Considering the Alternatives

If HHS finalizes its rule accepting hair, saliva, and sweat testing methodologies, we'll see a "profound impact" on the private sector.

• By Jerry Laws
• Aug 01, 2004

Editor's note: Hair, saliva, and sweat testing technologies for drugs are moving toward approval this year for programs that test federal employees. Getting a federal OK is important not just to companies marketing these alternatives, but to employers generally. Donna R. Smith, Ph.D., senior vice president for Education, Training, and Development at First Advantage Corp. of St. Petersburg, Fla., discussed the technologies in a May 21, 2004, conversation with Occupational Health & Safety's editors. Excerpts from the conversation follow.

First Advantage provides drug-free workplace testing programs, employee background screening, and other services. During Smith's career, she has been a senior analyst and acting director of Drug Enforcement and Program Compliance for DOT, an analyst and program director with U.S. Army alcohol and drug abuse programs, and a member of several federal advisory boards and association boards of directors. She serves on the teaching faculties of the American College of Occupational and Environmental Medicine and the American Society of Addiction Medicine.

Dr. Donna Smith: What happened in the private sector is that some states enacted one piece of legislation and another state enacted another piece of regulatory requirement, etc. So now, for employment drug testing, it really does depend on where the employer is located and where they have employees, as to how much restriction or how much structure there is to that employment [testing] program. I think that the private sector certainly doesn't have the standardization and the across-the-board employee protection and the scope of the scientific and legal support that we find in employment drug testing that is governed by either the federal law or by the military procedures.

OH&S: I thought the private sector had pretty much leeway to do or not do testing.

Smith: Certainly, employers have a choice as to whether or not they want to do drug testing or alcohol testing. But how much or how they do that testing is very restricted by state and local ordinance. For example, if you're an employer in the city of San Francisco, you can't really do drug testing except perhaps of some applicants. If you are in the state of Maine, you can only do drug testing if you first submit your policy and your Employee Assistance Program and your procedures to the Department of Health in Maine, Department of Licensing, for approval. So it does depend on what state you're operating in, as to whether or not you as an employer have some restriction or some specifics.

OH&S: Let's talk about what HHS did last month [April 2004]. They said basically they're going to accept oral fluid, sweat, and hair testing.

Smith: They are proposing to allow [those] as alternative methods for doing drug testing of the approximately 1.8 million federal employees for whom drug testing is mandated by federal law.

OH&S: DOT quickly said, 'We will look at that. Our rules are quite closely aligned with HHS's and we want you, our stakeholders, to be aware that we're going to review that for the next time we re-examine Part 40.' It doesn't say 'We'll definitely follow along,' but it certainly sounds like that might happen.

Smith: There is actually a legislative reason why the Department of Transportation will be bound to review what the Department of Health and Human Services does. And that's because in the drug and alcohol testing legislation passed by Congress in 1991, called the Omnibus Transportation Employee Testing Act, it specifically references in the actual statute that the Department of Transportation must utilize the Department of Health and Human Services' guidelines as its--I think the exact words are that it must be modeled after or consistent with, something like that.

[The Department of Transportation] may decide, 'Hey, this may work for federal employees, but this is not going to work for airlines.' In which case, they may decide to say, 'This won't work in Department of Transportation workplaces.' And who knows whether they would have to go back to Congress and say, 'We can't be totally consistent with the HHS guidelines, for these reasons.'

OH&S: How do you think it will go? HHS will in fact accept these alternatives, and DOT will?

Smith: I think that there will be some expansion of the methods for drug testing in the federal government. Do I think that the final regulation several months from now will basically be the same as what we were reading last month? The answer to that is no. I think there may be substantial revisions from proposed to final rule.

OH&S: In terms of dropping a couple of those alternatives?

Smith: I don't know whether they would drop them entirely. Perhaps to allow for their use in much more limited circumstances, or perhaps only in concert with other kinds of technologies, as a backup or as a reconfirmation. They even did that in some instances. For example, with oral fluid technology, they are requiring that a urine specimen has to be obtained at the same time because there's a question about whether or not an oral fluid specimen may in fact show passive inhalation or other passive exposure to the drug. . . . With hair analysis, there has been debate in the scientific community now for at least a decade with regard to, are there differences relative to the type of hair--meaning the melanin content--or a difference between drug absorption and testing positive if you have gray hair or white hair versus if you have black hair. And I think we're going to see those issues. I don't know whether that will be solved, quite frankly, in terms of the scientific community coming to a consensus or whether we'll see some of those issues actually litigated.

OH&S: I'm not used to seeing federal regulations that far out in front of the science of something. It seems to me that often federal regulations lag--and granted, you just mentioned the decade's worth of debate--but is this an unusual step to take at this time?

Smith: I wouldn't say it is unusual. I think that there has been considerable pressure on the Department of Health and Human Services for a number of years from the proponents of alternative methods for employment drug testing, to accept them. And I really do believe that it has been that kind of pressure that has been applied in many ways in the political arena, which is what you often see with federal regulations.

OH&S: Well, that's true. And there has been a fair amount of noise from the alternative side.

Smith: That's correct. So I think that's part of the reason you are seeing that at this point, the Department of Health and Human services basically made the decision, or it was made for them, that says, 'Even though we know there is scientific uncertainty, even though we know that there is some debate and that there may be some legal issues, let's put a proposal out there and let the quote, public, respond so that we can no longer be alleged to be dragging our heels.' The proponents feel that they want a broader review of this than just the Department of Health and Human Services.

OH&S: Let's talk about how the private sector reacts to this. Obviously they do take a lot of their cue from what goes on in the federal programs. Do you think this will spur alternatives' use in the private sector?

Smith: Yes, I do. Ultimately, there's no question in my mind. If the Department of Health and Human Services does adopt for federal employee testing as a revision to the HHS guidelines the use of alternative specimens, no matter how limited that use may be, it definitely will change how the private sector does testing. Because many of those state laws or regulations that I mentioned before do reference the Department of Health and Human Services as the standard to which employers must adhere if they're going to do drug testing in that state. . . . Right now, those employers are limited to urine drug testing programs. So if the HHS guidelines allow more flexibility as to methodology, then obviously for those states where their state laws are referencing HHS guidelines, employers in those states that do testing under their own company authority and are bound by state law would have considerable options. So I do think it would have a profound impact in the private sector.

Even for employers in the private sector who are based in states that do not have current restrictions or current criteria that are tied to the HHS guidelines, many times those employers from a legal perspective say, 'We're not going to go out on the proverbial limb and increase our risk liability relative to litigation. We want to wait until the federal government has borne the brunt of that.'

Advantages & Disadvantages of Alternatives
OH&S: How do these alternatives stack up against urine testing in terms of cost and efficacy and other factors?

Smith: Probably the easiest one to compare right now is actually not an alternative specimen matrix. That is what is called in the HHS guidelines the point of collection testing, or POCT, which basically moves partially away from the standard that is applied for HHS- and DOT-regulated testing: that all analysis must be done in a certified laboratory. POCT, still using the urine sample as the matrix or the specimen, allows preliminary screening of that to be done in a non-laboratory setting, using basically a testing device, a testing method that gives an instant read, similar to what you have now with home pregnancy kits, with HIV, with a whole host of things.

For 90 percent-plus of specimens that employers would be doing, particularly as part of the application or the hiring process, you would get an instant result--basically, a green light. . . . That's a big advantage. Now, for those [whose] POCT result is presumptively positive, you still have to go through the laboratory-based confirmation process. And, at least, the proposal in the HHS guidelines would prohibit a federal agency--and if we apply it to the private sector, an employer--from taking an action based on that rapid result. You couldn't deny me the position based on the rapid result.

OH&S: But I wouldn't have to hire you instantly, either.

Smith: Exactly. And I think the difficulty with that [is] we know for a fact that a certain percentage of these POCT results will be presumptively positive at the time the instant test is run, but will ultimately be negative. Because there's always some cross-reactivity on any kind of technology that is amino acid-based. So I could be presumptively positive for amphetamines when in fact it is because of an antihistamine over-the-counter medication that I have in my system. The laboratory result would clearly be negative. So they didn't hire me on the first day; now, what if there were four applicants for the position I want? They get a 'clear' on three of them. They go ahead and hire somebody. They don't deny me the position based on the positive drug screen, but ultimately I don't get the job because there are others who qualified earlier.

The other advantage to POCT testing is that ultimately it is cheaper. . . . It's only 7 or 10 percent [of total specimens] that have to go on to a laboratory where you incur the analytic cost, the cost of shipping the specimen, an overnight carrier, the cost of having it reviewed by a physician, and all of that stuff. On the disadvantage side, I suppose to some extent there is at least as great, if not a greater, potential for being able to cheat.

Oral fluid gives basically the same advantages as you have with the POCT urine result, has some of the same issues with regard to cross-reactivity, and [has] to have the presumptive positive confirmed at the laboratory using more elaborate technology. The issues of being able to alter an oral fluid specimen are significantly diminished over a urine specimen.

Let's go on to hair analysis. Of the alternative specimens that were part of the proposed guidelines, that is the one that is used by most employers today who have elected not to use urine drug testing. And obviously its advantage is the window of detection. . . . Depending on the length of the hair sample, once it is deposited into the hair follicle and the hair, if the hair is not cut it will be there forever. These procedures contemplate taking an approx 3-4 centimeter length of hair cut at the root, which would give you the most recent drug use. Looking at average hair growth rate, a 4-centimeter-length sample is going to give you approximately a three months, 90 days look.

Some of the proponents of hair analysis would also suggest to you that it's more difficult to mask drug use in a hair specimen. However, I would somewhat disagree with that. Looking at what some of the laboratories have found lately, there are all types of hair stripping, hair coloring, rinses, and various types of treatments on hair that do a pretty effective job of stripping it out.

OH&S: I thought the main concern was hair testing's inability to identify current impairment.

Smith: To some extent, all of the specimen matrices for drugs of abuse testing don't identify impairment. What it's always been in terms of the courts, is that it is sufficient and legally, forensically supportable that the person has used the drug in the recent past. Now, though, it is extremely difficult with a hair sample--is this really recent use? What about the person who, college graduate, used some drugs during senior week, now they've cleaned up their act, they're not using drugs at all, and they're applying for that job on Wall Street in September? Probably ought to come with a very short haircut. Because while the hair proponents would tell you the technology exists to segment that hair sample and say this is use that was 30 days ago, this was use that was 30 to 60 days ago, and this was use that was 60 days or more--that by no means is solid science right now.

Sweat testing: Over the past decade, most of its use has been in the criminal justice system. And I don't think that its applicability in the employment setting is going to take off. I just don't see its advantages there. I can see, as a former clinician, that it would be quite helpful in treatment programs, particularly treatment programs that give progressive freedom to patients.

OH&S: Is the real issue getting the private sector to use testing more broadly, no matter what method they choose to use?

Smith: There may be employment settings in which being able to use other specimens certainly would make it logistically better for the employer. And therefore they might say, 'OK, if I don't have to worry about sending people for a urine specimen, but instead I can have them come over here to the HR office and get this done without having to go to some medical facility, then I might consider doing more testing.'

The hair analysis thing I think really has gotten a lot of momentum because employers feel that they're still hiring drug users. Because the window of detection is so short and people know when they come to apply for a job at Home Depot, or wherever it is, that they're going to have to take a drug test within a day or so. So they simply stop using the drugs for three or four days, hoping that they'll get it out of their system. And they pass that pre-employment test. Some of the employers say, 'Even if the person is able to abstain from drugs for a couple of days, if they've been a regular user, it's going to show up in the hair test.'

OH&S: So you're thinking employers will want to use a menu of these. They'll have something they'll use for pre-employment, but they also want to have hair testing if they're seriously considering this person.

Smith: Yes, and that's certainly how the HHS guidelines have approached this for the federal agencies.

OH&S: Urine testing won't become a secondary solution, right? It will still be by far the predominant method?

Smith: Based on what we see in the guidelines, I do think that as they are now, we would still see urine by far the predominant specimen of choice by federal agencies. And there's a cost factor. Of course, the proponents of hair testing and sweat testing say that if it were to be used more widely, the cost per unit would come down. There's probably some truth in that. But right now, a company that does hair analysis for a pre-employment test versus a urine drug test, they're paying two to three times as much for the hair test, generally.

Alcohol Testing More Widely Used
OH&S: Some of my questions have to do with alcohol testing and whether we're missing the boat, so concentrating on drug testing that alcohol may be a bigger problem and we don't see it. Drunk driving fatalities are rising, not falling. Is that something employers aren't paying enough attention to?

Smith: I am seeing increasing numbers of employers in the private sector that are including alcohol testing as a part of their comprehensive drug-free workplace. It's a drug- and alcohol-free workplace. I am seeing them put in work rules that do not allow employees to consume alcohol at any time during their duty period, including lunches or breaks. I am finding them following the Department of Transportation rules, even if they're private-sector programs, where you can't report to work with alcohol at a level of .02 or .04 concentration, which of course is significantly below what a DWI level is. And I'm seeing them put in place testing programs to enforce or support that policy. . . . Companies that used to do only reasonable cause or reasonable suspicion testing for alcohol are now doing random alcohol testing along with random drug testing. And they are doing post-incident or post-accident alcohol testing as part of worker's compensation and workplace accident procedures. We've seen a dramatic increase in that.

OH&S: In all sectors?

Smith: It tends to be in industries that you and I would consider to be more safety-critical, hazardous work environments. I'm talking the petrochemical industry, manufacturing, anything that involves vehicles or moving machinery. I see it much more there than I do in a service or sales industry. It's almost all breath analysis. But oral fluid, saliva alcohol tests are also growing in popularity and in scientific supportability.

OH&S: You mentioned, when talking about employers wanting to use hair testing, that they want a longer [detection] window. Is it generally the perception that the drug problem is getting worse?

Smith: Our data really is pretty flat. I think many of us believe that people who are the current users of marijuana are the young people, they're students, they're the dropouts. The current users of coke certainly are out there in the crack houses. But actually the last [Household] Survey showed that 74 percent of people in the U.S. who say, 'I'm a current user of illegal drugs, which means I've used them within the last 30 days,' say that 'I'm employed somewhere.' Full time or part time.

Positive tests have been decreasing. Those numbers are coming down. The optimist, the proponent of drug testing programs, will look at that and say those programs are working because they're having a deterrent effect. People are making a choice between using illegal drugs and keeping their jobs. Others would say, 'Hey, look, we don't need drug testing any more because drug use in general in America is declining.' But the rest of the stats don't show that.

This article originally appeared in the August 2004 issue of Occupational Health & Safety.