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CE 051 102

Oversight Hearing on Drug Testing in the Work Force.

Hearing before the Subcommittee on Employment

Opportunities of the Committee on Education and

Labor, House of Representatives, One Hundredth

Congress, Second Session.

Congress of the U.S., Washington, D.C. House

Committee on Education and Labor.

21 Apr 88

86p.; Serial km. 100-70.

Superintendent of Documents, Congressional Sales

Office, U.S. Government Printing Office, Washington,

DC 20402.

Viewpoints (120) -- Legal/Legislative/Regulatory

Materials (090)

MF01/PC04 Plus Postage.

Adults; Dismissal (Personnel); *Drug Abuse; Employee

Attitudes; *Employer Attitudes; *Employer Employee

Relationship; *Employment Practices; Hearings; Job

Applicants; Personnel Policy

IDENTIFIERS Congress 100th; *Drug Use Testing

ABS TRACT

This document reports the oral and written testimony

of five witnesses who addressed the accuracy, uses, abuses, and

possible benefits of drug testing in the workplace at a Congressional

hearing. The hearing was conducted to discuss H.R. 691, the Employee

Drug Testing Protection Act, which would prohibit drug testing in the

workplace except in specific incidents. During the hearing, testimony

was given by two doctors, a United States Representative, a

representative of the General Accounting Office, and a victim of a

false-positive drug test who was unjustly fired. Testimony centered

on the various tests available and the costs of each type, the

accuracy of various types, and the use of the tests by employers and

potenti41 employers. Testimony in favor of drug testing focused on

the increasing use of drugs and the potential benefit to society of

eliminating drug abusers from the workplace, especially when they

work in safety-related occupations. Testimony against drug testing

(and in favor of the bill) stressed the possible injustices of

false-positive tests, individual rights, costs, and possible abuses

of any regulations put on employers. (KC)

***********************************************************************

* Reproductions supplied by EDRS are the best that can be made *

* from the original document. * ***********************************************************************
0` OVERSIGHT HEARING ON DRUG TESTING IN THE

WORK FORCE

Cl

HEARING

BEFORE THE

SUBCOMMITTEE ON EMPLOYMENT OPPORTUNITIES

OF THE

COMMITTEE ON EDUCATION AND LABOR

HOUSE OF REPRESENTATIVES

ONE HUNDREDTH CONGRESS

SECOND SESSION

HEARING HELD IN WASHINGTON, DC, APRJL 21, 1988

Serial No. 100-70

Printed for the use of the Committee on Educatio.i and Labor

U.S. DEPARTMENT OF EDUCATION Office of Educational Research and Improvement EDUC TIONAL RESOURCES INFORMATION

CENTER (ERIC)

his document has been reproduced is

received from the person or organization

originating it.

0 Minor changes have been nude to improve

reproduction quality

Points of v swot opinions stated in this Poop

ment do not necessarily represent official

OERI position or policy

U.S. GOVERNMENT PRINTING OFFICE

87-610 WASHINGTON : 1b88

For We by the Superintemknt of Documents, Congressional Sales Office US. Government PrintingMa, Washington, DC 20402

2 BEST COPY AVAILABLE
COMMITTEE ON EDUCATION AND LABOR

AUGUSTUS F. HAWKINS, California, Chairman

WILLIAM D. FORD, Michigan JAMES M. JEFFORDS, Vermont JOSEPH M. GAYDOS, Pennsylvania WILLIAM F. GOODLING, Pennsylvania WILLIAM (BILL) CLAY, Missouri E. THOMAS COLEMAN, Missouri MARIO BIAGGI, New York THOMAS E. PETRI, Wisconsin AUSTIP J. MURPHY, Pennsylvania MARGE ROUKEMA, New Jersey DALE K KILDEE, Michigan STEVE GUNDERSON, Wisconsin PAT WILLIAMS, Montana STEVE BARTLE1T, Texas MATTHEW G. MARTINEZ, California THOMAS J. TAUKE, Iowa MAJOR R. OWENS, New York RICHARD K. ARMEY, Texas CHARLES A. HAYES, Illinois HARRIS W. FAWELL, Illinois CARL C. PEP.KINS, Kentucky PAUL B. HENRY, Michigan THOMAS C. SAWYER, Ohio FRED GRANDY, Iowa STEPHEN J. SOLARZ, New York CASS BALLENGER, North Carolina ROBERT K WISE, Ja., West Virginia

TIMOTHY J. PENNY, Minnesota

BILL RICHARDSON, New Mexico

TOMMY F. ROBINSON, Arkansas

PETER J. VISCLOSKY, Indiana

CHESTER G. ATKINS, Massachusetts

JAMES JONTZ, Indiana

SUBCOMMITTEE ON EMPLOYMENT OPPORTUNITIES

MATTHEW G. MARTINEZ, California, Chairman

PAT WILLIAMS, Montana STEVEN GUNDERSON, Wisconsin CHARLES A. HAYES, Illinois PAUL B. HENRY, Michigan MAJOR R. OWENS, New York FRED GRANDY, Iowa CHESTER G. ATKINS, Massachusetts JAMES M. JEFFORDS, Vermont JAMES JONTZ, Indiana (Ex Officio) AUGUSTUS F. HAWKINS, California

(Ex Officio)

3

VA Y103 1,e-J.;
CONTENTS

Page

Hearing held in Washington, DC, on April 21, 1988 1 Statement of

Jones, Juanita, bus driver, District of Columbia Public School System;

accompanied by David So ley, Dal id & Hagner, P.0 23

Mc Bay, Arthur, chief toxicologist, office of the chief medical examiner, State of North Carolina 62

Mule, S. Joseph, director, New York State Division of Substance Abuse Services Testing and Research Laboratory 50

Schumer, Hon. aarlet E., a U.S. Representative from the State of New

York 2

Stevens, L. Nye, Associate Director, General Government Division, U.S General Accounting Office; accompanied by: Robert K. Aughenbaugh;

and Thomas M. Beall 7 Statement of.

Jouee, Juanita M., school bus attendant, District of Columbia Public

School Systcm, prepared statement with attachments 24

Mc Bay, Arthur J., Ph.D., chief toxicologist, State of North Carolina, prepared statement of 66

Mule, S. Joseph, Ph.D., director, DSAS Testing and Research Laboratory, prepared statement of 53

Schumer, Hon. Charles E., a Representative in Congress from the State of

New York, prepared statement of 3

Stevens, L. Nyc, Associate Director, General Goverr.mex. Division, U.S.

General Accounting Office, prepared statement of 10
OVERSIGHT HEARING ON DRUG TESTING IN

THE WORKFORCE

THURSDAY, APRIL 21, 1988

U.S. HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON EMPLOYMENT OPPORTUNITIES,

COMMITTEE ON EDUCATION AND LABOR,

Washington, DC.

The subcommittee met, pursuant to notice, at 9:30 a.m., in room

2261 Rayburn House Office Building, Hon. Matthew G. Martinez

(chairman of the subcommittee) presiding. Members present: Representatives Martinez, Hayes, Jontz, Jeffords, Gunderson, and Schumer.

Staff present: Eric Jensen, Valerie White, Joff Fox, Terri Schroe- der, and Mary Gardner. Mr. MARTINEZ. I think we will go ahead and start. First, let me

read my statement and get it out of the way and then we will be

ready to take testimony. Let me say that this subcommittee has scheduled an oversight hearing on drug testing in the workforce for today, April 21, 1988, at the request of Congressman Schumer. He has introduced H.R. 691, which is called the Employee Drug Testing Protection Act, prohibiting drug testing in the workplace except in specific inci- dents.

The hearing will address the accuracy, uses, abuses and possible benefits of drug testing in the workforce. Let me say that there is a national awareness in recent years about drug abuse. More recently, because of the deaths of a couple of young and prominent sports

figures, and maybe because of a series of train accidents, there has been more of a national awareness of drug abuse especially in the workplace.

The concern about drug abuse and subsequently the concern for safety in the workplace has manifested itself into the belief of in- dustry and employers of a need to drug test employees. A survey

has indicated that the percentage of Fortune 500 companies screening employees or applicants 1.aa risen from 3 percent to around 30 percent between 1982 and 1985. Employers and other proponents who support drug testing argue that workers who abuse drugs have

lower productivity, have more health problems and hence generate higher employer insurance premiums, have higher rates of absenteeism on the job and have a higher rate of accidents on the job. They say that drug users may be responsible for lawsuits against

the employer by employees or customers who are injured by drug

abusers, and they say that drug users may steal from their employ-

(1)

5
2

ers to support their drug habit or disclose confidential material in

exchange for money or drugs.

However, unions, employees and other opponents of employee drug testing argue that drug testing violates the Fourth Amend- ment prohibition against unreasonable searches and seizures by

the Government. The tests, they claim, are often inaccurate. They

claim a positive test indicates only the presence of certain quantities of drug residue but is not evidence that an individual is im- paired in his job performance.

They also say that there is a potential for abuse when the test

information is revealed by an employer. Finally, they say that em- ployers do not always enforce drug use regulations uniformly. The final status of drug testing as a par` of the work scene is

still not clear. The limits that should be placed on drug testing are

becoming slowly visible as a result of the growing number of court decisions that are being handed down.

We are here today to learn more about drug testing of employees

and to receive testimony on H.R. 691.

Our first witness is the author of the bill, the Honorable Charles

Schumer.

But before we take his testimony, I would like to know if any of

the panel has opening statements.

Mr. Hayes.

Mr. HAYES. Mr. Chairman, I think that in the interest of time, I

would just welcome our colleague here today and I will look for- ward to hearing his statement.

Mr. Maantizz. Thank you. We will then go directly to Mr. Schumer. Mr. Schumer.

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S.

REPRESENTATIVE FROM THE STATE OF NEW YORK

Mr. SCHUMER. Thank you very, very much, Mr. Chairman I am

grateful to you and to the subcommittee for scheduling this hearing and for beginning the discussion, a very important discussion, on how to regulate drug testing in the private sector, because for millions of Americans drug testing is not some far-off high technol- ogy in the future, it is an everyday reality.

New studies, which the GAO will discuss, show that 49 percent of Fortune 500 companies now conduct drug tests on their employees. Estimates are that drug testing has more than doubled among

these large firms in the past decade, and for millions of Americans, having a job means that they now must subject themselves to a drug test with no legal protection. The company decides on what kind of test, when to administer the test, who shall see it, and what opportunity, if any, the employee has. From start to finish, the

company is the judge, the jury, and the executioner.

I might add, Mr. Chairman, that many of these companies have no safeguards at all. It is ironic to note that even the Reagan Ad- ministration, which has been very pro-drug testing, believes in

stronger standards for its employees than many of the Fortune 500

companies and other companies have for their employees.

6
3

Today, Ms. Juanita Jones will testify. She lost her Government

job, many friends, and even support, from her church, because of a

single inaccurate test. Fortunately, the courts reviewed the facts of her case and awarded her $300,000. But had she been a private em- ployee, she would have had no legal recourse. I think it is time that we in Congress realize that widespread

drug testing is a fact of life for millions of Americans. The least we can do is provide some guidelines so American workers are not abused. My bill, the Employees Drug Testing Protection Act, guar- antees what should be the most basic protections for any American

citizen. The bill guarantees that employees cannot be aubject to

random drug teats unless there is probable cause or if they are in

-sensitive occupations.

The bill guarantees that employees will have full access to their records and the ability to review the action of their employers. It also guarantees the employee's right to a highly accurate confirmatory test in the event that their first test is positive. As you know, Mr. Chairman, there are many tests that are wildly inaccurate, and if a company now chooses to just use that

test and say you're out because it was positive, hundreds of thou- sands of innocent people could lose their jobs. Now, I believe that this bill only represents a first step. Since I

first drafted it, I have had many excellent suggestions from unions and from companies that have had experience with drug testing, proposals to build into law clear rights of appeal and rehabilitation.

This committee has made a great step forward, and my compli- ments are to it for holding this hearing and beginning tt e debate on how to regulate drug testing. It is a crucial problem and I look

forward to the work of this committee in creating legislative guidelines to keep fairness in the workplace. I can assure you of my as- sistance in whatever way I can be helpful. Mr. Chairman, I have a complete statementI have just given

the highlights of itwhich I would ask unanimous consent be read

into the record.

Mr. MAUMEE. Without objection, so ordered. Your prepired

statement will be inserted immediately following your oral presentation.

Mr. SCHUMER. Thank you, Mr. Chairman.

[The prepared statement of Hon. Charles E. Schumer follows:]

&TATOU:NT or HON. CHARM E. SCHLIM131, Barons ma SURCOMMIT11112 ON

Estmonszat OPPosTinerrues, APRIL 21, 1988

Mr. Chairman, I am grateful for this opportunity to testify, before your Committee and for the leadership you have provided in be&ning this much needed discussion

on regulating drug testing in the private workplace. As is so often the case, technology, in this case drug testing, has crept into Ameri- can society before the American legislative process has been able to fully compre- hend and rear and to what is happening. I believe that this hearing will have more

than served its purpose if it can simply dispel the out of date notion that drug testing of American workers is the province of a few eccentric employers or an isolated

indu try or two. Drug testing is a reality for millions of Americans, in all walks of

life, and many hundreds more companies will adopt drug testing programs before

even this decade is out.

The General Accounting Office, whose representatives will testify immediately

after me, has produced a study which notes that almost one-half of America's For7
4

tune 500 companies now do some drug testing of their employees. Studies over the past 5 years have shown dramatic 10% annual increases in the number of firms doing drug testing and there is little doubt that this rush to drug test will not di- minish in the future.

This drug testing stampede is an attempt to respond to a real problem in Ameri- can life, the crisis of drug abuse. But in seeking to combat drugs, we cannot trample

on the rights and lives of the American worker. You will hear testimony today from

a courageous woman, Ms. Juanita Jones, who was the subject of an inaccurate and

arbitrary drug test by the District of Columbia. Because of an incorrect lab report, this law-abiding, model en.ployee was fired without any notice and she suffered for

two years as an outcast from her church and community. It is worth pointing out

that though she was able to defend her good name in a court of law, had she been a private employee she would have had no such recourse.

I believe it is time that Congress takes up the subject of private drug testing in a

serious and comprehensive fashion. There are too many workers who are being subjected to bad tests, improper procedures, and a profound lack of legal protection in

the workplace.

My bill, the Employees Drug Testing Protection Act, is an attempt to set down as

law some of the most basic guidelines by which any company should be willing to

abide. The bill prohibits the use of random drug tests except in "drug-sensitive occu- pations", requires the use of the more accurate gas chromatography mass spectrom- etry method to confirm any positive drug test, and guarantees the employee certain

rights of access and review of drug test information.

I am more than willing to admit that this bill represents simply a starting point for the debate on regulating drug testing. Since it was originally drafted, many or- ganizations have come to me with excellent suggestions for building into the bill clearer rights for employee appeals and for providing the option of rehabilitation. I am all for taking the lessons of our best run unions and companies and incorporating them into a comprehensive federal stre.ute.

But I suggest to this Committee that the time to regulate drug testing is now. Those companies which are doing tests recklessly and without proper guidelines do not only ruin the lives of their employeesthough cn incorrect drug test with no

chance for appeal can swiftly destroy a career and a family. An improper drug test also casts a pail of illegitimacy over our attempts to prevent drug abuse, and dis- graces the concept of our country as a nation of laws and fairness.

H.R. 691: EMPLOYEE DRUG Tomo Pacrrirriew Acr

The Schumer bill has three essential elements:

1. Bans random drug testing for employees and applicants to jobs unless: A. They are in drug sensitive occupations. That is it could damage the public health or safety.

B. Otherwise employees can only be treated for probable cause. 2. Requires the use of the most accurate, gas chromatography mass spectrometry method of confirm any positive test.

3. Gives broad employee access to their own testing records.

Mr. MARTINEZ. Congressman Schumer, one of the things that the unions are adamant about in their opposition to drug testing is what they envision as a better program, one of employee assist- ance. They call them EAP's (Employee Assistance Programs). Where they are used, they have shown great resulthigher pro- ductivity, and in fact a cost benefit to the employer, and sometimes amazingly not just a few dollars but a great number of dollars

since these people who are helped through these kinds of programs are not only more productive but they are not absent as much and

they provide stable employment so the employer doesn't have to go out and rehire and retrain new personnel for that position. There

seems to be a lot of benefit from that kind of a program. Does your bill address the EAP alternative as a suggestion for employers? It appears the tendency is that if you have somebody who is a drug abuser you "Can him. Get rid of him." He's just a

pain in the neck to you.

8
5

Mr. SCHUMER. Right.

Mr. MARTINEZ. But the more humanitarian approach would be to

take this person and put him in one of these programs and help

him. Because if we are going to eliminate drug abuse, the people to get started with are the people that are actually using the drugs, to

get them off them. "co know, the President and the Administration has had a great camt:aign going on, "Just say no to drugs." Well, it doesn't work

that way in reality, and there is a lot of peer pressures and there is a lot of pressures of life itself. Among young people, they get pulled

into drugs and it's a tragic thing. We haven't done as much as we possibly can to stns drugs from either being manufactured in this country or coming .nto this country. In fact, there is a war on drugs, and yesterday on the floor there was some discussion about it. One of the Members, one of our colleagues stated, "We declared war on drugs and immediately cut

the money that provides the weapons to fight drugs, to fight the war."

So, it seems in Congress that we are saying we are going to fight drugs and we're going to do everything we can against drugs and

then not provide the wherewithal to do it. We really hurt the people that are affected by the use of drugs because they lack the

education to understand the harm that it's doing to them, and then because of circumstances beyond their control they lose their means of employment.

So, I guess the bottom-line question I ... asking here is don't you

think that somewhere in this whole ,..tess we ought to address

the humanitarian side of it, assistance to these people in the work- place that are abusing drugs?

Mr. ScHummt. I think, Mr. Chairman, you have made an excellent suggestion. This bill doesn't have an automatic rehabilitation provision in, but I think it's a good idea. When I introduced this bill, it was as a first step, a study bill, to get comments from all sides because the drug testing area is very c rntroversial and there

are lots of different views.

I believe that given the problems we have with drugs and the volatility of the issue, until we get some kind of consensus, which I believe this committee could lead in forging, we are not going to

pass legislation. But let me say this. I agree with your thrust. But what is the greatest resource America has, particularly as we move into the 21st century? It is not really the minerals under the earth or the

soil on the ground, it's our people. And every time a worker is afflicted by drugs, we are wasting the greatest resource we have.

If we are going to remain the leading power of the world, again

it is going to be because of our people. And every time someone goes on drugs, they are a wasted life t 'Rat we need in our battle to

remain a great economic power. So, I think it is very important to have rehabilitation provisions

in the bill. Y. am talking to several different groups about adding

those to the bill and would welcome the committee to do the same

in its endeavor because I think it's an extremely valid point.

Mr. MARTINEZ. Thank you, Mr. Schumer.

9
6

I agree with you totally that one of the greatest resources we

have is human resources and that for too long in this country we

have shunned it and tried to ignore the problems that exist, sweep

them under the carpetall the cliches one could use. We have actually been without any regard to the fact that if we are going to

be a strong country, a strong nation, we have to have healthy, well educated people free from these kinds of troublesome problems. I thank you, and you are to be commended for introducing this bill and bringing this debate to light so that we can start talking

about how we're going to rectify this problem to a greater extent

than just saying no to .drugs.

We have just been joined by Mr. Jontz and Mr. Jeffords who is

the ranking minority member of the Committee on Education and Labor and an ex-officio member of this subcommittee.

Mr. Jeffords, do you have an opening statement?

Mr. JEFFORDS. No, I do not, Mr. Chairman

I just would also like to commend Congressman Schumer for getting us going on this very, very important aspect of the drug problem to see what is reasonable and responsible to do under the circumstances.

I have an open mind on just how far we should or shouldn't go, and your testimony has been very helpful in that regard, as well as

the bill and your trying to prompt .r attention as to what we may

do.

There are so many different ramifications of mandatory drug

testing that in some constitutional respects are somewhat frightening. On the other hand, the protection of the public and the seri- ousness of the drug issue make it necessary for us to really take a

close look at it.

Mr. Smitnnat. Thank you, Mr. Jeffords.

Mr. JEFFORDS. Thank you, Mr. Chairman.

Mr. MARTINEZ. Thank you, Mr. Jeffords. Mr. Jontz, do you have an opening statement or comment?

Mr. JONTZ. I do not. I appreciate the opportunity to hear the witnesses this morning, and thank you, Mr. '31iairman, for scheduling

the hearing.

Mr. MRT1NEz. Thank you, Mr. Jontz.

Mr. Hayes, do you have any questions of the witness? Mr. HAYES. No questions, Mr. Chairman. I just want to add my word of commendation for our colleague

for introducing this first-step legislation to protect the rights of working people. I think that as we proceed to make this law, we might be able to strengthen it along the way with some amend- ments.

But I just want you to know that I am supportive of your position with respect to it and will uo everything that I can to help

pass it because some people are really being abused by this random

testing. It's a good way to get rid of people sometimes.

Mr. SCHUMER. Yes.

Mr. HAYis. Thank you very much.

Mr. SCHUMER. Thank you.

Mr. MARTINEZ. Thank you, Mr. Hayes. Mr. Schumer, I am going to invite you, if your schedule permits, to join the panel so that you might listen to the other witnesses
7

testimony and ask questions if you have any, since it is your legislation.

Mr. SCHUMER. I most appreciate that opportunity, and I thank

the committee for their consideration.

Mr. MARTINEZ. Thank you, Mr. Schumer. Our next witness is L. Nye Stevens, associate director, General

Government Division, U.S. General Accounting Office. We welcome you. Would you please take a seat, and we will hear

from you immediately. Would you like to introduce the people who

are with you?

STATEMENT OF L NYE STEVENS, ASSOCIATE DIRECTOR, GENERAL GOVERNMENT DIVISION, U.S. GENERAL ACCOUNTING

OFFICE; ACCOMPANIED BY: ROBEZT K. AUGHENBAUGH; AND

THOMAS M. BEALL

Mr. STEVENS. Yes, I will, Mr. Chairman. Thank you very much

for this opportunity to appear and testify today on the extended

nature of employee drug testing in the private sector. We believe that the recent review of surveys that we completed

for Congressman Schumer provide for a useful background on the

activities that would be affected by the legislation you are considering today. Our report on this work has just been made available, and with

your permission, what I will do is just summarize very quickly its major findings and then we will respond to whatever questions you

have.

Mr. Mairrnaz. Your prepared statement will be inserted in its entiret= your oral presentation.

Mr. s. k you very much, Mr. Chairman.

Mr. MARTINEZ. You may summarize. Thank you. Mr. Smarm. I am accompanied today by the two auditors who were most responsible for this work: Robert Aughenbaugh, on my

right, who is with the Norfolk regional office, the evaluator in

charge of the study; Tom Beall, on my left, who is a member of our privacy group in the Washington headquarters, who also partici- pated in it. Now, our work involved the identification and review of ten per- cent surveys of mostly large and medium-size companies in the pri- vate sector on their drug testing practices and their plans for the

future. The studies used a variety of methods. They have a highly variable number of response rates in them. But we believe that, taken as a whole, as a group, they provide an excellent and quite

current description of contemporary drug testing practices. Let me very briefly summarize what the studies tell us. Overall, they indicate that drug testing is a common but not yet universal private sector practice. It seems clear also that the larger a firm the more likely it is to have a drug testing program. The highest figures that we found were reported in the two studies that covered the largest companies in the country, the Fortune 500, about half of which are now testing for drugs. The studies also provide a clear indication that drug testing is

likely to become more prevalent in the future, since as many as a

fifth of the companies that aren't already testing either employees
8

or applicants indicated that they are either considering or planning

such a program.

One survey noted the concern that if the trend towards drug testing continues to grow as fast as it has, drug users may gravitate

toward those companies that don't have any testing program and

that other employers will have to follow suit as a matter of selfprotection.

The surveys also suggest that firms with test programs are more likely to test applicants for employment thaw their current employees. In one survey, the largest number of respondents we

found testing at all was 55 percent, and they were testing appli- cants for employment rather than current employees.

With regard to the treatment of individuals who are tested for

drugs, the surveys show that although they are generally in the minority, there are firms that do not provide any kind of a confirmatory test for those who fail the first screening for drugs. Of course, the Schumer bill that you have before you would require

confirmatory tests. That is one of its features. In two of the three surveys that specifically reported on retesting of applicants after a first test, less than half the firms said that

they did provide follow-up testing for job applicants who failed an

initial test; they just let them go.

There are also firms reporting that they do not even tell appli- cants that the reason they are not hired for a job was that they

failed the drug test, had a positive drug test.

Now, who receives drug testing and why: Among the firms that

tested employees now, the majority said that they did so for cause, such as after an accident, and that was the reason they cited for

testing. As one of the surveys noted, this is less controversial because it has the support of the courts. There is not as much danger of a legal battle in it.

To a lesser extent, firms used random or periodic testing of their employees. We didn't find any survey that said more than about a

quarter of the companies are doing that. That is, 4' course, what

the Federal Government is proposing for its workforce. Five of the surveys noted the reasons why companies adopted a

testing program, and you mentioned some of those in your opening

statement, Mr. Chairman. They cited improving workplace safety,

increasing productivity, curbing illegal drug traffic, and reducing

employee medical costs.

The firms that didn't test also had reasons, and they cited some

reservations about the costs and reliability of the tests. They in- cluded the ethical and moral implications of the process. And some of them expressed doubts that even if an employee did have a con- firmed drug test, it didn't necessarily indicate an impairment on

the job.

One survey asked companies engaged !n drug testing if they had

a written policy on their drug testing programs. And while a majority of the firms said that they either had a written policy or were in the process of writing one to cover it, 14 percent of the re- spondents indicated that they didn't have any written policy or guidelines or even any plans to develop them.

12
9

This suggests that although they are the minority, some firms operate without written formal procedures describing their drug

testing programs

That is a summary of what we have done so far, Mr. Chairman

I might tyke a moment to mention also that at Congressman

Schumer's request we are doing some follow-up work that has to do with the reliability of the laboratories and the State regulation of

laboratories that will carry out these drug tests. As drug testing

spreads, of cot )e, the reliability of the lab work mould become in- creasingly controversial.

In this work, we plan to survey all 60 of the States to determine

the regulatory controls that they have over drug 'eating labs, and we will look, among other things, at the licensing requirements,

the quality control standards, proficiency testing, personnel stand- ards, and their state inspection programs.

That is work we are just beginning, and it will also be under Mr. Aughenbaugh's direction.

That is a short summary of a good deal of data, and if you have any questions on the statement or the report. we will be glad to

respond to them.

[The prepared statement of L. Nye Stevens follows:]

13
10

United Stites General Accoandnd Office

GAO Testimony

--,,

<,2-

For Release

on Delivery

Expected at

10:00 a.m. EDT

Thursday

April 21, 1908

Employee Drug Testing

Statement of

L. Nye Stevens, Associate Director

General Government Division

Before the Subcommittee an Employment Opportunities

Committee on Education and Labor

House of Representatives

GAO \T- GGD -88 -14

14
SUMMARY OF STATEMENT BY

L. NYE STEVENS ASSOCIATE DIRECTOR

GENERAL GOVERNMENT DPflESION

In response to a request by Congressman Charles E. Schumer, GAO

obtained and reviewed 10 surveys on private sector drug testing.

GAO's objective was to summarize the information in these surveys

concerning the extent and nature of employee drug testing in the

private sector.

On the basis of the available survey data and pattern of response

across surveys, GAO believes some summary observations can be

made about private sector drug testing as practiced by survey

respondents. The survey data indicate that:

-- drug testing is a common, but not universal private

sector practice;

-- firms are more likely to test applicants than

employees;

-- larger firms, as measured by the number of employees,

are more likely to drug test; and

-- more firms plan to implement drug testing in the

future.

Regarding the treatment of individuals subjected to drug

testing, the surveys show that, although they are generally in

the minority, there are firms that:

-- do not provide confirmatory tests to employees or

applicants who initially test positive,

-- retest employees or applicants using the same type

of test as that used initially, and

-- do not tell applicants that the reason they are not

hired was because of a positive drug test.

For a number of methodological and statistical reasons, the

survey results should not be considered a statistically valid,

representative sample of the population of businesses nationwide.

The data from the surveys are only indicative of the drug testing

practices reported by the firms that responded.

4

15
12

Mr. Chairman and Members of the Subcommittee, it is a

pielpvire to orr.,,r haforp you today to testify on the extent and

nature of employee drug testing in the private sector. Inasmuch

as H.R. 691 would apply to private sector drug testing programs,

we believe this testimony will provide a useful characterization

of the existing programs that could be affected by the proposed

legislation.

At the request cf Congressman Schumer, we reviewed recent

surveys on private sector drug testing. Our report entitled

Employee Drug Testing: Information on Private Sector Programs

(GAO/OD-88-32, March 2, 1988) summarizes the information

contained in the individual survey reports and relates it to some

of Congressman Schumer's specific concerns about private sector

drug testing practices.

Results_ in brief

Overall, the surveys indicate that drug testing is a common,

but not universal private sector practice and that drug testing

may become more common in the future. The surveys also suggest

that larger firms, in terms of the number of persons employed,

are more likely to drug test end that firms with testing programs

are more likely to test applicants than employees.

With regard to the treatment of individuals who are drug

tested, the surveys show that, although they are generally in the

minority, there are firms that do not provide confirmat ry tests

to employees or applicants who initially test positive. There

are also firms reporting that they do not tell applicants that

the reason they were not hired was because of a positive drug

test.Before providing further details in support of these

observations and additional survey information, we will briefly

describe the surveys used and mention some of the methodological

qualifications that need to be kept in mind concerning this

survey data.

Overview of the surveys

To identify and obtain the most recent surveys on drug

testing policies and practices in the private sector, we searched

14 computerized bibliographic files. We also discussed our

information needs with representatives of over 35 public and

private organizations knowledgeable about drug testing practices.

In the end, we identified 12 surveys with items on drug testing.

However, we considered only 10 surveys usable for our purposes.

16
13

In general, large and medium sized firms--as measured by Cite

number of employees--responded to the surveys. Roughly half or

more of the firms responding to five of the surveys said that

they employed over 500 persons. Three other surveys

characterised the responding firms as among the nation's largest

business organizations. For example, one survey focused only on

Fortune 100 firms, which in 1987 employed a total of about 8.5

million people.

The data from these surveys are reasonably current. Of the

10 surveys, 5 were published in 19u7, 4 in 1986, and 1 in 1985.

The primary purpose of most of the surveys was to obtain

information about drug testing, or workplace drug abuse which

included drug testing.

The number of firms being surveyed ranged from a low of 100

in one survey to a high of approximately 35,000 in another. The

percent of surveys returned ranged from less than 1 percent to

100 percent. The actual number of respondents providing

information ranged from a low of 60 in one survey to a high of

over 1,900 in another.

Intercretina survey result6

Before discussing the survey results, certain qualifications

must be made concerning the use and interpretation of the data.

For a number of methodological and statistical reasons which are

detailed in our report, the survey results should not be averaged

or considered a statistically valid, representative sample of the

population of businesses nationwide.

For most of the surveys, certain limitations, such as low

response rates and selective samples, preclude projecting the

results beyond the group of businesses that actually responded to

the surveys.

Despite these restrictions, we believe these surveys are a

useful source of information about private sector drug testing.

The figures obtained from the surveys are indicative of the drug

testing practices reported by the firms that responded. This

constitutes a large number of corporations reflecting a broad

cross section of the nation's businesses.

The extent of drug testing

All 10 surveys provided some information on the prevalence

of testing, and almost all the surveys differentiated between

programs for employees and those for applicants. The results

2

87-610 0 - 88 -- 2 17
14

indicate that across the surveys a number of the responding

companies, though not a majority, had drug testing programs. The

highest figures were reported in two surveys that focused on some

'A the nation'e largest cempaniaz. Reaehly half the ...r...dente

to these two surveys indicated that they had a testing program.

At the low end of the spectrum, another survey said that only 9

percent of the responding firms had an employee drug testing

program. The majority of surveys also showed that firms were more

likely to test applicants than employees. In one survey, 55

percent of the respondents said that they tested applicants.

This was the hiyaest percentage reported across all surveys

concerning the extent of drug testing.

The surveys indicated that larger organizations were more

likely to have drug testing programs. For example, in one of the

surveys only 16 percent of the firms with less than 500 employees

had drug testing programs while 36 percent of the firms with

5,000 or more employees had testing programs. Four of the

surveys looked at the percent of firms testing for drugs

relative to their number of employees. All four surveys showed

that a greater percentage of the largest firms have testing

programs. The surveys also suggest that drug testing may become more

common. A number of firms that were not testing at the time of

the survey said they were planning to do so in the foreseeable

future. The lowest figure reported across surveys for firms

planning to test was 3 percent while the highest figure reported

was 20 percent. One survey noted a concern that if the trend

toward drug testing continues, drug users may gravitate to those

organizations known not to test and that other employers will

have to follow suit as a matter of self-protection.

The testina methods most often used

In all five of the surveys that inquired about drug testing

methods, the majority of survey respondents reported urinalysis

as the method tey used. In those surveys that asked about who

performs the testing, the majority of firms reported using

independent laboratories.

Seven of the surveys raised the question of confirming

initial positive tests with a second test. Although the majority

of firms in five of the surveys said they performed some kind of

retest, performing a confirmatory retest was not a universal

practice. Less than half the firms reported retesting in the

other two surveys.

18

3
15

Further, it appears that retesting was less common for

applicants than for employees. In two of the three surveys that

specifically reported on retesting of applicants, less than half

of the f4rrls aniel that they provided follow-up testing for iob

applicants who failed an initial test.

Three surveys made the distinctions among the following: 1)

retesting with some other confirmatory test, 2) retesting with

the same type of test as the initial test, and 3) no retesting.

Although more firms reported retesting with some other type of

urinalysis test, there were firms reporting that they used the

same test. Other confirming tests included some that were more

sophisticated, such as one of several chromatography urine tests.

Who receives drua testina and why

Among firms that tested cAployees, the majority of firms

cited testing for cause, such is after an accident, as the reason

for testing. As one survey noted, this type of testing may be

prevalent because it is less controversial and has support in the

courts.To a lesser extent, firms used random or periodic testing

for employees. The percent of firms reporting they did random

testing ranged from 23 percent to 10 percent across the seven

surveys providing information on this type of testing. It appears that testing for selected jobs, such as those involving

safety, is more common than random testing, but only two surveys

provided figures on this form of employee drug testing. In these

surveys, 38 percent and 34 percent of the firms reported testing

for selected jobs.

All six of the surveys reporting on the types of applicants

tested indicated that among firms testing applicants, it was more

common to test all applicants. Across these Eurveys, 79 percent

to 94 percent of the firms that screen for drugs said that they

tested all applicants.

Reasons for having and not having drua testina nroarams

Five surveys noted respondents' reasons for having a drug

testing program. Among the reasons often cited fa drug testing

were improving workplace safety, increasing productivity, curbing

illegal drug traffic, and reducing employee medical costs. Firms

that did not teat generally cited reservations about the costs

and reliability of drug testing as well as the ethical and moral

implications of the process. Other concerns included employee

opposition, legal implications, and some doubts among a few

4

9
16

responding firms that if an employee took drugs, and the test

showed that drugs were present in the body, it would not necessarily indicate job impairment.

What haptens_to those individuals testino positive

In the seven surveys that asked about the various actions

taken when an applicant tested positive for drugs, the majority

of firms said that they would not hire job applicants who failed

drug testing. However, a number of firms also indicated that

they would allow reapplication later. Across the three surveys

reporting figures on reapplication, the percent of firms

indicating they would allow reapplication ranged from 30 to 79

percent. Some firms noted that reapplication may be contingent

on such factors as a negative retest, passage of a specified time

period, or evidence of rehabilitation. Two surveys reported that

the majority of firms would nr.t consider an applicant if the

candidate refused drug testing.

There were more firms that said they would tell applicants

testing positive why they were not being hired than firms that

would not explain the reason for rejection. Across the four

surveys addressing this issue, between 2 and 25 percent of

respondents indicated they would not tell applicants the reason

for rejection.

In all five of the surveys asking about employees who tested

positive, the majority of firms indicated a preference for

rehabilitation rather than dismissal. Across the surveys,

between 52 and 89 percent of responding firms said that they

would refer an employee to a rehabilitative program. Two of the

surveys noted that the choice or combination of actions would be

determined on a case-by-case basis for employees who tested

positive. One survey noted that termination is often the final

outcome, but warnings or suspensions were also frequent

alternatives, particularly for the first offense.

A written drug testing policy can inform managers and

employees of company procedures for dealing tith drug use. One

survey asked companies engaging in drug testing if they had a written policy on drug testing. While the majority of firms said

that they had either a written policy or were in the process of

writing one, 14 percent of the respondents who drug test

indicated that they had no written policy or plans to develop

one. This suggests that, although they are a minority, some

firms operate without written, formal procedures describing their

drug testing program or procedures.

5

20
17

ma work in orooress

Mr. Chairman, this concludes my overview of the information

contained in the surveys we reviewed. Before completing my

statement, however, I would like to briefly describe a related

project we nave underway, also at Lb* tequost of Congr-----r

Schumer. This work will examine the degree to which states

regulate laboratories that analyse drug test samples.

As you know, one of the prime concerns regarding employee

drug costing is the ability to ensure accurate test results.

This concern becomes more important when one considers that as

more private sector firms implement drug testing, more commercial

laboratories may become involved in analysing the specimens.

The quality and competence of these laboratories have a direct

bearing on the accuracy of test results.

We plan to survey the 50 states next month to determine the

regulatory controls over drug testing laboratories. Among other

things, we will look at licensing requirements, quality control

standards, proficiency testing requirements, personnel

standards, and state inspection programs.

We have already identified some inconsistencies between

states. As part of the process of developing our survey

questionnaire we contacted officials in 34 states by telephone

and obtained some preliminary information. In 21 of the 34

states contacted, laboratories must be licensed or approved by

meeting specific laboratory requirements. Requirements in six of

these 21 states include fairness standards and privacy rights for

the individual. Thirteen of the states we contacted, however, do

not have standards or regulations that laboratories are required

to meet, although four currently have drug testing proposals

pending in their state legislatures. We will explore these

differences in greater detail as our work progresses.

We have also noted that under certain circumstances,

laboratories do have to meet minimum federal requirements, such

as when testing Medicare patients or military personnel, or when

engaging in interstate commerce. However, when testing private

sector employees, only the Clinical Laboratory Improvement Act

(CL/A), a federal law covering laboratories that do interstate

testing, would apply. CLIA standards include personnel

qualifications, quality control procedures, record keeping and

equipment requirements, and assurances of an acceptable external

proficiency test program.

Laboratories that do not test Medicare patients, the

military, or public sector employees, and operate solely within

ore state, do not fall under any federal laws. Based on our

preliminary information, we note that some laboratories in

approximately a third of the 34 states we contacted are

unregulated at the federal or state level.

This concludes my comments, I would be pleased to answer

questions.
18

Mr. MARTINEZ. Since we do have a general vote on right now T

am wondering, if the Members wanted to recess at this particular time before starting into the questioning which would give us ample time to question without beirg interrupted. Please bear with us and wait until we come back.

Mr. Srgviors. We would be glad to, Mr. Chairman.

Mr. Mawripach. We will return as soon as possible. We are adjourned now for a short recess.

[Recess.]

Mr. Marrero. We will go ahead and resume. We are back in

session.

Let me start of the questioning by asking you this. One of the things that I would think is important to employers is information

they probably should have compiled in conjunction with justifying the testing of employees, the cost factoris drug abuse really cost- ing them the loss that they feel it is so that they are justified to drug test.

Is there any comparison? Did you do any comparison of the cost benefit or lack thereof between the companies that did do drug testing and the companies that didn't?

Mr. STEVENS. Some of the studies, Mr. Chairman, did address that question. But what they got back was primarily anecdotal in- formation, nothing very specific. I mean, nobody was able to put a quantification on either the benefits or the costs of drug testing. They talked about an improved workforce morale and that sort of thing. But it was nothing that could be quantified or that, in our view, would have methodological substance to it.

Mr. MARTINEZ. So, actually, there is no degree of accurate finan- cial documentation of loss?

Mr. STEVENS. No, sir, not in these studies.

Mr. AUGHENBAUGH. We have found out, though, in discussions with a major laboratory that the higher the possibility that there will be a large number of people testing positive, the higher the cost that will be charged to the corporation requesting the labora- tory to test.

They pretty well have an idea, based on the type of industry that the firm is in, how many people will eventually test positive. And

they pretty much skew their bid to compensate themselves for the high cost of doing those tests.

Mr. MARTINEZ. I see.

Have any of the companies that are doing the drug testing thought or even considered vhat happens, for example, in the case of Juanita Jones, when they get sued because it was unjustly and wrongly done? You know, there are many times that we are pro- scribed certain kinds of drugs by a doctor for certain illnesses and those residues may show up in a drug test, and that doesn't make us a drug addict or a drug abuser.

Haven t employers realized that one of the important aspects, as was indicated by Mr. Stevens, ie there is no follow-up, in many cases, on the initial test even though we know that many of the less expensive tests are not accurate? There is one test that is more accurate than the others, and even that is not 100 percent full- proof, it just does more to erase any doubt.

22
19

In consideration of the things that I talked aboutthat there might be something other than drug abusewithout giving the person another test to confirm, employers leave themselves open

for a lawsuit.

I would think that requirements in Mr. Schumer's bill, would

safeguard employers, and this would be a beneficial piece of legislation for them.

Do you have any comment on that? Mr. Slims. Yes, sir, a couple of comments. One, you will remember that a lot of these companies are testing

applicants rather than employees, and it is easier for them to kiss off somebody who wants a job because there are plenty of other people to stand in for them than it is to take their present employees.

Among present employees, also, they are generally still a majority of them testing only for cause. Now, I think that Ms. Jones, as I understand, would be in a health and safety type occupation where

that '4It apply.

But - proportion who are doing the random or periodic testing, just anybody in the company is eligible, is really still much smaller

than those who are doing it on a more selective basis or who are doing 't for all applicants rather than employees themselves. Mr. MARTINEZ. Do you know if there are any States now that ban drug testing or regulate it at all? Mr. AUGHENBAUGH. We have done a little bit of workit's very preliminaryon the laboratories themselves, and as part of it we have been looking at any statutes or regulations that involve drug

testing on a state-by-state basis. We have dame work now in 84

states; 21 states have regulations of some sort, whether they be

statutes or maybe just regulations that are a part of, say, the health department or the department of labor within that State. But we have not completed our work. We have a questionnaire, as Mr. Stevens pointed out, that is going out to all 50 States. After

that information has been obtained from them, we will have more

accurate and complete information on exactly what each State is doing with the laboratories and to a certain extent with the corporations within those States.

Mr. MARTINEZ. Well, can we get that information as soon as it is

available?

Mr. AUGHENBAUGH. Absolutely.

Mr. MARTINEZ. Thank you. As to the States that are regulating drug testing, why are they

doing it? Did you get any idea? Mr. Sumo. I would assume, Mr. Chairman, that the same pres- sure are operating at that level as they are at the Federal level, and there is a good deal of attention to the quality of the workforce. I think one of the reasons why there may be more attention paid to bills like Mr. Schumer's bill might very well be that if the

states do begin to regulate and become more active and do differ- ent things among themselves, the employers themselves might find

some advantage to having some uniformity, particularly those with

large, nationwide workforces. Mr. MARTINEZ. Just a couple more questions. Was there any in- formation from insurance companies with whom these companies

A .2 3
20

carry insurance on many of their losses, relating to the loss caused

by drug abuse?

Mr. &IZMIR. Not in these studies that we looked at, Mr. Chairman, no.

Mr. AUGIIRNBAUGH. We have found that in almost all cases the

insurance companies are exempt from any laws or statutes, regulations, whatever, within any of the States where we have founa any of these types of regulations.

Mr. Mamma. When you say exempt, that means that payment was invalid?

Mr. AUONINBAUGH. Insurance companies have a lot of tests done

on the people that they are going to issue policies on, and although

they do have a large number of tests done, they are not regulated in any way.

Mr: MARTINEZ. My last question is did you delve into the effectiveness of employee assistance programs as to what they actually

save the companies rather than just drug testing and firing? Mr. %WRNS. Not the effectiveness. We confirmed that some

companies do refer, do use the results of the drug testa to refer employees to assistance programs But remember, again an awful lot of this is taking place among applicants, and the easiest thing for

the company to do there is just to not even bother with a confirmation, perhaps not tell the employee or the applicant that the reason he hasn't been hired is the drug test, and certainly not to devote

any resources to rehabilitation. The company has no responsibility towards that.

Mr. MARTINEZ. Isn't the company being kind of shortsighted there? You know, the perm could be on some kind of medication

but the company is automatically assuming this is a drug abuser and we don't want him. Yet, he may be a very talented individual who could be very productive for that company. Wouldn't you

think they are being a little shortsighted by their assumption? Mr. STrvieNs. It would be easy to discern that. On a cost basis, the confirmatory tests are much more expensive, much more sophisticated and therefore much more expensive than

the screening tests. I would think that only in an industry where there were many more applicants than people the company could actually hire would that become a real consideration. But the stud- ies we have didn't really address that.

Mr. MARIINEZ. Than!: you.

We have just been joined by Mr. Gunderson, the ranking minori- ty member.

Mr. GUNDERSON. No questions, Mr. Chairman.

Mr. MARTINEZ. No questions. Mr. Schumer.

Mr. Saimaa. Thank you, Mr. Chairman. Again, let me thank the committee for allowing me to ask some

questions and sit in. My first question to the panel is, over the last few years, what kind of increase has there been in the number of companies begin- ning drug testing programs?

Mr. STEVENS. A couple of studies have come through just since

the work we've done has been completed. I think there we are find24
21

ing 10 to 20 percent just in the past year or so, 10 to 20 percentage

points increase.

Mr. SCHUMER. Increase.

Mr. STEVENS. In studies that were updates of ones that have been

done before.

A second indicator, and perhaps more important, is that when we asked or when the surveys asked companies what their plans

for the future were, we found as many as a quarter who didn't now

have any kind of drug testing programs saying they intended to

put one together, or "At least were considering So, that is an indication to me which confirms that the practice

is likely to increase.

Mr. . All right. I have some numbers here that say that in 1985 a survey of the Fortune 500 show 18 percent did some program, a new survey

shows 49 percent. So, that's a pretty dramatic increase. And you

say it's going to keep going up further. Mr. Smarm Yes.

Mr. SCHUMER. Right. All right. The second one is what is the number of companies

that require a positive test to be co-.Afirmed by a second confirmato- ry test? The reason we ask thatand I know that the chairman

has focused on that toothe initial test which they usually give is cheap and inaccurate. The second test is accurate but very expensive. So, of companies are giving the first test, you are gding to find one, two, three, four, five out of a hundred, as many as one in

twenty people be labeled a drug user even if they've never used drugs at all, in addition to people who might have had a sesame

seed roll or something like that the day before. One, how important is it that they give a second test for accura- cy; and second, what number of companies do use the second test for both applicants and for employees? Mr. Simms. It is very important that there be a confirmation

because of the prevalence of false positives on the screening tests. It is basically a screening test and it is cheap. Now, the number of companies who claim to give confirmatory

tests is about half. It varies from employees to applicants They are much less likely to do so among applicants. But one of the problems is that they very often use just the same screening test on the

same sample for confirmation.

Mr. Scsumnta. Oh.

Mr. &minis. And given some of the chemical properties, this

can result in another false positive. Mr. Saivism Right. Mr. &mils. It is, in our view, important that companies, when

they use a confirmation, use a different type test, something more

sophisticated than the simple screening device. Mr. SCHUMER. Right. And that is an interesting point. So, even

those that do confirmations are using the cheap test the second

time and it could come up with the same false positive, as they say. Mr. Swims. Right. Mr. SCHUMER. I take it, as you mentioned, for applicants the number of firms giving second tests is even fewer. So, they could

25
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just say, "Hey, we didn't hire you because we don't like people who wear blue shoes or something," and out you go. Mr. ersvms. Yee.

Mr. Stumm Okay. Mr. AUGHENBAUOIT. Mr. Schumer.

Mr. SCHUMER. Go ahead.

Mr. AUGHENBAUGH. With the work that we are currently doing with the laboratories as it relates to the laws and regulations in the states, of the 21 states that we have preliminary information

on that do have regulations, 8 of them require that the laboratories in their states use a confirmatory test. I believe 7 of those require

that it be the GCMS, which is really the better. Now, that does leave, just in our quick look, 18 of the 21 that have regulations don't require a follow-up, and also it leave the other states of the 34 in our quick look that don't require anything at all.

Mr. Samna. Right, and as I understand your testimony, there are 10 states that have no regulation at all of the laboratories, is that right?

Mr. AUGHENBAUGH. Actually, we ha-m 13. Mr. SCHUMER. You said 13?

Mr. AUGHENBAUGH. That have no regulations. Mr. SCHUMER. So, in those 13 states, the laboratory could bejust randomly spitting out results; they could just throw darts at a board and say positive, negative, positive, negative, and the em- ployee, if he's private sector, would have no resource at all? Is that fair to say?

Mr. AUGHINBAUGH. Unless they are involved interstate commerce. The laboratory would then fall. under the CLEA act. But if they are solely working within the state, they would not be under ankrrer=.

Thank you. Thank you, Mr. Chairman. Mr. MARTINEZ. Thank you, Mr. Schumer. We thank you again for appearing before us and giving your ex- cellent testimony.

Our next witnesses ct sist of a panel. The first is Juanita Jones, bus driver, District of Columbia Public School System; accompanied by David Soley, her attorney.

We also have Dr. S. Joseph Mule, director of New York State Division of Substance Abuse Services Testing and Research Laboratory; and Dr. Arthur McBay, chief toxicologist, office of Chief Medi- cal Examiner, State of North Carolina.

Mr. Soley, did we pronounce your name correctly? Mr. SOLEY. Soley, Mr. Chairman. Mr. MARTINEZ. Soley. Very good.

We will begin with you, Ms. Jones. Would you like to begin?

26

-.-.
23

STATEMENT OF JUANITA JONES, BUS DRIVER, DISTRICT OF COLUMBIA PUBLIC SCHOOL V3TEM; ACCOMPANIED BY DAVID

SOLEY, DAVID & HAGNER, P.C.

Ms. Joins. Good morning, Mr. Chairman, members of the House

Education and Labor Subcommittee on Employment. My name is

Juanita Jones, and I am 52 years of age. I have four grandchildren. Mr. Maamsz. Would you bring the microphone toward you?

There you go. Thank you. Ms. JONI& My name is Juanita Jones. I am 52 years of age. I am

a grandmoth of four grandchildren. I am employed by the D.C. Public School System Transportation Department for the Handicapped. I have been employed since February 5, 1981. And I was a

victim of random testing. I was called in and was put on a bus over

to Bennington Heights Clinic for test: g, and I had a urine test, and it was tested positive for drugs, which I wasn't guilty of.

I came back maybe 3 or 4 days later I was called into the office,

and they told me I was being terminated. 1 said, "Why?" And they

said because we found marijuana in your urine. I said, "It must be a joke." They said, "It's not no joke." I said, "Stop kidding." They

said, "NG, we are not kidding. We found marijuana in your urine."

I said, "I never used marijuana. I am not a drug user, and I am

not going to be labeled, I would hate to be labeled as a drug user." He said to me, "You go punch your time card out and go home, and 3 or 4 days you will hear from us and then you come back to

my office."

But I never did go back. I found other ways of dealing with them.

[The prepared statement of Juanita M. Jones follows:]

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24

STATEMENT OF JUANITA M. JONES

BEFORE THE

COMMITTEE ON EDUCATION AND LABOR

SUBCOMMITTEE Or EMPLOYMENT OPPORTUNITIES

ON BILL H.R. 691

THE "EMPLOYEE DRUG TESTING PROTECTION ACT"

APRIL 21, 1966

Coed morning Ar. Chairman and members of the House

Education and Labor Subcommittee on Employment Opportunities.

Thank you for this opportunity to speak on Bill H.R. 691, the

"Employee Drug Testing Protection Act."

I am a 51 year old grandmother of four and have, since

February 5, 1961, been an school bus attendant with the

District of Columbia Public School System. My job as a school bus attendant is to love and care Or the physically and

mentally handicapped children who ride the school bus to and

from school. I take my job very seriously and stay far away

from any and all activities involving illegal drug use. Despite these facts, I was summarily fired from my job based on

a drug test which erroneously indicated past use of marijuana.

I have now been reinstated to my job as a school bus

attendant, as a result of a suit which I brought in federal

court. I hold no against the School System. My case, however, illustrates the frightening injustice that can be

perpetrated upon a citizen who is compelled to provide a urine

sample, for drug screening without any reason to suspect that

the individual uses drugs. After being fired, I was denied any

meaningful opportunity to challenge the erroneous drug test or

to present my position in person to school System officials.

Having been wrongfully branded as a drug user, I was humiliated

and had difficulty finding employment until the U.S. District

Court ordered my reinstatement. In the meantime, I lost my

closest friends, and, for years, was considered a drug user by

my neighbors and by the congregants at my church.

I recognize that drug abuse is a serious problem in

our society, and that employers have a vital interest in

ensuring the safety and well-being of employees. These

laudable ends, however, cannot justify the means which many

employers, through drug tests, have adopted to address these

concerns.

28
26

The evils that can result from an ill-conceived drug

testing program are well illustrated by the undisputed facts in

my case. As a school bus attendant with an exemplary record, I

was one of hundreds of Transportation Branch employees

arbitrarily ordered by the School System to submit a sample of

urine to be analysed for traces of illicit drugs -- despite the

fact that the School System had absolutely no reason to believe

that I had ever used, possessed, or been under the influence of

any controlled substances. The urine samples of myself and

other employees were then analysed by a preliminary drug

screening process. In spite of the recommendations of the

test's manufacturer, the Food and Drug Administration, and

authoritative scientific articles, my employer failed to

confirm positive results of these preliminary tests with an

independent, alternative testing technique. Nonetheless, I was

summarily dismissed solely on/the basis of these uncon:irmed

test results. All of my attempts to obtain a hearing after my

termination, with the right to be accompanied by counsel, to

present live evidence, and to cross-examine witnesses, were

denied. It was not until one and a half years after my

termination that I was vindicated by the United States District

Court, which recognised the absurdity and unfairness of my

emplc-ez's drug testing program and ordered that I be

immediately reinstated with full back pay. See Jones v. McKenzie, 626 F. Supp. 2500 (D.D.C. 2966).

The unfairness of my termination can be clearly viewed

in light of my employment record, the severe flaws in my

employer's drug testing program, and the harm that has been

done to me. I originally joined the District of Columbia

public School System as a school bus attendant on February 5,

198i. My job, which never involved driving or being in charge

of a school bus, was making sure that my schoolchildren were

properly seated, and assisting the bus driver in maintaining

order and decorum on the way to and from school. I took pride

in my job and excelled in my performance. I reported to work

regularly and promptly, and consistently received excellent

ratings from my supervisors (see attached evaluations). Many

of the parents of the children I assisted wrote letters

praising my performance (see attached letters or praise).

My accomplishments with the children I attended to on

my school bus route are well illustrated by a few of the

multitude of complimentary letters written by the parents of

the handicapped children I assisted. According to a letter

from Melissa Pulling:

I would like to extend praise and

plaudits to the staff on school bus route 117

to Bethesda, especially to Ms. Juanita Jones,

- 2-

29
26

attendant on that route, who extends the

atmosphere of home from the front door to the

school door.

Ms. Jones is a surrogate mother to the

children, making sure hats and mittens are on,

tearful departures soothed, and a cheerful

warmth maintained. These things are of

special importance to these young people for

whom a "good" or "bad" day could start with

the quality of the ride to school. When she

is not there, the day is not quite the same

for my son.

In a letter from Dr. Alice 0. Adams, Dr. Adams saluted these

same qualities of a dedicated and caring school bus attendant:

Mrs. Jones is an excellent attendant, in

that .-10 is polite and courteous and seems to

have a sincere interest in her charges. She

notes their behavior patterns and has kept us

apprised of Sharon's behavior and never fails

to let us know if she acts in an unusual or

unacceptable way. This is the sort of thing

that helps parents stay on top of problems.

We really appreciate this and cannot express

our thanks to Mrs. Jones enough. I think she

goes beyond the call of duty to the extent

that it should be recognized . . . Similarly, the School System received the following letter from

Lorraine McCrae:

Mrs. as has done in my opinion an

outstanding job while working with my son

Calvin Hamption. Mrs. Jones seems to take the

time to understand and listen to the children

when they are having some type of problem or

just plain want to talk. In the years that

she has worked with my son he has grown very

fond of her. Please extend my thanks and

appreciation to Mrs. Jones and I look forward

to working with her again in the coming school

year. Ad stated by Rita M. Johnson:

Since Ms. Jones has transported my daughter

for two years, since she began school, I'd

like to particularly extend my appreciation to

- 3 -

30
27

her. Services provided well and pleasantly

should not go unrecognized and unrewarded.

Despite this exceptional record, in August 1984,

without any reason to believe that I used or possessed drugs,

the School System subjected me to urinalysis screening for drug

abuse. The School System's drug testing program, which was

newly adopted at the time, was based on a directive forbidding

the use, possession, or being under the influence of alcohol or

illegal drugs while on school premises. However, as my

employer admitted in my court case, the specific test used to

indicate whether an employee has been using marijuana is the

Syva Company's EM:T Cannabinoid Urine Assay ("EMIT test"),

which is incapable of determining whether an employer uses,

possesses, or is under the influence of drugs at the time the

test is administered. Instead, the EMIT test merely detects

the presence of THC metabolites, the broken down by-product of

the active ingredient in marijuana and hashish. As the

District Court determined, the EMIT test cannot indicate when

marijuana is absorbed by the body because THC metabolites can

be retained in an individual's system for days and e'er weeks.

Jones v. McKenzie, 628 F. Supp. 1500, 1503 (D.D.C. 1986). In fact, marijuana may be detected in the urine for as long as

three weeks after being digested. In addition, as the District

Court found, the EMIT test cannot indicate whether marijuana

was ingested by active use or as a result of passive inhalation

in the presence of others who were smoking marijuana. Jones v. McKenzie, 628 F. Supp. at 1503. Thus, the EMIT test does not

cannot determine whether a School System employee is

currently physically fit or able to perform his or her job.

In addition, urinalysis tests for drugs are often

inaccurate. Syva Company, the manufacturer of the'EMIT test,

as well as the Food and Drug Administration and other

scientific experts in the field, have repeatedly cautioned that

the EMIT test is subject to a certain degree of inaccuracy and

that preliminary results must be confirmed with an alternative

testing technique if the test is relied on to make important

decisions such as hiring or firing an employer. See Jones v. McKenzie, 628 F. Supp. at 1505-06. Nevertheless, many

employers, as was the case for me, fail to confirm preliminary

results and errors in the testing do occur.

Despite the fact, as my employer conceded, that it had

no probable cause or even reasonable suspicion to believe that

I ever used illicit drugs, I was herded into a bus with other

employees and shipped to the Henning Heights Neighborhood

- 4 --

31
28

Health Clinic to wait my turn to provide a sample of urine.

The nurse provided me with a plastic cup and ordered me to

return it to her full of urine. Samples were not carefully

labelled, and it would have been simple to switch urine

specimens.

On August 16, 1984, I was informed that my test

results were "positive" for marijuana and, solely based on this

drug test. I was ordered to punch out my time card and not

return to work. I was given no chance to defend myself before

the decisicn to fire me was made.

My formal termination notice stated only that I was fired for violation of the School System drug testing

directive, even though the School System admittedly had no evidence that I used, possessed, or as ever under the

influence of drugs while on schoolPremises. Immediately upon

being dismissed, I voluntarily underwent another identical drug

screen, because I knew the test had to be a mistake. The

results of this second test confirmed that I did not use

illegal drugs.

I appealed my termination and requested a hearing,

including an opportunity to appear in person, with counsel, and

to have the right to present live evidence, to have witnesses

testify on my behalf, and to cross-examine opposing witnesses.

These requests were refused and a limited written appeal was

denied in November 1984.

As a result of my termination, I v,s branded before my

co-workers, family, and comrinity es a drug user. My best

friend, wrongfully believing that I was a drug user, refused to

speak to me. For over a year, I was unable to find another

job, especially one which would involve caring for children.

It was not until February 24, 1986, that the United States

District Court vindicated me by ordering my immediate

reinstatement with full back pay. At the same time, the

District Court also issued injunctive relief which, among other

things, enjoined my employer from again testing me without

probable cause to believe that I was using, in possession of.

or under the influence of illicit drugs, and issued the

following rulings of law:

(1) That my employer violated my Fourth Amendment

rights by subjecting me to a urinalysis test for drugs without

probable cause, based on specific objective facts. to believe

that I used, possessed, or was under the influence of illegal

drugs;

- 5 -

32
29

(2) That I was fired arbitrarily and capriciously

because the urinalysis test which was the sole basis for my

termination was not properly confirmed; and

(3) That, in violation of my Fifth Amendment right to

due process, I was not provided with adequate procedures,

either before or after my termination, to confront the evidence

against me and challenge the loss of my employment.

The School System appealed the portion of this Order

enjoining it from subjecting me to a drug test in the absence

of a probable cause to suspect drug use. The U.S. Court of

Appeals heard my case on October 2, 1987 and, on November 17,

1987, ruled that the School System could only conduct random

urinalysis tests where the following three conditions are

satisfied: (1) the tests are administered only on employees

whose duties have a direct impact on safety; (2) the testing is

conducted as part of a routine, reasonably required,

employment- related medical examination; and (3) the test

employed is one that has a nexus to the employer's legitimate

safety concerns, i.e., which tests for on-duty drug use. Jones v. McKenzie, 833 F.2d 335, 341 (D.C. Cir. 1987). The School

sterSylow seeking to take this matter before the U.S.

Supreme Court.

Although my battle to vindicate myself from the

horrible stigma and loss of livelihood associated with testing

positive for drugs is over, many others are less fortunate.

Indeed, if I had not bean fortunate enough to be a government

employee, I would not have even had the opportunity to

vindicate myself. Dragnet drug testing of employees. f.-dr

whatever the reason, is wring. It has caused great agony a:c1

suffering to me personally. I urge the Subcommittee to limit

the abuses caused by such a gross and unregulated invastmn of

human dignity.

0581a

- 6

87-610 0 - 88 -- 3

33
30

Mora -Rom of THE ionucr OF COLOMBIA caw I

itopeet st Porterwma *Meg

(109wr. i 1)piheas - Itommilontft &NM WS

Nunn et Lynn= TIOBWOWn JONES MAIM Att.d. - RAI 3

OmmorommitoromMuom, Di.. of LogisticalluppeTt Myr ginowirdsipm

m"4/1/St '' 3/31/S2 Wg; tr= 1 AM Oftes L warm

mows orwk ammia. 'Swot =MN=

Gamin ill .a- MOM

..t MOM et WA Paton

--t- Mims

OM a.. WIM lamehr. I. =am awn ea Onurouss dW Ms Kw --t- u-rso

Moronsos d Der Molion Mow of TIN ad bionlio

*WWI IrAS IA= honni= Orrof we In ltnni ito law

-.- a.. aionontion P=SONAL MATIONS !Own= rin M.-re -Ai Mao t- Ford OM=

FACTORS FOR RATING

. A WAFfAltaft ai

....t. Mawr In IM Inundson

t-. Palmone In Inwpoi=

a sursavrem *I Rama 0 IMINsees k: Mil town= Ay*. IV= hop== Mast ernIM= too-pone Clo== Innotm . . 1.=1,4...fte ad IMIMI= iniil el ta Mooftwo Onvoi= MOM= ad Omani IOW et Mnsiern

lonnwing, Miss at ttoodnoft hitleor in sok Pow= NW Mob ' Odwin ashy OM= Avaa0.. Pa

0=Mnlilion tonso

Dosi=mins ad Mow= el Magam sod Igmblo

WM on am 110 in di wimples mom et InsoMaa. I. Tio Nonninn. Pownima. aL

T. Mat Moltn

AM= Om TEMPORARY Asacrearns OUT or JOL CLAoSIFICATION

AosnmMtnona Amnon

COMMDITS

Mto ocoMoso's snap" .d tiolidasom sod kebob ocher minimum. Comments MUST be mods lot....Wet or Smishrtom

SEE =ACHED

r ISIUTOVANCI RATING ASSIGN= 00 Oitsmdlos ( ) balks . (

Ns ning Is Insol no ony pm= Wooled= nod elnorodra Ms Fly of Ile oapiors's

Mr I nos f-21-9

. MMIN.541".= 4*2-1-sx

bCPS s= II Arms
ler., el *sullenest Santee*

31

Melaka it Logistical Support

=SATING PLR OD APRIL 1 1,81 THRO MAUR 31, 1P12 Ottmo, TO AMITAINID IN REPORT OF PERFORMANCE RATING, PO PORN 12,

NIS AMMAN

1. trinityliitudjaik- has always been above par.

Comoletion of iftri en Schedule -has always been above the standard.

2. Quality -

Amman - bas always bee superior.

Fastness of** Product - has always been done in a manner rarely exhibited.

fig, - has always exceeded job requirements.

Maud- bas always been above the nom.

aggLinguan- has always been above the standard.

Witten Ixoressim- has always been superior.

3. Work !obits - 211411119:LAUVIAPLiSSZIP- iN always oonsoioum of the working. hours.

LIME= - ham elvers been superior.

e 9f Pules Inolmdbar Safety - is extremely observant of and complies

rules. 11119111ALMILAILAMMU- is always effectively utilised.

Gasslienee with** Instructions - has always been above the standard.

Orderliness an WO71- ham always been done in a asnner rarely exhibited.

Job Interest - has always been exceptional.

Initiative - bas always been superior.

35
32

,.. CONTAI 131 WORT OP PRRIPORKAIRX RATING 10 TORN 12

1;: .1-f V al 1 2 oR MIL

koppopeSon bag allays beta gait* iapatiaitle

b., Paseas1 Relatioam -

g - auks astmely roll with as-voidcan.

amilmiukikzuk - to alloys polite, balpfal sad aeartasas. ts - has shay. bees lapeeoabla.

5. Adaptability

211S2a111211111raktaikanc - Roo awry am above Pore

bassuppLaammogin - is atop dose In moan vastly inhibited.

dIF

36

34

PUBLICtCHOOLS OF THE DISTRICT OF .....K.USOSA

bow se Forlanarat Ragas

(Prepre M ?pike" - humsnisas w Raw" DM

V\ Owe t

Mem d UM

Csehrim

PLU

saftim WI* M .1 Asa.

IWO= GM* hoer Illmere

heirs

±Ai &polo Wass bowels 1 wag awn .

rd %Aft Now

MMus

tetras d Alb Wig ley bow d TIN ad Illrils

Orillms NI Mat bausiles

°Mob= ill WM lam

Waft

Proftlims

1. IIIIIKINAL IIIIIATIONI ±Caprohe WO dolostam

Only via Ile Mlle Jeremiad NIS

FACTORS FOR RATING ±~awn al

Paftear. Kw Saislas

hellowerm 4. Impair

suraionsave bA1. RAMON 0 Itaufteare Plumy bow Poem

Mopes %a Paim r Sues m w %ma Papaw

OrMse ANIUMPIS

taletemWeors= IMAM d

Deries. Qui Met eif Moir

ammo.. mama r Orwroaa Bamboo imat

hark. ISO Koh

Molly doll PAW Aamag a ea Omisiew*Mis Pare Owniagra et Maim et Paspaa ma Uri* Mr is um 1110 is mg ~we ems Ilsavierw lam ne Amin. ofts. ea -

Irftive Oves TRAPORARY ASSIGNMENTS OUT OF JON CLASSIFICATION Agairmarbas kora . Wog

COalAtINTS

eveakeees weeepbeaWdefleleeeke ae1 WWI Wear cosmos& COMMilitS MUST Ime awe ke Imam ee Serletwer /31/44=e4sel 10411

/ERFORMANCI RATING ASSIGNED

( OWSWItti IV Imam ( ) Sati ory ( ) blab This maw ea imp pawed slosnrise of is samoyse. warms, LD 11# -AS,

Average ( I tkessishavv,

bcvs Fens 13

38

Sore

Seale
4,44; Mice et Alessi lemma Services `''s*** E T ON

2119 5TH ST., N.E.

WASHINGTON, D.C. 20002

May 6, 1963

MEMORANDUM TO Ms. 7uanita Jones, W E-03, Bus Helper and

Mr 7Ric ar , AE-07, Motor Vehicle OperMtor

SUBJECT: Letter of Appreciation

The attached letters from Ms. Mulissa Pullius, Ida Smith,

Cheryl Shropshire and Dr. Alice Adams, parents of children that

ride on your school bus extending their approval of lour professionalism in dealing with their sons is accepted with a great

deal of satisfaction. This is the second time this month that I

have receive favorable correspondence on you. I again would

like to express my appreciation on your outstanding perfor:ance

and again for bringing accreditation to the Transportation

Section and the entire District of Columbia Public Schools

System.

My thanks for doing an outstanding job.

A copy of this correspondence will be placed in your official

personnel file.

WCF/sjr

cc: Mr. Wheeler

Official Personnel Pile.,

Work Jacket

Transportation Officer,

39
36

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Olvisiesel dad

TRANSPORTATION SECTION

211S STD ST., N.S.

WASHINGTON, D.C. 20002

March 2S, 1983

MEMORANDUM TOs Mrs. Juanita Jones

NAE-03, Sus Selper

SUBJECT: Letter of Appreciation

The attached document sent to Mr.Prench from Ms. Rita M.

Johnson, parent of one of the student's that you transportlis

accepted with great deal of satisfaction.

Mr. French, the Transportation Officer, is away on school

business at the present times however, I know that he will be

proud of the professionalism that you have demonstrated. it is

noted that this letter of appreciation from this parent is a

result of you performing your duties in manner that escells

your subordinates. Not only does this reflect favorably on you

but the Transportation Section and the entire School System.

My thanks for job well done.

A copy of this memorandum will be placed in your official

personnel file.

CIS /sjr

///

ccs Mr. French

Mr. Wheeler

Mr. Anderson

C ficial Personnel Pile

Wurk Jacket

edsslae.I4406(--

CLAMS N. SCOTT

Assistant Transportation Officer

45
42

MAR 2 3 1983

Me. William Preach

2115 Fifth Street, M. S.

Washington, D. C. 20002

Dear Mr. French:

Rita N. Johnson

4126 Seventh street, N. M.

mashington, D. C., 20011

I would like to take this opportunity to express and to

bring attention to extraordinary transportation services of Ma. Jones and Mr. Casey. There is no way I can express my

appreciation of services provided by these employees of the City.

In no small way, they contribute to my work day. My day

begins with a warm greeting from than around 7:20 a.m., and

I feel assured my daughter is in expert custody. Then around

4:30 p.m. my daughter is returned home again with a pleasant greeting.

Conversations with my daughter, and on occasion with her

classmate; gives me added assurance that these City employees

carry out their responsibilities in an exemplary manner. I am very pleased with services provided by them.

Since Ms. Jones has transported my daughter for two

years, since she began school, I'd like to particulary extend my appreciation to her. Services provided well and pleasantly

should not go unrecognised and rewarded.

46

Sincerely,

to M. Johnson

Sus Route 4 117
43

lar

le ilillImifivelehr

eIS

sti*, Officer. 5th Street, Mt.

iiiiningtoo OC 20002

war or. French:

This note is to mpress ay appreciation to Mrs. J. Jones. Bus Attendant

is Bette 117. Mrs. JOINS Ms done in my opinion an outstanding job while

imessog with ay see Calvin limption. Mrs. Jones seep to take the thew

to sederstand and listen to the children Woe they aro having saes type

or problem or Just plain want to talk. In the years that she has worked

with my son he Ms grown very feed of her. Plum Wand ess thanks and

appreciation to Mrs. Jones and I look forward to working with her again

in the coming school year.

May 12, 1983

Si literal ye,

...2

NithAs2444-12, M Ce4-41

terra i no- McCrea

47

S.A.E. 78
44

mr. William French

2115 Fifth Street N.E. vistiagtca, D. C. 20017

May 23, 1983

444 Riggs Road N.C.

washington, 0. C. 20011

O ur Mr. French Asia reapers for the claming another school year, it is my pleasure

to commend two of your employees -- ors. Juanita Jones and mr. Richerd Casey,

Route 5117. This Lew son's third year riding the school bus with Mrs. Jones in

attendance and during this ties we have bean generally pleased with the service

1114261 erallraward the children and tglaailitel. Ply son genuinely are t neat in appearance (and the bus is clean), they are

them and lake forward to riding the We each day.

In the case of children :sick special needs, it is an important that they

feel lowed and protected by the significant caregivers in their lives; and Mile

they are an that Ems for three to four hours each day the driver end attendant

are their caregivers. I have talked with Mrs. Jones and Mr. Casey, and for the previcas two

years Mr. Bolding, and I get the feeling that these people sincerely enjoy these

special children with whca they share their day and this love gets communicated

to the children and toes as parent.

Alan, Mr. Frendh, Ica are to be commended for the general upkeep and

offilmaimbe d your buses. In the past three yummy son intoned as only

once or twice that his bus had broken down while they were onboard. And, around

the City I've not noticed too easy instances of malfuncticeing tames in traffic.

(Though I Iowan you do have them) This says something about management and

preventilnivaintenence care.

Administratively, this has been a superb year tor us. In the early

weeks of this school year I even received two calls Eros the dispatcher saying

the has would be late arriving. This helped as in planning when to put sly

son's cabarweer on and not have his get overheated and overly-anxicus about

the bus' arrival. Also, the policy worked out tetween Transportation and

Christ Church Child Center regarding the arrival time of O.C. Students when Prime Gicop's hid a delayed cpennirg was so and more sensible this year.

Again, I amend you and your staff on a job well done for 1982-83.

We look forward to workin2 with you again nest year.

Yours sincerely,

40&=4-

Mr. and Mrs. Ronald A. Armistead

48

46

Mr. MARTnizz. Very good.

Ms. JoNEs. I take care of the handicapped children on the bus in

from home and to the school and back and forth. I am very much a lover of children. I try to do my job the best that I can, and I have

several letters from the parents and from the schools, and I have no problem at all other than that test that they said was confirmed as positive.

Mr. MArtinm. How did you feel when you were told that you

are a marijuana user and you know you're not? Ms. JONES. How did I feel?

Mr. MARTINEZ. And knowing that you're going to have to tell your family and friends that you've been fired because they have

accused you of this.

Ms. JONES. I felt sick, very sick inside. You know, I just couldn't believe how they would even think about not giving me a second test, knowing that I was the type of employee that I was, I just couldn't figure it out. But to me, I was just totally sick, sick because I had to tell my family and especially my little grandson, 13 years of age, and my husband. I was sick to my stomach. Mr. Matamm. That was a very traumatic experience, I would

e.

. JONES. It was.

Mr. MARTINEZ. I know how most people feel when they are ac- cused wrongly of something. And in this case, it was costing you your job. Ms. Joao. It did cost me my job. But later on I was reinstated. The court reinstated me with back pay and whatever. Mr. MARTINEZ. I didn't mean to get into questioning you right away. To me it is a tragedy when people who are basically honest and working hard for a living and trying to do their job well all of a sudden find themselves in this kind of a predicament because somebody else is completely insensitive or doesn't accurately know what the real situation is.

Ms. Joins. Right.

Mr. MARTINEZ. Before anybody should accuse anybody, they ought to very extensively go through every procedure and step they

can take to assure that they are not accusing falsely. Ms. JONES. Right.

Mr. MARTINEZ. Wouldn't you agree with that? Ms. JONES. Certainly.

Mr. MARTINEZ. Were there others like yourself in the same pre- dicament? Do you know of any others that were in your particular situation in your particular area?

Ms. JONES. There were others. There were others.

Mr. MARTINEZ. Did you have any reasons to believe that this might be more than just accusing you of drugs? That it might be

an effort to try to get rid of a certain number of employees or cer- tain kind of employees or anything else? Ms. JONES. No -eason whatsoever.

Mr. MARTINEZ. You think not.

Ms. JONES. I just think it really was a mistake that was made, you know. I don't think they were trying to get rid of me or any- thing, because I was up for a better position during that time.

50
47

Mr. MARTINEZ. But in your mind, you actually felt that they

really believed that you were a marijuana user? Ms. Josxs. At the time, I really felt they really believed that. I

really do. Yea, because I was getting along with my employees and my supervisor, and we were always getting along, and you know, I

just felt that there was a mistake made, and I felt like I have to

fight to clear this :nistake, you know, to get this label off of me. Mr. MARTINEZ. Have you felt that this kind of a blemish on your record will impair you m the future if somebody should look at it and not really investigate the final disposition of it? Has it in any

other way affected you? Well, it did affect you in your promotion. Ms. Josics. Sure, it did.

Mr. MARTINEZ. You didn't get your promotion. Ms. Joss& I didn't get it. I haven't gotten it yet. Mr. MARTrtna. Is there anything else you would like to add at

this time?

Ms. JONES. Other than that I was happy to get my job back and I was happy to see my children.

Mr. MARTINEZ. VThat is the attitude there now, Ms. Jones?

Ms. JONES. They're treating me better than ever for some reason or other. They're treating me better than ever. [Laughter.]

Mr. MARTINEZ. I think that's wise of them.

Ms. Joins. Other than they just won't give me my job that I had

put in for before I left.

Mr. MARTINEZ. Oh.

Ms. Joins. They haven't given me that. I don't know why. Sometimes they say it's because of the test. I don't know what it is.

Mr. SCHUMER. Mr. Chairman.

Mr. MARTINEZ. Yes, Mr. Schumer?

Mr. SCHUMER. Mr. Chairman, I just thought it was noteworthy, and I would ask consent maybe that you could read into the record

the comments, the work performance rating that Ms. Jones re- ceived before she was fired: the amount of work, always above par; completion of work on schedule, above standard quality; accuracy, superior; neatness of work product, done in a manner rarely exhibited; thoroughness, has always exceeded job requirements. In other words, Ms. Jones before this random test, this test that

showed incorrectly that she was using marijuana, had an exemplary work record, but it didn't even matter. Ms. Joins. No.

Mr. Sonoma. They just fired her. Ms. JosEs. That's right. Mr. SCHUMER. I don't want to ask questions, but I thought we

should read this, if we could read her performance ratings into the

record, it would be helpful.

Mr. MARTINEZ. Is there any objection?

[No response.]

MArrisizz. No. We will do that.

I didn't mean to get into questioning period at this time either. We usually hear the whole panel and then take questions, but it

just struck me that here is a situation where a person personally

has been affected by random testing and a bad decision being made as a result of that.

I understand there were others tested that were let go, too?

51
48

Ms. Joins. There were others tested at that particular time, too.

Mr. MARTI:Nu. Were they let go? Ma. Jones. Quite a few.

Mr. Mixtures. What did they do? Ms. Joins. Just did the same thing I did.

Mr. Mammas. Have any of them been rehired? Ms. Jogs. Oh, sure. The majority of them are back at work, those that wanted to come back. I came back because I love my

children. That's why I came back. Otherwise, I wouldn't have gone back either. [Laughter.]

Mr. MARTINZZ. I can imagine someone would be so indignant that a company would do something like that that they wouldn't want to come back to work.

Ms. Jonas. Right.

Mr. MIARTINEZ. Let's get on with the rest of the panel, and then

we will come back. Other members of the panel will probably want

to ask some questions.

Our next witness is Dr. Joseph Mule. But first, Mr. So ley, did you want to say something? Did you

have some remarks to make?

Mr. Som. I asked to make a brief statement on the statute of

the law. That would be up to you, Mr. Chairman. Mr. MARTuaz. All right. Why don't we have that right now, then.

Mr. SOUCY. Thank you, Mr. Chairman, and members of the

House Education and Labor Subcommittee on Employment Opportunities. I have been asked to make a brief statement on the status

of the law of drug testing in the United States, and I will try to do

so very briefly.

Essentially, the law is on two tracks in the United States. There

is one set of rules for private employers, and there is another set

for public employers. Private employees essentially do not have the protections of the Constitution; in essence, they have what rights

they get in their collective bargaining agreement or they get the

rights that they have in their contracts with their employer. In the cases of California and Montana, there are state constitutional protections which the employees has as to invasion of priva- cy, and California has interpreted their State constitutional inva- sion-of-privacy provision to apply to drug tests. But otherwise, an

employee has nothing unless it is in their collective bargaining

agreement.

The Federal system is very different in that Federal employees do have the protections of the Fourth and Fifth Amendments: the Fourth Amendment in that a test has been considered by every cir- cuit court in the country that has ruled on the issue has been ruled

to be a search and seizure pursuant to the Fourth Amendment; and

there are also Fifth Amendment protections of fairness which employees do receive.

None of these protections apply to private employees, strictly to Government employees.

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49

The case law on drug testing in the Federal sector has been very

mixed. Each circuit that has ruled on this issue has come -ap with a new decision, completely different from all the other circuits. The

Fifth Circuit has allowed random drug testing for Customs employ- ees, for example, finding that Customs employees are in the fore- front of the war against drugs and that they are susceptible to blackmail and have to carry arms, and there are other factors which are especially involved where the Fifth Circuit found that

these people should be tested. The Supreme Court has granted certiorari in that case, and that will be argued to the Supreme Court soon. So, hopefully, we will

have some national law in the area.

In the case of Juanita Jones, the District of Columbia Circuit

ruled that drug testing would be allowed on school bus attendants, especially in Ms. Jones' case, but only where three requirements

are met:

One, the drug test has to be administered as part of a medical examination; two, the person tested has to be a person whose job

involves some type of safety; and the third requirement is there must be a nexusthe drug test must be a test which is related, where there is a nexus to a legitimate aim of the Government. In the case of Juanita Jones, the court said the drug test must

test for present impairment of drugs; in other words, drug use on

the job. And to the best of my knowledge, and as the Ninth Circuit in the Burnley case has already stated, there is no urinalysis test

to date which does test for present impairment.

The Ninth Circuit, in a California case, has also determined that

railroad employers cannot test railroad employees for drugs in the

Absence of individualized suspicion to believe that railroad employees are using drugs.

The Eighth Circuit has allowed random testing of prison guards

if those prison guards have day-to-day contact with prison inmates

in medium and maximum security institutions and said that there must be individualized suspicion to suspect that the prison guard

uses drugs before testing any other prison guard.

The Third Circuit, in a very different decision than the other cir- cuits, has ruled that racinghorse jockeys can be randomly tested

for drugs.

So, there are Federal protections which are in place. The courts, each circuit has a different test, different standards for who should,

for how to define these Federal protections. But they are in place

in the Federal system today. The Supreme Court will, hopefully, review these protections in a Ater case. But these protections definitely do not apply to private employers, which are the subject of your bill today.

Mr. MARTIN-22. Thank you, Mr. Soley.

Mr. Mule.

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50

STATEMENT OF S. JOSEPH MULE, DIRECTOR, NEW YORK STATE

DIVISION OF SUBSTANCE ABUSE SERVICES TESTING AND RESEARCH LABORATORY

Mr. Mutt. Mr. Chairman, members of the committee, in the interest of time, I will emphasize the important aspects of my testi- mony this morning.

I would like to address and perhaps clarify the issue of accuracy; that is, the reliability of drug testing. The laboratory ofwhich I am

director has processed more than five million urine samples over

the last 18 years. We have never, to my knowledge, lost a challenge

to one of our confirmed tests on the basis of the accuracy of the tests themselves.

Basically, the reliability of urinalysis may be viewed in terms of 13 separate and distinct functions. Based on my own research, my

ergrience particularly in forensic toxicology, these are:

*rst, the request for the drug analysis: This should be initiated

by the drug detection program's physician or designate of this phy- sician or an individual's personal physician.

The second is the urine specimen Jollection: The integrity of the

sample is essential. The sample should be collected under observation, sealed with evidence tape, properly identified, and a chain-ofcustody document with authorized signature, time, and date pre- pared.

The third is the chain of custody: In order to have forensically

acceptable results which are legally defensible, the laboratory must have an effective chain-of-custody protocol in place which is well

documented and fully implemented. Once a sample is received and signed for at the laboratory, a continuing chain-of-custody proce- dure should account for it at all times. This assures that the identity and integrity of the sample cannot be compromised.

Laboratory security: Access to the laboratory or the drug testing

areas must be secured and limited to authorized personnel. A log must be maintained of all individuals that access that area and unauthorized individuals must be escorted by authorized personnel. Fifth, sample identification: The laboratory must have an identification nrocedure which minimizes or eliminates the possibility of mixing samples, transposing of samples, or the misidentification of

samples. Computerization and duplicate samples are recommended.

Standard operating procedures, SC P: The laboratory should uti- lize an SOP for processing the test sample which is scientifically

and legally defensible. The SOP should be consistent with test

product labeling and/or the published literature. The laboratory

should have not only initial screening testing procedures, but also procedures governing confirmatory tests, and both should clearly

indicate the level of sensitivity for all drugs tested. Seven, a laboratory manual: One which clearly defines all the

techniques and all the procedures concerning the drug testing proc- ess must be available and current at all times.

Eight, product reliability: There may be differences in the reli- ability of results obtained from different testing products. The laboratory must be cognizant of these differences and their implications must be adjusted for. The major ways in which products differ are

54
51

the precision and accuracy, the specificity, and the sensitivity

that is, the limit of detection.

However, as mentioned earlier, both screening and confirmation

testing products are available which, when used properly in combi- nation, are essentially conclusive and are completely defensible both scientifically and in court. Personnel qualifications: The competence of the staff performing

the tests obviously impacts on the quality of the results. This is es- sentially true with methods that require a high degree of technical competence or when products are prone to user variation. Thus, the laboratory and all laboratory staff directly involved in these

tests must be certified by either city, State, Federal, or professional

societies.

Ten, quality assurance and quality control: Internal quality control programs must consist of both known and blind drug stand- ards. Ideally, this should be supplemented with an external profi- ciency p'gram conducted by either State, Federal, or professional orgunizatwns, which may be conducted in a blind and/or open manner. In additif n, there should day-to-day auditing and verification of all drug testing functions. Analytical procedures: Currently, the primary screening tech- niques that are used today are the enzyme immunoassay, the EIA, essentially the emit system; the radioimmune assay, RIA; fluores- cence immunoassay, FPIA that is both fluore', :ence polar immunoassay; and thin-layer chromatography, TLC. Methoris commonly used for confirmation of presumptively positive results are gas liquid chromatography, GLC; high-performance

liquid chromatography, HPLC; gas chromatography coupled with mass spectroscopy, GCMS; and special solid-phase extraction thinlayer chromatography Confirmation must be used for all presumptively positive sam- ples obtained through the employee screening processthat is, workplace testingwhere a job may be gained or lost based on the

test result.

In addition, security, safety, career advancement, or punishment

implications require confirmation of all screening test results. Twelve, specimen retention: Urine samples positive for drugs must be retained in a pure freezer for at least six months, normally, six months to a year, in order to allow retesting of the sample

should a legal challenge be made. The report: The laboratory director or technical supervisor must certify all testing results reported. The report should be secured

and the results submitted to a physician and/or his designate or a medical review officer.

In summary, then, drug abuse testing, which has grown dramati- cally primarily because of the expansion of private and public

sector concerns with safety and security, as urinalysis becomes more widespread, the need for careful collection a"d laboratory

controls increase. Each organization involved in the drug abuse

testing must develop a policy that is clearly communicated to all concerned and is sensitive to constitutional issues.

The reliability of drug testing involves many factors such as

those I have indicatedchain of custody, sample identification, standard procedures, gut:-: :tied personnel, quality assurance, quality

55
52

control, documentation, and reports. The screening methods primarily used today are EIA, P..IA, FPIA, and TLC. Confirmation is

generally some form of chromatographic technique: HPLC, GLC, GCMS. And there are newer methods becoming available such as

GC, IR, MS, and MS in tandem MS.

Confirmation of results is required where a job, career, security, safety, or punishment is affect/A by the test result. In conclusion, then, I would like to state that utilizing both

screening and confirmation methodsand the confirmation method

and technique must be chemically and physically different than

the screening technique for all the drugs tested which takes into

consideration the factors that I have discussed constitute the reliability of testing, and essentially one may expect 100 percent accuracy. . I would be happy to respond to any questions.

[The prepared statement of S. Joseph Mule follows:]

56
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'7!

TESTIMONY OF

S. JOSEPH MULE', Ph.D., DABFT, FAIC

DIRECTOR

DSAS TESTING AND RESEARCH LABORATORY

BROOKLYN, NEW YORK 11217

and

PROFESSOR OF PSYCHIATRY

S.U.N.Y. HEALTH SCIENCE CENTER AT BROOKLYN

BROOKLYN, NEW YORK 11203

BEFORE THE SUBCOMMITTEE ON EMPLOYMENT OPPORTUNITIES

COMMITTEE ON EDUCATION AND LABOR

U.S. HOUSE OF REPRESENTATIVES

April 2i. 1988
54

Mr. Chairman, thank you for the opportunity to testify

before the subcommittee this morning. Urinalysis for drugs of

abuse is an area currently receiving significant public

attention and high visibility. Today, one cannot pick up a

newspaper or journal without sgeing several ar*icles on the

drug testing issue. In addition, there is continuous

television coverage on the subject of drug abuse. The use of

drugs is now a tatter of serious concern to industry,

government (federal, state, local), education, military, public

transportation, athletics, national security, public safety and

the general public at large.

The implications of drug use are tragic at a personal

level, and impact on the business community, the economy and

the security of the United States. It has been estimated that

substance abuse costs American industry alone billions of

dollars a year.

The expanded use of urinalysis for drugs of abuse as an

effective tool to dett.A and deter drug use has resulted in

controversy and concern in both the public and private

sectors. Among the key issues is the question of the

RELIABILITY OF DRUG TESTING.

While constitutionally based legal issues and the necessity

for a rationally developed and clearly articulated

organizational policy are key components of the ongoing public

debate over drug testing, it is not my purpose to focus on

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55

-z- these questions. Instead, I would like to address and perhaps

clarify a third source of controversy: the reliability of drug

testing.

Obviously, profound implications flow from incorrect test

results. The implications of false positives (unconfirmed

positives) are clear, especially where a job, career,

reputation or treatment credibility is at stake. False

negatives occur and are mostly due to the sensitivity or "cut

off" level of the method employed. Such a failure to identify

drug abuse may be serious in relation to safety or security

issues. Thus it is crucial to understand the degree of

accuracy obtainable through urinalysis and the factors which

affect that accuracy.

Modern urinalysis drug screening and confirmation tests are

extremely sensitive and sophisticate.;. They are subjected to

extensive trials and government approval beforc being br-ught

to market, and thus have been proven in practice. Appropriate

commonly used screening tests, coupled with confirmatory tests,

where called for, yield essentially a 100 percent confidence

level from a purely technical standpoint. In my mind, accuracy

of such a testing system itself is no longer an issue.

The laboratory of which I am Director has processed more

than five million samples over the last 18 years, and we have

never lost a challenge to one of our confirmed tests on the

basis of the accuracy of the tests themselves.

This is not to say that uncertainty never arises in the

broader process of sample collection and testing This process

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56

-3-

is a complex one, and there are a number of considerations we

must look at to make sure that errors are not introduced at the

various stages of progress and to give us confide. that a

given result accurately reflects the true analyte (drug) level

of a specific person at a specific time.

Basically, the reliability of urinalysis may be viewed in

terms of thirteen separate and distinct functions. Based on my

research and my experience, particularly in forensic

toxicology, these are:

1. REQUEST FOR THE DRUG ANALYSIS

Initiated by the drug detection program physician, a designate

or an individuil's personal physician.

2. URINE SPECIMEN COLLECTION

The integrity of the sample is essential. The sample should be

collected under observation, sealed with evidence tape,

properly identified and a chain of custody document with

authorized signature, time and date prepared.

3. CHAIN OF CUSTODY

In order to have forensically acceptable results which are

legally defensible, a laboratory must have an effective chain

of custody protocol in place, which is well documented and

fully implemented. Once a sample is received and signed for at

the laboratory, a continuing chain of custody procedure should

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57

-4-

account for it at all times. This assures that the identity

and integrity of the sample cannot be compromised.

4. LABORATORY SECURITY

Access to the laboratory or the drug testing area must be

secured and limited to authorized personnel. A log must be

maintained of all individuals that access the area, and

unauthorized individuals must be escorted by authorized

personnel.

5. SAMPLE IDENTIFICATION

The laboratory must have an identification procedure which

minimizes or eliminates the possibility of mixing samples,

transposing of samples or the misidentificati^n of samples.

Computer accession and duplicate samples are recommended.

6. STANDARD OPERATING PRCCEDURES (SOP)

The laboratory should utilize a SOP for processing the test

samples which is scientifically and legally defensible. The

SOP should be consistent with test product labeling and/or the

published literature. The laboratory should have not only

initial screening testing procedures, but also procedures

governing confirmatory tests, and both should clearly indicate

the level of sensitivity for all drugs tested.

t r .`. 61
58

-5-- 7. LABORATORY MANUAL

A manual which clearly defines all techniques and procedures

concerning the drug testing process must be available and

current.

8. PRODUCT RELIABILITY

There may be differences in the reliability of results obtained

from different testing products. The laboratory must be

cognizant of these differences and their implications and must

adjust for them. The major ways in which products differ are:

a) Precision and accuracy;

b) Specificity, and

c) Sensitivity (LOD).

However, as mentioned earlier, both screening and confirmation

testing products are available which, when used properly in

combination, are conclusive and are completely defensible, both

scientifically and in court.

9. PERSONNEL QUALIFICATIONS

The competence of the staff performing the tests obviously

impact. on the quality of the results. This is especially true

with methods that require a high degree of technical competence

or when products are prone to user variation. Thus, the

laboratory and all laboratory stafc directly involved in these

tests must be certified by either city, state, federal or

professional societies.

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59

-6-

10. QUALITY ASSURANCE/QUALITY CONTROL

Internal quality control programs must consist of both known

and blind drug stanf-tds. Ideally, this should be supplemented

wish an external proficiency program conducted by either state,

federal ar professional organizations which may be conducted in

a blind and/or open manner. In addition, there should be

day-to-day auditing and verification of all drug testing

functions.

11. ANALYTICAL PROCEDURES

Currently, the primary screening techniques used are: enzyme

immunoassay (EIP); radioimmunoassay (RIA) fluorescence

immunoassay (FPIA) and thin-layer chromatography (TLC).

Methods commonly used for confirmation of presumptively

positive results are: gas-liquid chromatography (GLC); high

performance liquid chromatography (HPLC); gas-chromatography

coupled with mass spectroscopy (GC/MS), and special solid phase

extraction thin layer chromatography methods. Confirmation

must be used for all presumptively positive samples obtained

through the employee screening process (workplace testing)

where a job may be gained or lost based upon the test results.

In addition, security, safety, career advancement or punishment

implications require confirmation of all screening test results.

12. SPECIMEN RETENTION

Urine samples positive for drugs must be retained in a secure

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60

-7-

freezer for at least 6 months in order to allow retesting of

the sample should a legal challenge be made.

13. REPORT

The laboratory director or technical supervisor must Irtify

all testing results reported. The report should be secu ed and

results submitted to a physician or his designate and/or

medical review officer.

SUMMARY

Drug abuse testing has grown dramatically, primarily

because of the expansion of private and public sector concerns

with safety and security. As urinalysis testing becomes more

widespread, the need for careful collection and laboratory

controls increases. Each organization involved in drug abuse

testing must develop a policy that is clearly communicated to

all concerned and is sensitive to constitutional rights. The

reliability of drug testing involves many factors such as:

chain of custody, sample identification, standard procedures,

product reliability, qualified personnel, quality assurance,

quality control, documentation and reports. Currently, the

screening methods for urinalysis involve EIA, RIA, FPIA, TLC

and confirmation involves various (gas liquid, high performance

liquid) chromatographic techniques alone or coupled with

mass-spectroscopy. Confirmation of results is required where a

job, career, security, safety or punishment is affected by the

test result.

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61

-8-

CONCLUSION

Utilizing both screening and confirmation methods for all

the drugs testzd as well as the factors I have discussed that

constitute reliability of testing, one may expect essentially

100 percent accuracy.

I would be happy to respond to any questions the

subcommittee may have.

.;
62

Mr. MARTINEZ. Thank you, Mr. Mule.

Let me interrupt am; ask the panel, do you think it might be a

good idea before we go into Mr. Mc Bay's testimony, rather than interrupt his testimony, to leave and make the vote on the roll and

then come back?

We will take another short recess.

[Recess.]

Mr. MAttruiaz. How is this for cooperation? We all got back to- gether. [Laughter.]

Okay. We will resume.

We had finished off with Mr. Mule's testimony, and we will now

go to Mr. Mc Bay.

STATEMENT OF ARTHUR McBAY, CHIEF TOXICOLOGIST, OFFICE

OF THE CHIEF MEDICAL EXAMINER, STATE OF NORTH CAROLINA

Mr. McBAY. Mr. Chairman, and members of the committee, I am

going to try to address the topic of cost-effective forensic quality

drug testing.

Quality random drug testing and needs the controls of H.R. 691, the Employees Drug Testing Protection Act, and also those of the HHS guidelines. Urine and blood can be tested accurately and

properly for drugs or abuse. The results can be of value when inter- preted properly. Blood testing, which is much more expensive and

is available in fewer laboratories, is more temporal and can reveal more information than urine testing can. The findings of a drug in urine means that the person has ingest- ed the drug at some time, if no mistake is made in the testing pro- cedure from the time the urine is voided until the results are inter- preted.

The impossibility of correlating blood or urine drug concentrations with driving impairment has been reported in a consensus

report.

The 1984 survey has been repeatedly cited as evidence of the economic cost to society of drug abuse and of the need for testing workers. The economic cost to society in 1983 was estimated to be

about $116 billion for alcohol abuse and $60 billion for other drug

abuse.

The costs cited for drug abuse are greatly exaggerated, and my

reference there is to some of my reasons, and it's given in the paper. I estimate the cost of other drug abuse at less than 10 per- cent that of alcohol abuse.

Limited testing, especially marijuana use, that was performed for

the military service from 1983 to 1985 was reported to have cost about $175 million a year. During the three-year period, 51,000 Service personnel were discharged at an average cost of about $22,000 to replace each person discharged.

Using these estimates, the total program cost about $1.5 billion

for the three years. I have been unable to get any other figures, but I have tried. It costs about $200 to test a urine specimen of an NCAA athlete. I have been unable to fmd any other estimates of

the cost to the Government or private sector testing programs. I have seen no evidence that any of the urine testing prop ams have

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63

had a beneficial effect on the health, safety, or productivity of the Armed Services or any other group tested. Transportation accidents fatalities have been blamed on drugs, but in most cases the only drug found has been alcohol. The proba- ble cause of the recent crash of an Amtrak passenger train into the

rear of a train of three Conrail locomotives was reported to be due

to the failure as a result of impairment from marijuana of the Conrail engineer to stop his train. His train was stopped. The engineer

tried to stop when he saw a red signal, and eventually he succeed- ed. The other train ran into him.

The drug testing was flawed. The s en was retained about 5,

8, and 90 hours late. Since neither TICor alcohol was found in the

blood of the engineer, the finding of impaired at the time of the

accident from the effects of marijuana possibly with the combined

effects of alcohol the night before the accident is not scientifically

supportable. The fact that none was found meant that probably he might have used it the night before based upon other information

given. This train crash and many others should not have occurred if tb.i signals were operating properly and the Conrail locomotives had been equipped with the automatic train control systems that ha'e been available since 1978 and was recommended for all trains

using the heavily scheduled and high-speed northeast corridor. Two commercial airplane pilots who were impaired by alcohol were discharged, one, who was assisted into the cockpit by two

crew members tested "positive for alcohol" at the end of the flight. The other had a 0.13 percent alcohol in his blood at the end of the

flight. Both were allowed to be reinstated after rehabilitation. Breath testing for alcohol could have prevented these pilots from

flying impaired.

Random testing does not reveal those who might occasionally use a drug, nor does it prevent a person from using a drug after being

tested. Daily testing would be needed to accomplish this. Testing

immediately before starting a safety-related test might ensure that

the person not tmed drugs for which, properly conducted analy- ses were made. But this is expensive and logistically impossible

except for the one drug that has been related to most crashes and

performance impairment: alcohol. Alcohol testing can be noninvasive, inexpensive, and accurate. Breath can be tested with minimal training. Results are immedi- ately available and interpretable, and inexpensive instruments can

provide tests for less than a dollar each. Certification of drug testing laboratories about to start should

improve the programs, but it will not guarantee that the results of

inadequate tests won't be reported and interpreted improperly. Unless urine specimens are obtained from subjects taking drugs are used in proficiency testing programs or performance testing programs, the ability of laboratories to correctly analyze actual specimens will not be tested. Laboratories are reporting the identi- fication and quantitation of drugs at concentrations lower than

those for which they have demonstrated capability of identifying

and quantitating. The private employer is not required to obtain a confirmatory

test or to use a certified laboratory. At the present time, I know of

6'7
64

no laboratory doing workplace drug testing that I could confidently

recommend for urine or blood testing for a wide variety of drugs that are available to the employed and the unemployed, not just the four or five that are mentioned in the bill. I am talking about drugs that could affect their performance certainly: antihistamines and a whole host of drugs that aren't even looked for. Most of the workers whose urines are tested have no signs, symptoms, or other evidence of drug use or impairment. Decisions are based on the results of one specimen obtained, controlled, tested, and preserved for the employer.

Testing prograins should require that the original specimen be split into duplicate specimens, one specimen being sent to the labo- ratory by the employer; the other specimen should be labeled, sealed, and preserved by freezing, if necessary. When the first spec- imen tests positive and the worker challenges the result, the

second specimen could be divided equally into two containers, one being given to the employer, the other to the employee or his representative. Both the employer and employee could have the speci- men tested independently by qualified analysts. This procedure could solve many of the problems that arise from testing a single specimen such as chain of custody, mislabe

specimen switching, contamination, carryover, instrumental, nician, and reporting errors. If it could be proven that drugs other than alcohol responsible for adversely affecting health, safety, and performance of a signifi- cant number of workers and that drug testing could prevent or solve such a problem, then the use of testing programs should be weighed against the infringement upon the personal rights of the worker.

I know of no plan to test those most likely to be using drugs: the unemployed. In my opinion, that random drug testing is a waste of time and money, is counterproductive, and can create a false sense of security.

I would like also to address a couple of comments on the mandatory guidelines for the Federal testing, workplace drug testing pro- grams. The Federal Register just came out April 11. I didn't get it until last Thursday. So, I would like to add this to it. The guideline offers questionable excuses for not requiring a split r -oimen. It is a cumbersome and expensive process and requires "'retention of one specimen for an indefinite period of time in some

type of secured, long-term refrigerated storage." Well, negative and unchallenged positives could be discarded immediately. Challenged positives should be retested immediately by both parties. I don't think this is cumbersome or requires expensive

special storage. This system has been used for Olympic and other athletes for some time.

The "guidelines specifically reject allowing the employee or anyone else from presenting to the medical review officer a split sample or private sample that does not fully comply with these guidelines.' In other words, the employee cannot even offer any evidence in any sense if he's innocentor guilty, for that matter. The guidelines specifically specify confirmation usinv gas chro- mat aphy, mass spectrometry techniques, GCMS, but does not

spec which techniques. The Armed Services and most commer68
65

cial laboratories use the more expedient, more profitable, less certain identification by GCMS techniques which monitor out. or more

mass ions rather than the forensic identification available using

full mass spectrum.

There would be no need for a large number of performance and

quality control specimens if a full spectrum GC mass spec tech- nique was wed.

The ion monitoring methods may be good enough to test the

urines of members of the Armed Service, preemployees, and employees and others in the private sector who, in my opinion, have very limited rights. This is not the best way to identify drugs. Gov- ernment and other employees are supposed to have more rights

than the above employees.

I believe tnat drug problems are serious enough so that drug

testing should be viewed very seriously.

The guidelines appear to justify greater protection to chcrged

criminals. "The legal LI cerest at issue in the criminal justice

system, including liberty, private property interests, are different

and, therefore, are subject to established practices, constitutional

protections, and evidentiary rules specific to the criminal justice

system."

Does this mean that criminals and potential criminals have more

rights and deserve greater protection than noncriminals?

One last comment. a testified in the WMATA cases in Washington, at least three of them, and nit only was the EMIT the only

test used, it was tne only test used because that's a',1 that WMATA would pay for. Second, the tests weren't even used properly. They were not done according to the manufacturer's directions. They would not have stood up. And of course, the confirmation by the

same test only means that you are finding the same substances

interferk.; or causing the test.

Thank you.

[The prepared statement of Arthur J. Mcl3ay follows:]

6 5
66

STATEMENT BY

Arthur J. McBay, Ph.D.

Chief Toxicologist

Office of the Chief Medical Examiner

and

Professor of Pathology and Pharmacy

University of North Carolina

Chapel Hill

BEFORE

Committee on Education and Labor

Subcommittee on Employment Opportunities

April 21, 1988

9:30 a.m.

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Cost-Effective, Forensic Quality Drug Testing

The quality of random drug testing is variable and needs the controls of

N.R. 691, The Employees Drug Testing Protection Act.

Urine and blood can be tested properly and accurately for drugs of abuse.

The results can be of value when interpreted properly. Blood testing which is

more expensive and is available in fewer laboratories is sore temporal and can

reveal more information than urine testing. The finding of a drug in urine

means that the person has ingested the drug at some time if no mistake is made

in the testing procedure from the time the urine is voided until the results

are interpreted. The impossibility of correlating blood or urine drug

concentrations with driving impairment has been reported in a consensus panel

report (1).

A 1984 survey has been repeatedly cited as evidence of the economic cost

to society of drug abuse and of the need for testing workers (2). The

economic cost to society in 1983 was estimated to be about $116 billion for

alcohol abuse and $60 billion for other drug abuse. The costs cited for drug

abuse are greatly overexaggerated (3). I estimate the cost of other drug

abuse at less than 101 that of alcohol abuse. Limited testing, principally for marijuana use, that was performed by the

military services from 1983 to 1955 was reported to have cost about $175

million per year (4). During the three year period 51,000 service personnel

were discharged at an average cost of about 822.000 to replace each Person

discharged (5). Using these estimates the total program costs about $1.5

billion for the three years. It costs about $200 to test a urine specimen of

an NCAA athlete (6). I have been unable to find any other estimates of the

costs of other government or of private sector testing programs. I have been

unable to find any evidence that any of the urine testing programs have had a

beneficial effect on the health, safety, or productivity of the armed services

or any other group tested.

Transportation accidents and fatalities have been blamed on drugs but in

most cases the only drug found has been alcohol. The probable cause of the

recent crash of an Amtrak passenger train into the rear of a train of.three

Conrail locomotives was reported to be due to the failure, as a result of

imprirment from marijuana, of the Conrail engineer to stop his train (7). The

engineer tried to stop when he saw the red signal. The drug testing was

flawed. Specimens were obtained about 5, 8, and 90 hours late. Since neither

THC or alcohol was found in the blood of the engineer, the finding of

"impaired at the time of the accident from the effects of marijuana possibly

combined with the effects of alcohol the night before the accident", is not scientifically supportable (1). This train crash and many others should not

have cm -rred if the signals were operating properly and the Conrail

locomotives had been equipped with the automatic train control (ATC) system

that had been available since 1978 and was recommended for all trains using

the heavily scheduled and high speed Northeast Corridor.

Two commercial airline pilots who were impaired by alcohol were

discharged. One who was assisted into the cockpit tn two crew members,

"tested positive for alcohol" at the end of th:d flight (8a). The other had

0.13t alcohol in his blood at the end of the flight (8b). Both were allowed

to be reinstated after rehabilitation. Breath testing for alcohol could have

prevented these pilots from flying impaired.

Random testing does not reveal those who might occasionally use a drug nor

does it prevent a person from using a drug after being tested. Daily testing

would be needed to accomplish this. Testing immediately before starting a

safety related task might insure that the person has not used the drugs for

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which properly conducted analyses were made but this is expensive and

logistically impossible except for the one drug that has been related to most

crashes and performance impairment, alcohol. Alcohol testing can be

noninvasive, inexpensive, and accurate. Breath can be tested with minimal training, results are immediately available and interpretable, and inexpensive

instruments can provide tests at less than $1 each.

Certification of drug testing laboratories which is about to start, should

improve the programs but it will not guarantee that the results of inadequate

tests won't be reported and interpreted improperly. Unless urine specimens

are obtained from subjects taking drugs are used in proficiency testing

programs, the ability of laboratories to correctly analyze actual specimens

will not be tested. Laboratories are reporting the identification and

quantitation of drugs at concentrations lower than those for which they have

demonstrated capability of identifying and quantitating A private employer

is not required to obtain a confirmatory test or to use a certified

laboratory. At the present time I know of no laboratory doing workplace drug

testing that I could unconditionally recommend for urine or blood testing for

the wide variety of drugs that are available to the employed and unemployed.

Most of the workers whose urines are tested have no signs, symptoms or

other evidence of drug use or impairment. Decisions are based on the results

of tests on one specimen obtained, controlled, tested, and preserved for the

employer. Testing programs should require that the original specimen be split

into duplicate specimens. One specimen could be sent to the laboratory by the

employer. The other specimen should be labelled, sealed and preserved by

f vexing, if necessary. When the first seecimen tests positive and the worker

challenges the results, the second specimen could be divided equally into two

containers, one being given to the employer, the other to the employee or his

representative. Both the employer and employee could have aliquots of the

specimen tested independently by qualified analysts. This procedure could

solve many of the problems that arise from testing a single specimen, such as:

chain of custody, mislabelling, specimen switching, contamination, carryover,

instrumental, technician and reporting errors.

If it could be proven that drugs other than alcohol were responsible for

adversely atfecting health, safety, and performance of a significant number of

workers, and that drug testing could prevent or solve such a problem, then the

use of testing programs should be weighed against the infringement upon the

personal rights of the worker. I know of no plans to test those most likely

to be using drugs, the unemployed.

It is my opinion that random drug testing is a waste of time and money, is

counterproductive, and can create a false sense of security.

References: 1. Blanks RV et al., J.Am.Med.Assoc. 254: 2618-2621, Nov 8, 1985.

2. Harwood NJ et al., Research Triangle Inst. 1986.

3. McBay AJ, Hudson P., J. Forensic Sciences 32: 575-579, 1987.

4. Mayer W., Asst. Defense Seer. Assoc. Press, Aug. 6, 1986.

5. Stoloff PH., Center for Naval Analyses 111, Aug. 1985.

6. Amtrak-Conrail Crash, 1/4/87. NTSB/RAR-88/01, Jan. 25,1988.

7. Hanley DF., NcAA National Drug Policy Comm. Apr. 8, 1988.

8. Employee Testing and rie Law, a) 2:6, 11/87, b) 3:6, 2/88.

The opinions expressed are those of the author:

Arthur J. Miley. Ph. D. Chien luicologist, Office of the Chief Medical

Examiner and Professor of Pathology and Pharmacy, Univ. of North Carolina,

Chapel Hill, NC 27514.

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I would like to make some consents concerning the "Mandatory Guidelines for

Federal Workplace Drug Testing Programs'which appeared in the Federal Register

on April 11, 1988, and will govern testing authorized in this bill.

The Guidelines offer questionable excuses for not requiring a split

specimen: It is a "cumbersome and e' ,_,rsivr process" and requires "retention of one

(specimen) for an indefir, e period of time in some type of secured long term

refrigerated storage." Negative and unchallenged positives could be discarded

immediately. Challenged positives should be retested ionediately by both

parties. Is this cumbersome and expensive or require special storage? This

system has been used for Olympic and other athletes for some time. The

"Guidelines specifically reject allowing the employee or anyone else from

presenting to the Medical Review Officer a split sample or private sample that

does not fully comply with these Guidelines." How does an innocent employee

defend himself?

The Guidelines specify confirmation "using gas chromatography/mass

spectrometry (GC/MS) techniques" but does not specify which techniques. The

armed services and most commercial laboratories use the more expedient, more

profitable, less certain identification by GC /M8 techniques which monitor one

or more mass ions rather than the forensic identification available using full

mass spectra. There would be no need for the large number of performance and

quality control specimens if a full spectrum GC/MS technique was used. The

ion monitoring methods may be good enough to test the urines of members of the

armed services, pre-employees and employees, and others in the private sector

who in my opinion have limited rights. This is not the best way to identify

drugs. Government and other employees arc supposed to have more rights than

the above employees. I believe that drug problems are serious enough so that

drug testing should be viewed very seriously.

The Guidelines appear to justify greater protection to charged criminals.

"The legal interests at issue in the criminal justice system including

liberty, privacy, and property interests are different and, therefore are

subject to Established practices, constitutional protections and evidentiary

rules specific to the criminal justice system': Does this mean that criminals

and potential criminals have more rights and deserve greater protection than

non-criminals?

Arthur J. NcBay, Ph.D.

Forensic Toxicologist

April 20, 1988.

Chapel Hill, NC 27514

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Mr. MARTINEZ. Thank you, Dr. Mc Bay. Both your and Dr. Mule's testimony conjure up a couple of

thoughts in my mind, the first being that by Dr. Mule's testimony

that there is reliability in the test but only under laboratory conditions. I am wondering if in every case tests are given in the most

ideal of conditions.

Would you be able to testify to the fact that all these tests that

are done randomly on these employees are done in the best of laboratory conditions? Mr. Mull. I think that is probably the purpose of the national

certification program that Dr. Mc Bay mentioned; that is, to bring a

large measure of control to a system that may not be fully controlled.

I can only speak for the State of New York and for my own particular laboratory, which has been under regulation since 1970. The State of New York has always had regulations for the drug testing process. The earlier regulations were for qualitative drug analysis or quantitative. The new regulations, which came in July 1, 1987, are forensic toxicology. They are very strict and they are very

tough, and it is controlled by the New York State Health Depart- ment. So that we in fact have to comply with in order to be li- censed by.

This is not necessarily the case, as you heard, throughout the United States. However, the national laboratory certification pro- gram has been designed to try to bring a great and large measure of control to the reliability of the whole process.

Mr. MARTINEZ. Am I right to assume that you have complete

confidence in the testing that is done in the laboratory under laboratory conditions and under regulations?

Mr. Mull. Well, it adds, of course, a large measure of confidence

to all concerned. That is not to say that at some point an error cannot be made. We are human beings.

Mr. MARTINEZ. Right.

Mr. Mull. So, there is always the possibility regardless of the measure of controls associated with the process.

Mr. MARTINEZ. Well, then let me ask a follow-up question to

that. Would you, by the same token, have less confidence in those

tests that are done outside perfect laboratory conditions? Mr. Mull. Yes. That's true.

Mr. MARTINEZ. Well, it tiien leads lie to the assumption that one of the conditions that are really important to having a reliable and

accurate testand more than that to the individuals rights is that

there be regulations and conditions existing which mandate that not a single test be done outside the most ideal of conditions and

this be the only condition by which a person would be denied his employability or rejected from a job. Mr. Mull. I think it's critical, and this is mandated in i,he State

of New York, with regards to workplace drug testing, we have to

confirm that particular test and we have to confirm that test by a method which is both chemically and physically different than the

initial screening test. And many of the facets that represent the process of reliability that I mentioned earlier have to be in place

and we have to comply with the State regulations.

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So, it is essentially there. The Federal guidelines are quite a bit similar along those lines as well, if not tougher essentially. Mr. MARTINEZ. The situation is, though, that without a national law that requirt.... all States to regulateas we have heard, only 21 States have any kind of i.2ation at allthere is going to be more

random testing in less than the most reliable conditions or situations.

Mr. ?ALIJA. Well, there, Mr. Chairman, you run into the legal issues. You get into the random testing. You're getting into the

constitutional issues, which is one part of the controversy of the whole drug process. There is three: the organizational policy, the

legal imues, and the reliability of ne drug testing itself. But with regards to the national certification program, that is set up and is to apply to those laboratories that wish to conduct urine

testing upon Federal employees.

Mr. MARTINEZ. Right.

Mr. Mu LE. Now, what I think will happen, in essence, is that the n-Federal employer, the private sector, will eventually utilize

those laboratories, since those laboratories have been certified by

the national program. So, that in all probability one of the require- ments that a private sector organization will have when it seeks

laboratory services is to determine that that laboratory has been

certified by the national program.

Mr. MARTINEZ. Very good. Let me give you a thought that I had as you were all te3tifying. It seems that as we listen to this testimony, one of the most important aspects of protecting an individual is confirmation. The

chances of the first test being inaccurate or inconclusive seems to be great, by reports that we have had and information that we have received. So that it becomes more and more apparent, at least to me and only if to me, that confirmation is one of the important aspects. As you have stated, there are two aspects to this, to the drug testing: One is the reliability, accuracy and accurate interpretation of the

results of the test and the proper determination of what should be done with that information: should it be instant dismissal, or should it be rehabilitation in the case of an employee, or instant rejection of employment of an applicant. The other side of the coin is the rights of the individual. Espe- cially the individual, for example in Juanita's case, who had a good

record and actually waE subject to severe damage to her reputation

and everything else simply because of random testing, inaccurate

random testing. You know, the one thing is that a false accusation as in the case of Juanita can do irreparable harm to that individual's reputation

and thereby really is invading that person's right to privacy. So, I think that you're right, there is a constitutional and moral issue here as well as a clinical kind of situation. So, I am really

concerned, as Congressman Schumer is, that what we do is to guar- antee and ensure the rights of the individual as well as protect in

those situations that there is needed protection for the employer. But more importantly, the employer must understand that in many cases his best redress is not instant dismissal or rejection of

those individuals but maybe rehabilitation.

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So, I am looking forward to something like that taking place as we proceed through this process.

There is one question that I have of both you people who are ac- tually in the area of testing, and that is if you agree that there

should be confirmation after initial testing.

Mr. McBAY. Oh, absolutely.

Mr. MULE. No question.

Mr. McBAY. There is question of that. Mr. MuLE. There's no question about that.

Mr. McBAY. Of course, the problem is that because it's a GCI have testified in cases where the GC mass spec, I could show their data would not identify it. In fact, even against the Air Force, there was no question, and the case was overturned on that basis.

In other words, there are bad GC mass spec tests. Mr. MuLE. I think Dr. Mc Bay raises an issue which needs addressing. You know, the GC mass spec is not just a magic instru- ment that magically identifies a drug molecule. There are chemical

procedures which must proceed the analysis. Dr. McBay doesn't like select ion monitoring. I know and I feel there is absolutely

nothing wrong with that. You wouldn't use one ion. We use a minimum of three to four ions.

But you not only have the select ions which you monitor for, you

also look at ion variance ratios and they have to be within a certain range. We use plus or minus 20 percent. A laboratory can use plus or minus 30 percent.

In addition to that, you have the retention time of the total ion

current of that molecule, which is also part of the identification

process. And that has to be within a certain percent deviation from

the standard reference control.

TUn finally, you will get a computer readout from the computer portion of the GC mass spec, which also tells you, in effect, what

the computer sees: 98 percent, 99 percent, 99.99 percent, and so on. But utilizing these factors, knowing how to handle the chemistry which is associated with the drug analysis, GC mass spec is a mag- nificent instrument for the identification of drugs and in this particular case the molecules of these drugs or the ion fragments. Now, Dr. McBay likes mass fragmentation pattern instead of select ion monitoring. There's nothing wrong with that, and you

can certainly utilize that. The differential factor is that if you use the mass fragmentation pattern, you don't have the sensitivity in a very low level. That is, it's oftentimes 15- to 20-fold higher with re- gards to the capability of giving you high-level sensitivity for that particular test. And that is one of the reasons why individuals have goneand we have in particular as well as other laboratoriesto

select ion monitoring.

Mr. MARTINEZ. Dr. Mule, let me ask you, you have great confi- dence in the regulations that are in place in New York. Mr. MULE. Yes. I have confidence.

Mr. MARTINEZ. Would you recommend these for the rest of the country?

Mr. MULE. Well, essentially, our regulations are quite similar to

the national certification reps. I see nothing wrong with the nation- al. I have a tendency to agree with Dr. McBay about the duplicate

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sample process. We use the duplica:e sample process in our laboratory.

That is, we take two samples at the time of analysis. One sample goes into storage, and the other sample is then put into the analy- sis process. If the first sample is detected positive through the

screening process, we will find the duplicate sample and retest

that. If that is positive, we will then move on to the confirmation

process.

In addition, Dr. Mc Bay feelsand to some degree I think he's

righthe wants the organization of the company to take a sample

and retain it. That is, at the time of collection, keep a sample, identify it as part of the split sample process; if it comes up positive and the individual wishes to challenge that particular test, that sample will be available to the individual to have it tested privately by any laboratory of his or her choosing. There is basically nothing wrong with that.

As you get involved in increasing the complexity of the process, you also get involved in increasing the possibility of error and de- creasing in some respects. But in fact you increase the cost of the

process, too.

But technically, it's a beautiful way to go. I agree totally with Dr. McBay in that regard.

Mr. MARTINEZ. Thank

Mr. McBay, you indicate that most of the abuse is by alcohol. Do

the companies test as rigidly for alcohol abuse as they do for drug

abuse?

Mr. McBAv. Well, that's the strange thing. The Armed Services do, and obviously there is no question about the Armed Services, there are probably no more alcohol problems in the Armed Services than there is in the civilian sector.

Looking at some of our studiesand of course, we're looking at people that die in crashes and everything elseit's better than 50

percent have alcohol. Therefore, you could find out that problem. But we made a special study of 600 drivers killed in single-vehi- cle crashes and did marijuana determinations and other drug determinations, and 79 percent had alcohol, 14 percent had drugs, and 79 percent of this 14 percent had alcohol also.

In other words, you could get 8 out of 10 people that were using drugs just by testing for alcohol, plus the fact that you'll get a whole host of others that are just using alcohol, in other words. And it's much less expensive.

The problem is that people want to use statistics, and they'll say

"the drug problem," and they're talking about alcohol and drugs. And that's wrong. They've got to separate them in some way, whether it's transportation accidents or whatever. TI 3y're talking

about all the transportation accidents with drugs, and then you

find out when you go through them that 9 out of 10, when you actually see the cases, had alcohol and maybe one or two had some drug.

So, it's unfair to link them together because there is no question

about alcohol as a problem.

Mr. MARTINEZ. Should companies apply alcohol abuse rules to

the testing procedures, too?

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Mr. McBAY. Well, they have different standards. You can reha- bilitate a man who abuses alcohol, and yet they'll toss somebody off

the job for marijuana, and you really can't rehabilitate a marijua- na person and tell them to stop smoking. They don't know what to do with a person who smokes marijuana other than tell them to

stop smoking. You know, it's like rehabilitating a fellow who smokes cigarettes as far as his job is concerned. His job isn't suffering because he's

smoking cigarettes. But heI hate to say it; I'm from North Caroli- nahe might develop lung cancer, some people say. I don't believe

it, obviously. [Laughter.] But, you know, how do you rehabilitate a fellow? You know, what's there to rehabilitate? In other words, you've got to stop him

from smoking. He's probably not suffering on the job. In fact, if he

stops smoking, probably his productivity will go down temporarily. You know, alcohol and other drugs, where the person becomes

tolerant and where they become alcohol problems, they do a great deal of damage, those people do require some kind of intervention

and rehabilitation.

In North Carolina, for the State employees, we have recommend- ed that we have an employee assistance program. If an employee has a problem, he goes through the employee assistance program. Let the people there decide whether he should be tested for drugs, for alcohol, whether it's a divorce from his wife or property problems or whatever it is. Very few people have a single problem. Mr. MARTINEZ. It sounds as if you would agree that employees have rights in circumstances involving drugs and drug testing. What would you say would be the bare minimum rights that you would recommend that a company employ?

Mr. McBAY. What would be the what?

Mr. MARTINEZ. The bare minimum requirements regarding the

rights of the individuals when they decide to do drug testing in the

company.

Mr. McBAY. Well, the reason that people say they're doing drug

testing is because they recognize a big problem. They know they've got people with lost productivity and everything. If they know who

they are, why do you have to test everybody in the plant? You

know, everybody says there's a problem that's out there. They

know there's a tremendous problem, they recognize there's a tre- mendous problem. They have a lot of people. But yet, you begin to

ask them, do they know anybody, have they got anybody in particular in mind?

Mr. MARTINEZ. What you're saying is that at minimum it should

be suspicion-based testing?

Mr. McBAY. I would say so. Some suspicion, yes. Obviously, if I have an employee of mine and there's something wrong with that employee, it's my duty to find out because obviously they're ex- posed to chemicals, AIDS, and everything else in my laboratory

and it's my duty, if I can do something about it. But my testing them for drugs would be probably pretty far down the list of priorities. I would like to have them go to employ- ee assistance and find out what is that problem.

Mr. MARTINEZ. Thank you. Mr. Schumeroh, Mr. Hayes, excuse me.

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Mr. Hams. Yes, Mr. Chairman.

I want to ask a couple of questions of the victim, Ms. Jones. I looked at your impeccable record of your performance on the

kb

and the rating that you were given. And the question that just eeps bothering me is why did they pick you the first place to

test? Did they tell you, or what? Ms. JONES. They didn't just pick me. Everybody at the particular

time was. They told us we had to have a physical exam. They never

told us it was going to be a drug test. They only said a physical

examination.

Mr. Hams. They never told you it was going to be a drug test?

Ms. JONES. They told us it would be a physical examination. And we went to have the physical. It was just everybody, they didn't

just pick me. Everybody had to go.

Mr. HAYES. All right.

Mr. MARTINEZ. Would the gentleman yield?

Mr. HAYES. Yes; Mr. Chairman.

Mr. MARTINEZ. So, what you're saying is that, in effect, the com- pany developed a policy probably because of the accidents that have happened in transportation, to make sure that their employ- ees were drug-free, so they avoided any possible lawsuit against

themselves by having an employee that would cause an accident. So, it was just a business decision on their part to test everybody? Ms. JoNEs. They were testing everybody for a physical examination.

Mr. MARTINEZ. All right. Thank you. Mr. HAYES. The board of education announced this policy, right, that they were going to test all of their employees? Ms. JONES. Physical exam, every year it comes up once a year.

Mr. HAYES. Did that include members of the board of education?

[Laughter.] Ms. JONES. No. They examined all the employees once a year. We have a physical examination once a year. It may be the transportation department, around May or June of each year we have one. Mr. HAVES. Was this test administered in a drug testing laboratory?Ms. JnrrEs. We had this test at the school in Bennington Heights. They sent it to a laboratory. Mr. HAYES. It wasn't done in the laboratory, though, was it?

Ms. JONES. No, it wasn't.

Mr. HAVES. All right. What did you do, go to some doctor's office

or something? Ms. JoNgs. No. We went to a school, one of our schools, and had

this urine test.

Mr. HAYES. All right.

Mr. MARTINS:.. No, they went to a clinic.

Mr. HAYES. Are you differing with that?

Ms. JONES. Yes, it was Bennington Heights clinic. Mr. HAYES. Is that right or wrong what she's saying? Mr. SOLEY. Congressman, just to clarify, Ms. Jones was tested at the Bennington Heights neighborhood clinic, which happens to be

part of a school.

Ms. JONES. Yes.

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Mr. HAYES. Oh, I see.

Mr. SOLEY. Or adjacent to.

Mr. HAYES. All right.

All right. You confirmed what has been my position all along. This is a random testing process. What happened to you? You are

one of the few that has really clearly expressed the story. I am bitterly opposed to just randonly testing people. I don't want to get into the racial composition. I know without saying

Ms. JONES. Right.

Mr. HAYES [continuing]. That all the employees tested were

black.

Mr. MARTIN= Thank you, Mr. Hay a. Mr. Schumer.

Mr. SCHUMER. Thank you.

First, let me say to Ms. Jones publicly what I have said to her privately, that I think all of us respect your courage in coming

here. There is no doubt that there are tens of thousands, hundreds

of thousands of people like you, and you have had the courage to

come forward, and hopefully, we will importune this Congress to do

something to protect you and others from this happening again. I just would like to ask a few more questions. When you had had this job for a long time, you have excellent

records, positive recommendations, how did you feel when they told

you that you were losing your job?

Ms. JONES. Sick. Sick, really.

Mr. SCHUMER. Did they tell you why?

Ms. JONES. Sure.

Mr. SCHUMER. And when you said to them you'd never smoked marijuana in your life, what did they say?

Ms. JONES. He said that the test had confirmed. Then he went on

to tell me, you ',7ncw, the percentage of whatever.

Mr. SCHUMER. Did, they ever give you a second test or anything like that?

Ms. JONES. No. I asked far one. I had written for one. I asked for

a hearing. They didn't allow me to have one. Mr. SCHUMER. You asked for a second test.

Ms. JONES. I asked for a test. I asked for a hearing. Mr. SCHUMER. You asked for a hearing, and they said no. Ms. JONES. "No."

Mr. SCHUMER. Okay.

Ms. JONES. They told me the only way I would get a second test

is I would have to pay for it.

Mr. SCHUMER. Right.

Ms. JONES. So, I went back to this clinic and begged this lady. She said, "We can't do it." She said it cost $75. I said, "I don'tcare.

I'll pay." And I begged her, and she finally gave me this one that

was negative.

Mr. SCHUMER. So, you did get a negative test? Ms. JONES. Another one. Not from them. From this lady, the

nurse.

Mr. SCHUMER. Did you try to bring that to the attention of the

school authorities?

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Ms. JONES. I sure did. I had written about that, too. They said no hearing.

Mr. SCHUMER. They said "No"?

Ms. JONES. "No."

Mr. SCHUMER. Even though you had gone and paid $75 for your own test that came out that you were 100-percent clean from

. JONES. They told me no. Mr. SCHUMER. You brought it back, and they said, "Forget it. You're out"?

Ms. JONES. No hearing. I was just fired. Mr. SCHUMER. Let me ask you another question. How did your family, your husband, your children react when you told them

about this?

Ms. JONES. They didn't believe it. They couldn't believe it. They

thought I was kidding, too, until they found out that I wasn't, be- cause I wasn't getting up and going to work. They knew that I

loved that job.

Mr. SCHUMER. Fine. All right. Okay. How did the people in yourwhat did you tell your friends, people in your church? I mean, did they know? What happened? Ms. JONES. They found out later what happened, and theyit was like I was a disease, you know, like going to church, everybody

turning around and looking at you like you were some kind of--

Mr. SCHUMER. How did they find out what had happened? Ms. JONES. I think it was becauseI think it's the news media

thing. I think they heard it. there.

Mr. SCHUMER. In other words, it was announced?

Ms. JONES. I think it was here in northeast, "Juanita M. Jones,

northeast resident," and I think it was here they pointed the finger

right there. Mr. SCHUMER. And once again, despite the fact that you have a perfect, exemplary work record- -

Ms. JONES. Right.

Mr. SCHUMER [continuing]. Your employer said one bad test, even

though it was a simple test and one that both Dr. Mc Bay and Dr. Mule would say would have, if not given under the ideal conditions, would have a significant chance of error, you were not given

a second shot at all?

Ms. JONES. They would not give it to me. Mr. SCHUMER. Okay. Well, the purpose of my legislation is to

protect people like yourself, to protect people who are in that situation and *here are lots of them, and more and more of them will

be.

Let me ask a few other questions. Mr. So ley, you were the lawyer who represented Ms. Jones when

she went to court. If she had been in the private sector, would she have any rnourse at all? Mr. SOL.5Y. None. None at all. At the time Ms. Jones was not a

union employee who would have had the benefits of a collective bargaining agreement. She had no contract, so she would have had

no rights whatsoever.

Mr. SCHUMER. Right.

Two other questions.

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First, I have heard that the kind of test that Juanita failed could

have been triggered by Advil. Is that accurate? Maybe one of the gentlemen would like to comment on that, since we have some experts.

Mr. Smarr. I can say that Civa Corporation, which was the manu- facturer of the test that Ms. Jones tookand I should also point out that they have withdrawn this testthat they did in February

1986 put out a bulletin which said that Advil, Nutrin, Motrin, any

other drug!, containing Ibuprofin would have or could have created

a false positive for the test, for the specific test that was given to Ms. Jones.

Mr. SCHUMER. And these are all legal drugs?

Mr. SOIXY. Absolutely.

Mr. SCHUMER. Okay. Oh, yes, what about this. It's not just Advil. There is a story of Esther Peterson. Esther Peterson is the former assistant agriculture secretary. She is 88 years old, and she tested positive for heroin at the age of 88. [Laughter.]

Then, eventually, they found the reaction was caused by a poppy- seed bagel. Does that surprise you? [Laughter.]

Mr. SOLEY. That's correct. I will defer to the medical doctors on

the panel.

M. SCHUMER. Sure.

Mr. SOLEY. But there has clearly been a relationship. Mr. SCHUMER. I mean, I know Esther is a lively woman and a

leading consumer advocate, but I didn't think she's that lively. Mr. Mull. I would like to address those two issues.

The Ibuprofin issue with the Civa EMIT test apparently, according to the company's literature, did cause some problems with one

specific assay and one specific enzyme. The assay was the marijua- na assay for THC for BOTSI, and the enzyme was malidehydrogenase.

Now, that assay, that enzyme is no longer used and has not been used for the last year or two. It was only in the 20 nanogram per mil cutoff level calibrator of that one assay. That is the situation with Ibuprofm.

It was never a great issue that I could ever see. We ourselves were not using the 20 nanogram per mil cutoff, since we were using the 100 nanogram per mil, and we're using the glucose-6

phosphate dehydrogenase enzyme assay. Mr. SCHUMER. That's just what I was going to say, Doctor. [Laughter.] Mr. Mtn& The issue with heroin is that what you raise is not heroin, it is morphine, which is a metabolite of heroin. But allow me to address that issue too.

There is and has been morphine and codeine in poppyseeds, real, not false. It is not a false detection by the analytical technology. The analytical technology sees morphine and sees codeine. Unfortunately, that morphine and codeine could be derived from a pop- pyseed product.

I have just submitted a paper for publication which has been accepted and is coming out in the issue of Clinical Chemistry which

shows that you can completely eliminate that particular problem

by analyzing for six monoaceteil morphine by gas chromatography

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coupled with mass spectroscopy. The 6-MAM is not a m ;tabolite of morphine, is not fi and in poppvseed products, is nut found in the

urine of people who eat poppyseeci products.

Mr. SCHUMER. All right, Dr. Mule- Mr. Mull. a is only found in those individuals that utilize

heroin.

Mr. SCHUMER. I read from what you and Dr. Mc Bay are saying is not that the testing technology isn't thereit isbut that unless we have some safeguards and some regulations. that the best testing technology is not used or things on the way to the testing tech- nology get in the way: they mix up samples or whatever. So, it seems to me that both Dr. Mule and Dr. Mc BayDr. Mc Bay has explicitly stated that he is supporting legislation that I have introducedit seems to me, Dr. Mule, everything you say would indicate that there ought to be some kinds of safeguards and

regulations, the kind that have wo..ked in the State of New York. Do you disagree with that?

Mr. MuiA. I believe the rights of individuals should be protected. Due process should be a part and is a part of our constitutional right. It should be utilized at all times, that individuals that do use drugs should seek help. Employee assistance programs ought to be

in place. There ought to be agreements between organizations and unions with regards to helping individuals who may have fallen

into the trap of drug usage. I have no quarrel with that parti..ular

issue whatsoever.

The only issue that concerns me at the moment, the critical aspect, is that drug testing can be done effectively, accurately, and

reliably.

Mr. SCHUMER. Right.

Mr. Mink That is the same right. Mr. Sc Hursita. If people are willing to A, spend the money which private companies have certain built-in characteristicstake this

situation: it's simply an application process, it's not even a worker whom they've spent money training. The private company has almost no incentive tc go through the safeguards that you have outlined to see that thE,, get an accurate reading. That is all we

are trying to do here. Mr. Mull. Well, I think they leave themselves open to lawsuits. Mr. ScHtmisit. Mr. So loy, is there any lawsuit now that could

restI don't think there is with a private companythat would

succeed unless we pass some kind of legislation like this? Mr. SOLEY. There are certain theories that are available for 1

litigant to use. But it is unlikely that a private employee can seek

redress unless the State constitution or a State law or a Federal

law protects that person.

Mr. SCHUMER. Right.

I don't think I nave any further questions, Mr. Chairman.

Mr. MARTINEZ. Thank you, M.'. Schumer. Let me just proceed along the line thrt Mr. Schumer was at the

end there.

For the three main drug tests--and this comes out of the GAO

report and studyin use one of the most common is what they call

the 3MIT, the enzyme multiplying immunoassay technique. Let me

read you what the report says:

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EMIT is one of the most cuir.mon testa used to screen urine for drug residues be- cause it is relatively inexpensive. It costs only $15 to $25 per test. The most common problem with this test is the so-called false positive problem, i.e., detecting the pres- ence of illegal drugs when they are not present. The problem occurs because in the EMIT 'set, over-the-counter and prescription drugs may appear as illegal sub- stances.

I think what Mr. Schumer was alluding to is the fact that if you

rely on this test and this test alone, you are going to get that most common problem, the false positive identification. Mr. Must. I don't fully agree with that. What I do agree with is

that you don't rely on a single screening test. It must be confirmed. No question about that.

Mr. Sedum& Which is what, Mr. Chairman, the legislation requires.

Mr. Mull. But I do not necessarily agree with the idea or the

comment that these screening techniques, the EMIT in particular, radioimmune assay, are cheap and inaccurate. They are relatively

inexpensive, I agree with that, as compared to the confirming tech- nology. But the screening techniques are not that inaccurate. I have done lots of studies and published lots of papers, and I can

assure you that in most cases we findand we use the EMIT and have used it since about 1973we find it to be accurate in the

neighborhood of about 97-98 percent. I would say a 95 to 100 per- cent range is not an uncommon experience, and I have data to indi- cate that.

Now, that does not mean that you can have at a given point in

time a drug molecule that may interfere, and those assays are

class-specific, not necessarily drug-specific. ro, you have cross-reactivity associated with it. But they are relatively good assays, and they are required be- cause generally less than 10 percent of your sample, total sample, may be required for confirmation. Sn, you are in a hifth range of not having to confirm, 90 percent. One has to elimina that because your confirmation technology is much more complex, much more sophisticated, and doesn't have the capability of handling

high numbers unless you have many instruments or many people. Mr. SCHUMER. Mr. Chairman.

Mr. MARTINEZ. Yes, Mr. Schumer?

Mr. Sciunna. Thank you, Mr. Chairman. Yes, I just would say, first, let me say that you said that the

screening test has a 95 percent rate of accuracy. Mr. Mull. I have seen that. 1 have seen that.

Mr. SCHUMER. You have seen it go that high. Ev"n 95 percent, I would argue, Dr. Mule, if the screening test is used alone, that's 1

in 20 people.

Mr. Mull. Oh, I wouldn't use it alone. No, don't misunderstand

me.

Mr. SCHUMER. But we heard testimony right before you came, from the GAO, that many companies do just use it alone.

Mr. MULE. Well, that cannot be done under the New York States

regulations for workplace testing.

Mr. SCHJMER. I understand. Right.

Mr. MARTINEZ. Well, that is one of the reasons why we like your regulations, and that is what we are trying to r.ccomplish with Mr.

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Schumer's bill to assure that there is confirmation testing, which

isn't taking place now in a majority of the places that they are doing drug testing. Mr. Mc Bay, would you like to respond to that? Mr. McBAy. Yes. The advantage of the split sample is that the

company is going to be rather embarrassed if the employee takes his sample out to a reputable laboratory and they do both a screening test and a confirmation test and let's say they did find the

screening test positive or they didn't, whichever way, and they

can't confirm it.

In other words, that is the advantage of it. In fact, that's how it's used in athletics and everywhere else. That is the very reason for

it, because of so-called adiainistrative error: somebody has a tray of 100 specimens and somebody switches a label, you've got two errors

now, one person who's got a drug isn't detected and the person who

hasn't got a drug is blamed. And don't tell me they don't happen. I have far fewer samples in my laboratory and we do everything we can, but we do find problems such as that occurring. We can't have two people standing

and watching everybody do some particular test. But we come back, of course, and recheck it when there is any question. Of course, this way you would have a sample. And as far as the

test--and I am sure in Dr. Mule's laboratory, I would say he might run better than 95, 92 percent or something, or 99 percent. But gosh, in the laboratory that tested Ms. Jones. and the cases I was considering, I would think they might run more around 60 or 70

percent and they don't even know. And it doesn't have to be Motrin or something like that that did

t. Cloudiness and everything else would have affected their proce- dure and they wouldn't know any different. Mr. MARTINEZ. What I think I hear you saying, Dr. Mc Bay, is

that you are somewhat in disagreement with Dr. Mule in that you

somewhat agree with the statement I read from the GAO report.

Mr. McBAy. I agree with what?

Mr. MARTINEZ. Based on the statement that I read from the GAO

report, that in one of the most common tests used to screen urine

for drug residues because it's relatively inexpensive but the most common problem with the test is the so-called false-positive problem.

Mr. MCBAY. Sure. False positives, false negatives. Also, you're payingin fact, the smart laboratory will come up with very few

positives and they can make good money that way. [Laughter.]

Mr. MARTINEZ. Mr. Schumer?

Mr. SCHUMER. Yes, just two other questions. First, Dr. Mule, Dr. McBay, to go beyond the screening tests and

do the full regular test, how much does that cost per person? Mr. MULE. Well, that depends on the laboratory. What do they

charge?

Mr. SCHUMER. Yes. Give me some range. Yes, I am a company, I

am an employer, I have a hundred people. Mr. Mixt. I would say your acceptable range today for a GC mass spec test is $50 to $20. Mr. Somas. Okay. Mr. Mixt. Per test.

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Mr. SCHUMER. That is my point, that if it's going to cost the com- pany, say, $100 or $200 to do the secondary test, many companies, if left on their own, will ;ust say the heck with it, let's get rid of

the employee. And thai.'s what happened to Ms. Jones here.

Mr. Mull. That's a distinct possibility.

Mr. SCHUMER. Right.

I just wanted the record to show, Mr. Chairman, that the real test, a onposed to the screening test which may have a rate of 60 percent or 38 percent or whatever, is a test that runs oftentimes over $100, as high as $200. Ms. Jones, I have just one more question that I wanted to ask just to bring it out for the record's sake so our colleagues can see it.

I understand that when you did work, your work extended

beyond your working hours, that you would visit some of the chil- dren on the buses afterwards, you would take them places and kept up a relationship with them. Could you describe that for us? Ms. JONES. In the summertime usually I would have them over for barbecues or something, you know, the children that I worked with, yes.

Mr. SCHUMER. And that is the courtesy you got after this test. Okay.

Ms. JONES. Yes.

Mr. SCHUMER. Mr. Chairman, I don't have any more questions. Mr. Mtarrnotz. Thank you, Mr. Schumer. Let me close by saying that clearly companies have a critical in- terest in how their workplaces are conducted and in the productivi- ty of the workers. There is no question that the abuse of drugs and alcohol have a negative financial impact on the company's ability

to function effectively and profitably.

On the other hand, employees who have dedicated their loyalty and a length of service to the company have a right to an expectation of privacy, dignity and presumption of innocence and the due

process rights accorded by the Constitution and laws of the jurisdic- tion.

I am hopeful that the testimony that we have received here today will lead us to a speedy solution before the abuses of testing

become as great as the drug abuse itself. We thank you for your expert testimony here today. We assure you that it will be very beneficial to us as we procead. Thank you again. We are now adjourned.

[Whereupon, at 12 noon, the subcommittee was adjourned.]

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