By Bill Current, President and Founder of Current Consulting Group (CCG)
This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.
Who and when you test are very important aspects of a drug-free workplace program. But equally important is how you test. A top consideration in how to test is what specimen to use.
Urine, oral fluid, and hair dominate the drug testing industry. Which specimen should you use? That may, on the surface, appear to be a very straightforward question with a simple answer. However, as with most drug testing questions, getting to the right answer can be complicated. It’s not just a matter of choosing between urine, oral fluid or hair, you must use a specimen that meets all the other conditions a state law may require.
Consider these questions:
- In what state or states do you have business operations? Every state has its own unique laws, case law decisions, and workers’ compensation regulations and each can regulate drug testing differently. Further, many state laws are very specific when it comes to permitted specimens.
- Are you planning to conduct lab-based or point-of-collection testing (POCT)? Every state permits lab-based testing but not all states permit POCT. Additionally, there is no lab-based testing methodology for some bodily specimens and no POCT devices for other specimens.
- If you are planning to use a POCT device, does an FDA-cleared product exist for the specimen you’re considering? The U.S. Food & Drug Administration gives clearance to products that meet very stringent requirements and most states that permit the use of POCT devices only allow the use of FDA-cleared devices. Outside of workplace drug testing, an FDA-cleared device is usually not required.
- How will specimen collections take place? Most states have very strict guidelines for how specimens must be collected. Complying with those guidelines will have a profound impact on the legal defensibility of your overall program and the integrity of each drug test result. Also, it is not unusual for a state to defer to the federal guidelines for collection procedures, but the federal guidelines do not cover all specimen types.
- Who will conduct the specimen collection? Some states require specific professional qualifications of those who are permitted to collect a specimen.
- Does your state require that a split specimen be collected? This means being able to collect enough of a specimen for it to be divided into two specimens, so the second half of the specimen can be used for a re-test if the original test result is being disputed. Not all bodily specimens can be split into two specimens.
- Are you in a state that requires lab-based confirmation testing of initial screen positives? Many states not only require confirmation testing, but they also even stipulate what technology that must be used (e.g., gas chromatography/mass spectrometry, often referred to as GC/MS, or an equivalent advanced technology). Yet not all labs offer that technology, and not all specimen types can be tested via GC/MS.
- Are you in a state that requires confirmation testing of the same sample that was used for the initial screen? Urine, oral fluid and hair samples used for initial screens can typically be used for confirmation testing.
- Does your state require the use of a lab certified by the Substance Abuse and Mental Health Services Administration (SAMHSA)? Many states have this requirement. But beware that SAMHSA does not certify labs for the testing of all specimen types. Depending on the specimen you’re testing, just using a SAMHSA-certified lab may not entirely fulfill a state’s requirement.
- Does your state require adherence to the SAMHSA drug testing regulations found in 49 CFR Part 40? If so, you can only use a specimen approved by SAMHSA. Currently, the only specimen permitted by Part 40 is urine analyzed at a SAMHSA certified lab, though final guidelines for lab-based oral fluid testing have been issued and guidelines for hair testing have been proposed. No other bodily specimens are permitted or contemplated under Part 40.
Another key issue has to do with the U.S. Department of Transportation regulations (DOT). If your company is covered under the DOT regulations, you may only test DOT-approved specimens, which right now means lab-based urine (and in the near future lab-based oral fluid).
Okay, that’s a lot to consider. There are others, but that’s 10 state-law-related questions you must be able to answer regarding drug test specimens. Let’s simplify:
- Urine is permitted in all 50 states and meets the state law requirements in virtually every instance, especially regarding lab-based testing.
- Oral fluid is permitted in nearly every state (there are three possible exceptions) and meets most of the state law requirements in virtually every instance, especially regarding lab-based testing.
- Hair is permitted in most states, meets most state law requirements, but is only available as a lab-based test.
Avoid This Mistake
One mistake employers should avoid is assuming very general language in a state law means anything goes. It usually does not. For example, many state laws define a permitted specimen as “a bodily specimen capable of revealing the presence of alcohol or drugs or their metabolites.” However, not all specimens meet all the requirements in every state, especially regarding collections and confirmation testing. Hence, even if a statute includes the very broad “bodily specimen” type of language, it may not be possible to comply with every aspect of a law with some bodily specimens.
Keep in mind that when many state drug testing laws were originally written, the only drug testing method widely available was urine testing, and for alcohol screening it was breath and saliva. Many of those old statutes, some of which are still in use today, refer to various specimen types in the same sentence as if they are interchangeable for both drug and alcohol testing. They usually are not.
The key to legal defensibility is to review the entirety of a state’s drug testing law in order to correctly conclude that a particular specimen is permitted and that compliance with every aspect of a law is possible (refer to the list of 10 questions above). When considering a specimen for drug testing first determine if you can collect it, test it, confirm it, and store it in complete compliance with all aspects of all applicable laws.
Also, multi-state employers must remember that they must comply with all applicable state laws and not just the law of the state where their company is headquartered. This means that a particular specimen may be allowed in some applicable states but not others.
In the early days of drug testing, way back in the 1980s and early 1990s, there was a popular motto that many sellers and buyers of drug testing lived by: “If in doubt, throw it out.” That same philosophy applies today. An accurate drug test result obtained from a legally compliant process, including the specimen used and how it is collected and tested, is an employer’s best legal defense if ever challenged.
If you’re in doubt, check it out first to ensure complete compliance.
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