FEAR OF FAILURE

Drug testing can cost workers, applicants a job

Drug testing is a common practice in the U.S. workplace, but players in
that process share only limited common ground. The players are employers
and employees -- and their respective attorneys -- as well as job
applicants, drug-testing labs and one Arizona physician who authored a book
that attacks workplace drug testing.

Testing is a protection of their investment, many employers believe. Aside
from the potential for workplace accidents or absences because of
impairment from drugs, "there are statistics linking (workers' substance
abuse) to an increased potential for theft," notes Diane Younghans,
marketing director of toxicology in Las Vegas for Associated Pathologists
Laboratories.

Organized labor groups, in contrast, want to limit the extent of testing as
an issue of personal liberty.

Culinary union members agree only to pre-employment testing and testing for
on-the-job problems.

The union does not support random testing. It also opposes hair testing,
which measures "historical (drug) use as opposed to use at work," says
attorney Rich McCracken, who represents Culinary Local 226.

"The membership is not sympathetic to drug and alcohol abusers but ...
they're hired to give the time they're paid for. When they're not at work
they're entitled to do what they want," McCracken says.

"All kinds of decision-making in private life may have ramifications at
work. But are they going to say no divorces because it causes disruptions
at work?"

To detect on-the-job drug use, the Culinary strongly favors blood testing,
rather than urine. Blood testing, however, is more costly. Further, blood
testing would be the least apt to turn up positives, Younghans contends.

"Ur-ine Trouble" is the title of a 1998 book by Dr. Kent Holtorf, who is in
general practice in the Phoenix area. His book asserts pre-employment drug
testing tramples personal rights, is error-riddled and diverts precious
resources from counseling programs that successfully combat substance abuse.

But many Las Vegas employers mandate drug testing. "I would say the
majority of employers in the valley test -- the medium to large companies
and quite a few of the small ones," says Younghans.

She estimates that her lab, Associated Pathologists, also known as APL,
services at least 50 percent of the local employers who do drug testing.
The type and frequency of drug testing varies by an employer's philosophy
and budget.

The most common scenarios are testing to obtain a job, after an accident
has happened, or when an employee shows behavior or other signs -- such as
liquor on the breath -- that suggest drug impairment.

A few lines of work require random drug testing. Anyone who holds a
commercial driver's license, for example, is subject to random testing.
Culinary members have had language regarding drug testing written into
their collective-bargaining agreements since 1980, McCracken reports. But
recently, even small businesses are adopting drug-testing, just to remain
competitive. Younghans asserts, "(Otherwise) they're hiring the people that
can't get a job at the companies that are testing." Holtorf's book makes
claims that spawned varied feedback from local players in the drug-testing
industry.

He asserts that some companies favor workplace drug testing, not because it
decreases accidents, but because they get a discount on health-insurance
premiums if they test.

Insurance companies, according to Holtorf, also favor post-accident drug
testing because a positive test result allows an employer to fire the
worker, terminate health benefits and prevent payment of unemployment
benefits.

That chain of events works fine if the test result is, indeed, from illicit
use of a drug.

But an injured, wrongfully terminated employee may have difficulty coming
up with the funds to go to court to argue either that the test came up
positive from a drug used weeks earlier -- as opposed to shortly before the
accident -- or from a legitimate medical prescription, over-the-counter
drug or even a food.

Does a positive test result mean recent drug use? Not necessarily, points
out McCracken: "Marijuana, for example, is stored up in organs and excreted
at irregular intervals."

Nor does a positive test result always mean any illicit drug use has
occurred. Dennis Kist, a Las Vegas attorney who represents the Teamsters
union, recalls a case that went to arbitration involving a union member
fired after testing positive for THC, the narcotic chemical in marijuana.

"We won the arbitration," Kist says, by showing that the worker was taking
several products he bought at a local health-food store.

The products were labeled as containing ephedrine. But Kist ordered product
testing, which revealed they also contained some trace amounts of THC.

"You never know what's in these (natural) products," Kist concludes. "There
was no proof that he knowingly took these (unlabeled ingredients)."

The Canadian snowboarder who won, temporarily lost, and then ultimately
regained his medal in the 1998 Winter Olympics is a perfect example of the
limitations of drug testing, according to Holtorf. The athlete claimed he
was exposed secondhand to marijuana smoke, while at a party. "The
drug-testing industry is ecstatic he didn't claim hempseed oil," says
Holtorf in a telephone interview.

The oil -- a nutritional supplement that can be used in making falafel,
pizza or muffins -- comes from the hemp plant. Hemp and marijuana are both
varieties of the cannabis sativa plant, but hemp usually contains less than
1 percent of THC while marijuana plants typically contain 10 percent to 20
percent.

On the hempseed factor in marijuana testing, APL's Younghans declined to
comment. But in any testing program, she notes, it's the job of the
medical-review officer to weed out legitimate positives from incriminating
positives.

Employers who test either hire their own medical-review officer outside of
APL, or interpret test results on their own, Younghans says. But MROs --
drug-testing jargon for the review officers -- can easily scratch names of
drug-positive job candidates off a hire list without investigating whether
the positive was legitimate, Holtorf contends.

"I couldn't comment on that (MRO failure to investigate) because I don't
know what an employer does," responds Younghans.

A worker who is fired with a legitimate positive may have legal appeal
options. But the prospective worker, a job candidate who fails to get hired
because of such a result, has no recourse. Holtorf's book also cites
studies suggesting that, in some laboratories, more than 50 percent of
positive drug tests are because of laboratory error.

"The bulk of the errors could be attributed to inadequate personnel, poor
management, broken chain of custody (of test samples), faulty maintenance
(of testing equipment) and faulty transmission of reports," he writes.

Younghans counters that APL is a federally certified lab, one which meets a
set of more rigorous standards than some competitors. "We're the only local
... certified laboratory," she notes.

Holtorf, who graduated from the St. Louis University School of Medicine in
1991, is a partner in the ownership of Arizona-based Vandalay Press, which
published "Ur-ine Trouble."

In 1996, the Arizona Board of Medical Examiners recorded a complaint
against him, for substance abuse. He subsequently underwent rehabilitation
and his Arizona medical license has been in good standing for two years,
according to Stephanie Cartozian, a spokeswoman for Vandalay Press. "That
doesn't affect the caliber of what he wrote," Cartozian says.

Checked-by: Mike Gogulski