FOES: VALIDITY TESTS GET 'F'

Monday, July 30, 2001 - Drug tests, once maligned as an invasion of
privacy, have become a fact of working life for millions of Americans.

But criticism is again mounting as a little-known, controversial procedure
to catch cheaters becomes more popular with employers.

Opponents say validity testing, in which laboratories determine the
legitimacy of urine specimens by measuring natural chemical levels, is
faulty science that's costing innocent people their jobs and careers.

"If just one person who takes a validity test loses their job and they've
done nothing wrong, we need to do something to fix that situation," says
Patricia Friend of the Association of Flight Attendants, which has asked
Congress to study validity testing.

Friend and other critics say the tests are particularly unreliable for
women, whose smaller bodies, under certain conditions, may produce less of
the chemicals measured by the tests.

But opponents are fighting an uphill battle: The government not only
supports validity testing but plans to make it mandatory for the nation's
8.5 million transportation workers later this year. Meanwhile, use of the
procedure is spreading rapidly throughout other industries as employers
battle the troubling problem of cheating on drug tests.

The U.S. Department of Health and Human Services estimates that about 17
percent of the 40 million drug tests administered each year include a
validity analysis.

Quest Diagnostics, the nation's largest drug-testing company, says it
includes validity testing in up to half of its tests. That's up from close
to zero in the early 1980s.

"We've got to balance the need of individuals for due process with the
general public's need for safety," says Robert Stephenson, director of
workplace programs for the Substance Abuse and Mental Health Services
Administration, an agency of the health department that oversees drug-
testing issues.

Stephenson says the government has seen no scientific proof that anyone,
male or female, large or small, can naturally produce chemical levels low
enough to fail a validity test.

What's more, supporters say, the tests are working. Quest says it caught 48
percent fewer cheaters in the first half of 2000 than it did during the
same period in 1999, which it attributes to the advent of validity testing.
Quest began testing for urine adulterants - additives that are widely
available on the Internet - in 1998, and for substituted urine in 1999.

One person in about 30,000 is found to have substituted a sample, says
Barry Sample, a top scientific official at Quest.

Critics of the tests, however, have scored several notable victories lately.

Delta Air Lines last year reinstated four flight attendants and a pilot
that it fired after discrepancies were discovered at the laboratory that
performed their validity tests. One of the flight attendants, Yasuko
Ishikawa, won a $400,000 judgment against the lab on July 6.

As a result of the Delta cases, the health department inspected all of the
65 labs that conduct the tests and canceled the results of about 300 of
13.5 million tests taken in 1999 and 2000. The department also initiated a
comprehensive review of both the scientific and laboratory standards behind
the tests, and the Department of Transportation added new safeguards for
transportation workers who soon will be mandated to take the tests.

"We took seriously the potential that there could be a problem," Stephenson
says. The department expects to complete its review within the next few months.

The case of a former Frontier Airlines flight attendant could set a
precedent for challenging validity tests. Julia Jones, fired after failing
a validity test in February 2000, says she didn't tamper with her urine
sample and is suing the Denver carrier to get her job back.

"I'm not bitter about what happened, I just want it to be made right," says
Jones, 42.

Unable to find decent work due at least in part to her firing, the south
Jeffco mother of two is devoting almost all of her time to the fight. She
says she has spent $22,000 on legal fees and related expenses since she
lost the job.

Jones has a few blemishes on her record that could haunt her if her case
makes it to trial:

In 1989, police caught her phoning in orders for Valium after a doctor's
prescription ran out. A Douglas County judge dropped the charges after
Jones completed a detoxification program.

In 1997, a former boss accused Jones of stealing picture frames from his
studio. Jones says she bought the frames at cost, but she pleaded guilty to
theft in Douglas County Court and received a deferred judgment.

Frontier discovered those issues during a background check but apparently
was satisfied with Jones' explanations, hiring her in August 1997. She took
the drug test on Feb. 17, 2000, before returning to work from an extended
sick leave.

The test found that the level of creatinine, a byproduct of muscle
metabolism, in Jones' urine was 4.9 milligrams per deciliter. Under federal
rules, a sample with 5 milligrams or less, within certain biological
parameters, is considered "substituted," meaning it could not have come
directly from a human.

Jones says a combination of factors may have produced such a low measurement.

First, she says, her natural levels of creatinine are low - an assertion
she backs with her own independent test results. Second, she drank about 12
ounces of water and two cups of coffee before the test - not a huge amount,
but enough, she says, to have diluted her urine. Finally, Jones believes
shoddy laboratory work may also have played a role, as it did in the Delta
cases.

Comparisons between Jones' and the Delta case fall short, however, because
the Delta workers were reinstated after evidence of negligence - and a
subsequent coverup - was found at the lab that conducted their tests.

Jones' test was processed by a different lab, and her results were not
among the 300 the government later found to have been disputable.

Stephenson, the health department official, says he has heard all the
theories proposed by those who fail validity tests. Yet in several studies,
the government has been unable to produce substituted results even when
large volumes of water are consumed, he says.

But Vina Spiehler, a forensic toxicologist who testified on behalf of the
Delta employees, says government officials are ignoring cases like Jones',
in which apparently innocent people have tested below the threshold.

"I disagree that validity testing has no flaws and gray areas," she says.
"I do know of people who have gotten below that threshold because of
medical conditions or drinking too much water."

The Association of Flight Attendants is concerned that its members in
particular may be endangered by validity testing.

"Most of the people who fail the tests match the same profile. They're
female, slight-framed, and they consumed large amounts of water in flight,"
says Friend, the association's president. "The most common thread in this
whole thing is they're flight attendants. What effect does working in a
pressurized cabin at altitudes have on the body's metabolism and chemicals?
We don't really know."

Unionized airline employees who fail the tests can turn to their union for
help, but Frontier's flight attendants are not unionized.

Jones' best hope may be to force a test of a frozen sample of her urine
that was separated from the original when she took the test. Such backup
samples are taken in all drug tests in case challenges or problems arise in
the original test.

But Frontier is blocking her effort to have the sample tested.

Under new Transportation Department guidelines, anyone who fails a validity
test may have the second sample tested at an independent laboratory. Such
protection was granted long ago to those testing positive for drugs.

The guidelines, however, didn't exist when Jones failed her validity test,
Frontier argues. A Denver County judge is scheduled to rule on that issue
next month.

Frontier won't comment on specifics of Jones' case because it is in
litigation, but officials defend the company's policy of conducting the
tests and firing those who fail.

"We do everything possible to make sure the airplane is safe, and drug
testing is a real part of that," says Elise Eberwein, Frontier's vice
president of communications. "Our feeling is when our customers come to us
for our service they're saying, "I trust you with my life.'"

For Jones, who shows no sign of giving up the fight, that reasoning falls
short.

"I just can't get my name cleared," she says. "It's pretty sad that I can't
even get a job flipping hamburgers. If it weren't for my husband, I'd be
living under a bridge somewhere with my Frontier uniform on."