Legal Blog

Be Confident When Enforcing Workplace Drug Testing

drug testsOne of the primary dangers surrounding drug use in the workplace is that impairment is rarely an unequivocal fact. An individual using marijuana may exhibit no outward signs of intoxication. Even the supposed obvious symptoms—red eyes, increased heart rate, delayed reaction time—could have a benign cause such as an allergic reaction or lack of sleep. This is why professionals like Jim Randisi staunchly advocate for workplace drug testing. Particularly in manufacturing, construction, and other industries where an employee under the influence could be operating heavy machinery, a drug test may save someone’s life. In contrast with the precise and evidence-based results of a test, a workplace policy based on subjective observation of impairment alone does little to improve safety. It’s not only large-scale organizations laden with heavy equipment that should be concerned about drug use. From tech startups to restaurants to car dealerships, the truth is that you never know. If you’ve invested your time and money into a business, and you want that business to succeed long-term, why give any of your employees the opportunity to put it all at risk? Employers need to be confident and aggressive in enforcing their drug-free workplace policies. The legalization of marijuana for medical or recreational use is not a reason to abandon workplace testing for the substance. Rather, the new legal landscape is a call to review all types of drug testing, starting with urine testing.

How Individuals Try to Beat the Drug Test

Employees sometimes attempt to “beat” drug tests, and urine samples give them the most leeway to do so. There are three general ways individuals try to defraud test administrators, avoid detection, or otherwise cheat when asked for a urine sample. Dilution: A “diluted specimen” is a urine sample that has a higher than average water content. The individual’s goal in this case is to minimize the drug levels visible in the urine. Substitution: The donor provides urine that did not originate from his body. Liquid urine, powdered urine, synthetic urine, and urine from another person are commonly used. Adulteration: An “adulterated specimen” is a urine sample that has been tampered with or compromised. Certain chemicals in the sample either mask the presence of drugs or interfere with lab equipment. The different rates of efficacy and accuracy among different kinds of testing methods complicate the matter further. Point-of-care or point-of-collection tests (POCT), also called “instant tests,” for instance, are largely erroneous. These tests frequently fail, particularly in catching levels of THC—a psychoactive component of marijuana—that would normally have tested positive had they been sent to a laboratory.

Oral Fluid Testing: A Good Alternative

Besides working with a lab, employers may obtain better results by using methods other than urine collection. Consider some of the possible benefits of oral fluid testing. Unlike urine, oral fluid can be collected out in the open in the presence of a witness. The process is virtually adulteration-proof and thereby creates trust. It also eliminates difficulties related to collection by gender, any embarrassment the donor may feel, the myriad precautions urine testing necessitates, and time-costing “shy bladder” issues. In terms of results, oral fluid testing boasts several additional advantages. It can detect recent marijuana use by looking for the THC parent and metabolite. Where urine has a complex relationship to blood and the apparent drug concentration depends on an individual’s water intake, oral fluid generally reflects blood concentration.

Next Steps

If you’re not sure where to start in adopting or implementing a workplace drug and alcohol policy, ask your employment attorney or contact me to discuss options.  Be confident and aggressive when it comes to protecting your business.


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