HR Magazine: Are Your Employee Drug Tests Accurate?

Vol. 48, No. 1

Beware of products that aim to help employees obtain fake urinalysis results.

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 padsall 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 Janes 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 theres 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. Its 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. Its 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

In Louisiana, for example, the law covers only those who take court-ordered drug tests, so its workplace implications are limited. Pennsylvanias 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 Carolinas 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 hasnt 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 its 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.