20 ng/mL

* Persons who consumed marijuana 48 hours earlier or who were exposed to second hand smoke will likely show a THC/blood serum level of 0-2 ng/mL.<http://www.norml.org/index.cfm?Group_ID=6492>

* Variable measurements of THC in identical blood samples among various forensic laboratories suggest that a safety margin of standard deviation should be included in testing standards. Researchers suggest a standard deviation of 3-4 ng/mL for blood serum testing when finding a concentration of 10 ng/mL or higher.

* Effects-based laws are the most reliable means of determining whether a driver is impaired. Effects-based laws require states to prove that a driver was "under the influence" of marijuana in light of the totality of facts in the case: driver's conduct, testimony of witnesses, field sobriety tests, as well as any blood or urine tests. Such laws allow for cases where a regular marijuana user may produce a high blood level of THC but is not necessarily impaired.

* Marijuana consumed together with alcohol produces a greater level of impairment. Even low doses of alcohol together with THC can produce significant impairment.

From: The Drug Testing Legal Manual by Kevin Zeese: Drug Testing Legal Manual and Practice Aids, by Kevin B. Zeese. 2nd Edition June 1996: West Group.

 

SCIENTIFIC ANALYSIS:

Arthur McBay, a foremost forensic toxicologist who served as the Chief Medical Examiner for the state of North Carolina states:

"A finding of 20ug L of THC in plasman (10ug/L in blood) probably indicates that marijuana was smoked with the hour and with 10 ug/L iun plasma within two hours. THC concentrations greater than 50 ug L could indicate smoking within 20 minutes. Concentrations of THC-COOH (the THC metabolite) of 10 ug L in plasma are attained in less than 10 minutes after beginning smoking and remain of 10 ug/L for 6 hours. They will exceed those of THC in 20 to 30 minutes.. . The intensity of 'high' increases rapidly for the first 10 minutes of smoking, peaks in the next 20 minutes and is reported to last for up to 4 hours after smoking started. It is unlikely that a range of plasma THC concentrations could be reliably equated with impaired performance. This differs from the way THC concentrations peak and rapidly decline but more closely resembles the curve of THC-COOH concentrations versus time. It is possible that elevated concentrations of THC and THC-COOH remain in chronic heavy smokers for many hours. A group of smokers was reported to have serum concentrations of 2 to 8 ug/L of THC and 27 to 93 ug/L of THC-COOH despite that fact that they were instructed to refrain from marijuana usage for at least 24 hours before testing."

In 1994 the Forensic Drug Abuse Advisor reported on research conducted by the Addiction Research Center which demonstrates that estimating the time of marijuana ingestion and determining impariment are becoming more accurate. They report that peak levels of marijuana occur in the blood even before subjects finish smoking. See, Estimating Time of Marijuana Ingestion and Degree of Impairment, 6 Forensic Drug Abuse Advisor 29 (1994) citing Cone et al "Relating blood concentrations to THC and metabolites to pharmacologic effects and time of marijuana usage," 15 Therapeutic Drug Monitoring 527 (1993). In order to see impaired effects the general rule is that THC levels must be higher than 10 ng/ml. Estimating the time of marijuana use is accurately done by mathematical formulas comparing THC levels with THC metabolite levels. Two models have been reported that provide 95% confidence in this determination.

See Huestis et al, 16 Journal of Analytic Toxicology 283-290 (1992). 

 

Additional Drug Testing Resources

ACLU on drug testing http://www.aclu.org/search/search_wrap.html?q=drug+testing&imageField.x=23&imageField.y=6&imageField=search

Driving/Drug Testing -- An Analysis from the National Organization for Reform of Marijuana Laws (NORML)

Analysis of the effectiveness of drug testing, constitutionality aspects, and suggested legislative provisions for preventing drug testing abuse in the workplace. (The National Workrights Institute).

 

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