The U.S. Mandatory Guidelines for Federal Workplace Drug Testing Programs: current status and future considerations

The U.S. Department of Health and Human Services (HHS) drug testing standards were published in 1988 and revised in 1994, 1998, and 2004. In 2004, significant revisions defining, standardizing, and requiring specimen validity testing on Federal employee donor urine specimens were included. In a separate notice, HHS proposed to establish scientific and technical guidelines for the Federal Workplace Drug Testing Program to: (1) permit laboratory testing of hair, oral fluid, and sweat patch specimens in addition to urine specimens for marijuana, cocaine, phencyclidine, opiates (with focus on heroin), and amphetamines [including methylenedioxymethamphetamine (MDMA), methylenedioxyethamphetamine (MDEA), methylenedioxyamphetamine (MDA)]; (2) permit use of on-site point of collection test (POCT) devices to test urine and oral fluid at collection sites; (3) permit use of instrumented initial test (screening only) facilities [IITF] to quickly identify negative specimens; and (4) add training requirement for collectors, on-site testers, and MROs. This proposal was published in the Federal Register on 13 April 2004, with a 90-day public comment period. The Substance Abuse and Mental Health Services Administration, HHS, reviewed those comments and is preparing the Final Notice that will define the requirements for such testing, including: specimen collection procedures, custody and control procedures that ensure donor specimen identity and integrity, testing facility, initial and confirmatory test cutoff concentrations, analytical testing methods, result review and reporting, evaluation of alternative medical explanations for presence of drug or metabolite in the donor's specimen, and laboratory certification issues. Voluntary pilot performance testing (PT) programs for each specimen type are on-going since April 2000 to determine how to prepare PT materials for specimens other than urine to evaluate laboratories' ability to routinely achieve accuracy and precision required. Certification programs will be developed using the current urine drug testing National Laboratory Certification Program model. The addition of accurate and reliable workplace drug testing using hair, oral fluid, and sweat patch specimens will complement urine drug testing, and aid in combating industries devoted to suborning drug testing through adulteration, substitution, and dilution. For example, hair testing may detect chronic drug use for up to 90 days and be useful in pre-employment situations; oral fluid testing may detect drug use in past hours and be useful in post-accident situations; sweat patch testing may be useful in follow-up drug testing and treatment programs; POCTs and IITFs may be most useful for quickly identifying specimens that are negative for drugs and indicate that the specimen is valid.     

Role of occupational health services in workplace drug testing

In Finland, workplace drug testing is mainly performed in accordance with the Act on the Protection of Privacy in Working Life (759/2004), (http://www.finlex.fi/en/laki/kaannokset/2004/20040759) [1], the Occupational Health Care Act (1383/2001), (http://www.finlex.fi/en/laki/kaannokset/2001/20011383) [2] and the Decree on Workplace Drug Testing (218/2005) [3]. The role of occupational health services is stated in the Occupational Health Care Act. All workplace drug tests are carried out by health services according to good occupational health care practice. A referral for a drug test is given by a physician or a nurse working in health care services. When giving the referral, the physician or nurse should inform the person to be tested of the purpose and content of the test, record any medication they may be using, and make sure they are aware that they can later dispute the result of the test. The identity of the person should be checked before taking a sample. The analysis laboratory sends the result of the drug test to the health care service unit that has given the referral. If the test result is positive, the laboratory gives a detailed analysis of the test result. The health care service personnel provide the testee with the result. If it is negative, it may be given by a nurse. When the test result is positive, a Medical Review Officer (MRO) should interpret the answer and evaluate whether the positive result is due to medication, or another reasonable explanation offered by the person tested. The MRO informs the person of the options of rehabilitation treatment available to drug abusers stated in the written drug testing policy/programme of the employer/company. The testee takes the test result report to his/her employer personally.     

Changing Perceptions of Sexual Harassment in the Federal Workforce, 1987–94

Recent criticisms of sexual harassment law and workplace training policies contend that they have "sanitized" the workplace through their stigmatization of sexual expression that does not amount to actual discrimination. This study assesses some of the empirical foundations for those normative arguments. Using data from the U.S. Merit Systems Protection Board's 1987 and 1994 surveys, we examine differences over time in federal workers' perceptions of what types of behavior constitute sexual harassment. The article draws on a sociolegal theory of the endogenous nature of law as well as research on perceptions of sexual harassment. We hypothesize that, because of increased attention to sexual harassment, and to the hostile environment theory specifically, by scholars, judges, and the news media, and related policy changes in workplace training programs, federal workers likely came to view a wider range of sexual conduct as constituting harassment during this time period. The results support our expectations. We also find that sexual harassment training in their agency increased workers' likelihood of viewing both hostile environment behavior and quid pro quo behavior as harassment.     

Legal, workplace, and treatment drug testing with alternate biological matrices on a global scale

Global trends in drug trafficking and drug usage patterns indicate a continuing pattern of escalation throughout the world. Over the last two decades, urinalysis has evolved into a highly accurate means for determining whether individuals have been exposed to illicit drugs of abuse. Advances have also been made in the use of alternate biological matrices such as hair, oral fluids and sweat for drug testing. Often, these new matrices demonstrate some distinct advantages over urinalysis, e.g. less invasive procedures, different time course of drug detection. They may even indicate impairment. National and local laws of each country provide the underpinnings of drug-testing programs, but most countries have not addressed use of these alternate matrices. Currently, only a few countries have statutes that specifically mention use of alternate biological matrices, e.g. United States (Florida state law), Germany, Ireland, Poland and the Czech Republic. Conversely, few countries have prohibited collection of alternate biological specimens or drug test devices that utilize such specimens. In addition, guidelines for implementing drug testing programs have been slow to emerge and most deal primarily with workplace drug testing programs, e.g. United States. Currently, scientific technology utilized in drug testing is advancing rapidly, but there is a clear need for parallel development of guidelines governing the use of alternate matrices for drug testing. This article provides an overview of global drug trafficking patterns and drug use, and results from a survey of legal statutes in 20 countries covering use of alternate matrices for drug testing. In addition, elements needed for the development of guidelines for alternate matrices testing for drugs of abuse are discussed, and specific examples of use of alternate matrices in treatment monitoring are provided.     

Administrative "health courts" for medical injury claims: the federal constitutional issues

Our article analyzes whether the federal government may constitutionally supplant a traditional system of common-law trials before state judges and juries with new federal institutions designed by statute for compensating victims of medical injuries. Specifically, this article examines the federal constitutional issues raised by various proposals to replace traditional medical malpractice litigation in state courts with a federal system of administrative "health courts." In doing so, we address the following constitutional issues: 1. Is there federal authority to preempt state law (the commerce clause and spending clause issues)? 2. May jurisdiction be created in non-article 3 tribunals, and may claims be decided without trial by jury (the separation of powers and Seventh Amendment issues)? 3. Would pilot programs that require some claims to be pursued in a federal administrative forum while other claimants are left to pursue traditional state tort law remedies be constitutional (the equal protection issue)? The article concludes that a federal compensation system through administrative health courts should be constitutional provided the statute is appropriately drafted and that appropriate factual findings are made concerning the benefits to patients and the public as well as to doctors and their insurers.     

New technology and new initiatives in U.S. workplace testing

A current perspective of workplace drug testing in the USA is presented covering three major issue areas: (1) epidemiology, (2) new technology and (3) initiatives to reach out and assist small business. First, national illegal drug-use self-reported survey data is compared with national laboratory drug testing results, illustrating a number of inconsistencies. During the 17-year period (1988-2004) the number of laboratory positive test results has decreased by 66% while during the same period self-reported drug-use has increased by 30%. The lack of concurrence between lab results and self-report surveys are examined in light of the typical panel of drugs being tested in U.S. laboratories, the increased specificity of immunoassay screening tests, and the critical issues of adulteration and substitution. Second, a brief review of the state-of-the-science in rapid point-of-collection (POCT) oral fluid drug-testing devices is presented along with some device evaluation findings. In general the window of drug detection in oral fluid is measured in hours. Most of the available oral fluid POCT devices can detect methamphetamine and amphetamines and opiates very well. The ability to detect cocaine appears to vary significantly across devices, while the ability to detect cannabis use is generally poor across all devices. Finally, efforts to reach out and assist small businesses in the development of workplace anti-drug programs are discussed in the context of increasing workplace programs in the European Union.     

Finnish guidelines for workplace drug testing

The Finnish guidelines for workplace drug testing outlined here represent what is considered the best practice for workplace drug testing to be followed in Finland. The guidelines are based on the act on the protection of privacy in working life (759/2004), the occupational health care act (1383/2001) and the decree on workplace drug testing (218/2005). They start by defining situations in which workplace testing is allowed and continue up to the point where the certificate is submitted to the employer. The role of the occupational health care system is crucial in the procedure. The guidelines include the best practice procedures to be followed by laboratories providing workplace drug testing services. The laboratory recommendations are based on general principles established internationally. In the Finnish guidelines, accreditation is an absolute prerequisite for a laboratory functioning as a workplace drug testing laboratory. The laboratory section of the guidelines includes specimen collection, laboratory organisation, analysis procedure, quality assurance and quality control measures. These largely conform to the European laboratory guidelines for legally defensible workplace drug testing published by the European workplace drug testing society (EWDTS), but there are differences. In addition to using urine as a specimen, the Finnish guidelines also encompass blood.     

The Finnish legislation on workplace drug testing

In Finland, the Act on the Protection of Privacy in Working Life (759/2004) that entered into force in 2004 incorporates provisions related to drug use testing, e.g. on the employers' right to process in certain situations information on job applicants' and employees' drug use. In the same context, provisions were added to the Occupational Health Care Act (1383/2001) on the employer's obligation to draw up, together with the staff, a written programme dealing with alcohol and drugs for the workplace. The programme defines the overall objectives for and the practices to be observed at the workplace in order to prevent substance abuse and to refer the problem users to treatment. The Occupational Health Care Act also includes provisions on drug tests and the drug test certificate as well as on reimbursement of the expenses of drug tests. Furthermore, the Act lays down a definition of drug tests. Every workplace shall have a plan/programme on drug-free workplace, where the jobs in which the workers have to present a drug test certificate to the employer must be defined. This plan/programme shall be discussed in cooperation on tripartite basis at the workplace. A Government decree on drug use testing (218/2005) has been issued in virtue of the Occupational Health Care Act. It lays down provisions on the practical performance of drug tests, i.e. taking and analysis of samples, and interpretation of the test results. The purpose of the Government decree is to ensure that workplace drug testing is carried out in a way presupposed by a good occupational health care practice and the laboratory quality standards, taking into account the integrity and protection of privacy of the persons tested as well as their other fundamental rights.     

Genetic discrimination: the use of genetically based diagnostic and prognostic tests by employers and insurers

Genetic discrimination is detrimental to public health programs, as well as to society generally. Advances in genetic testing and screening, accelerated and prompted by the Human Genome Initiative, increase society's ability to detect and monitor chromosomal differences. These technologies and their resulting genomic data will enhance medical science, but may also encourage discrimination. Although few employers or insurers currently utilize genetic screening, testing or data, rising employee benefit costs and market forces create powerful incentives for usage. Current municipal, state and federal laws, including the Americans with Disabilities Act (ADA), may not sufficiently protect employees and insureds from genetic discrimination. While municipal and state protections should not be overlooked, the ADA's sweeping scope may currently provide the most comprehensive safeguard. Federal laws banning discrimination on the basis of race or sex might also successfully redress some forms of genetic discrimination. Genetic technologies' advent necessitates efforts to rectify state and federal statutory coverage gaps, strictly regulate employers and produce comprehensive guidelines regarding its use.     

Drug testing sworn law enforcement officers: One agency's experience

The use of drug testing to detect drug use and to screen prospective employees has become commonplace in many occupations, both in the public and private sector. Due to the sensitive nature of their duties, drug testing in law enforcement agencies has become nearly universal, especially as a tool to screen applicants. Despite the fact that many large agencies routinely use drug testing, relatively little is known about the rate at which officers test positive for drug use, characteristics of officers who test positive, nor the drug of choice among currently employed sworn law enforcement personnel. The purpose of this article is to discuss various issues related to drug testing in the workplace and to explore one agency's experience with randomized drug testing of its sworn officers.     

Government delays release of medical marijuana supply

The federal government's initiative to make marijuana available for medical use continues to run into problems and delays. In a recent development, the first crop produced by the government's designated grower turned out to be too impure to use. The delays have led to the launch of a lawsuit against the federal government.     

Practitioner fraud and abuse in medical benefit programs: government regulation and professional white-collar crime

Physicians who defraud and abuse medical benefit programs provide a unique group of lawbreakers for scientific study. They could be considered to epitomize white collar criminals given their exceedingly high socioeconomic status and power as a professional group. Using official reports and documents, as well as interviews with enforcement and program personnel at both state and federal levels, this study examines the problem of physician fraud and abuse in Medicare and Medicaid. Major areas relevant to understanding this phenomenon and its control are presented and policy implications of present knowledge in the area are discussed.     

High prevalence of 6-acetylmorphine in morphine-positive oral fluid specimens

Identification of 6-acetylmorphine, a specific metabolite of heroin, is considered to be definitive evidence of heroin use. Although 6-acetylmorphine has been identified in oral fluid following controlled heroin administration, no prevalence data is available for oral fluid specimens collected in the workplace. We evaluated the prevalence of positive test results for 6-acetylmorphine in 77,218 oral fluid specimens collected over a 10-month period (January-October 2001) from private workplace testing programs. Specimens were analyzed by Intercept immunoassay (cutoff concentration=30 ng/ml) and confirmed by GC-MS-MS (cutoff concentrations=30 ng/ml for morphine and codeine, and 3 ng/ml for 6-acetylmorphine). Only morphine-positive oral fluid specimens were tested by GC-MS-MS for 6-acetylmorphine. A total of 48 confirmed positive morphine results were identified. An additional 107 specimens were confirmed for codeine only. Of the 48 morphine-positive specimens, 32 (66.7%) specimens were positive for 6-acetylmorphine. Mean concentrations (+/-S.E.M.) of morphine, 6-acetylmorphine and codeine in the 32 specimens were 755+/-201, 416+/-168 and 196+/-36 ng/ml, respectively. Concentrations of 6-acetylmorphine in oral fluid ranged from 3 to 4095 ng/ml. The mean ratio (+/-S.E.M.) of 6-acetylmorphine/morphine was 0.33+/-0.06. It is suggested that, based on controlled dose studies of heroin administration, ratios >1 of 6-acetylmorphine/morphine in oral fluid are consistent with heroin use within the last hour before specimen collection. The confirmation of 6-acetylmorphine in 66.7% of morphine-positive oral fluid specimens indicates that oral fluid testing for opioids may offer advantages over urine in workplace drug testing programs and in testing drugged drivers for recent heroin use.     

Good cop, bad cop: federal prosecution of state-legalized medical marijuana use after United States v. Lopez

The Supreme Court's recent decisions in United States v. Lopez and United States v. Morrison articulate a vision of federalism under which Congress's regulatory authority under the Commerce Clause is severely limited in favor of returning traditional areas of state concern, particularly criminal law enforcement, to local or state control. The Court's decisions in these cases coincide with ballot initiatives legalizing the medical use of marijuana garnering a majority of the vote in California, Arizona, Alaska, Colorado, Nevada, Oregon, Washington, Maine, and Washington D.C. Those who use marijuana for medical purposes under sanction of state law, however, still face the threat of federal prosecution under the Controlled Substances Act. Medical marijuana proponents have traditionally, and unsuccessfully, contested federal prosecution using individual rights arguments under theories of equal protection or substantive due process. This Comment argues that after Lopez and Morrison, the federal government's authority to regulate intrastate use of marijuana for medicinal purposes is not the foregone conclusion it once was. The author suggests that proponents of medical marijuana use should invoke the federalism arguments of Lopez and Morrison and argue for state legislative independence from the federal government on this issue.     

Negotiating authority: a comparative study of reform in medical training regimes

Recently the medical profession has faced increased outside pressure to reform postgraduate medical training programs to better equip young doctors for changing health care needs and public expectations. In this article we explore the impact of reform on professional self-governance by conducting a comparative historical-institutional analysis of postgraduate medical training reform in the United Kingdom and the Netherlands. In both countries the medical training regime has shifted from professional self-regulation to coregulation. Yet there are notable differences in each country that cannot be explained solely by diverging institutional contexts. They also result from the strategic actions by the actors involved. Based on an assessment of the recent literature on institutional transformation, this article shows how strategic actions set negotiating authority processes into motion, producing new and sometimes surprising institutional arrangements that can have profound effects on the distribution and allocation of authority in the medical training regime. It stresses the need to study the interactions among political context, the properties of institutions, and negotiating authority processes, as they are crucially important to understanding institutional transformation.     

Analysis of scientific and pedagogical activities of Forensic Medicine Departments (courses) at higher medical schools in Russia

Pedagogical staff of departments (courses) of forensic medicine at higher medical schools of the Russian Federation, topics of research and pedagogical work at various faculties of higher school are analyzed. Forensic dentistry curriculum is suggested for students of dentistry faculties. New forms of forensic medical training are presented.     

Legal issues in oral fluid testing

The use of oral fluid for drugs of abuse testing has received increased attention with the availability of accurate methods for the collection and analysis of drugs in oral fluid specimens. Already used in the transportation and insurance industries, there is increasing interest in oral fluid drug testing in the workplace, schools, roadside driving under the influence of drugs, and criminal justice. Given that sanctions may accrue from positive test results, legal challenges are to be expected. However, with its established scientific base, demonstrated accuracy and reliability of collection and test methods, and current positive regulatory developments, it seems clear that the use of oral fluid as a specimen for drugs of abuse testing will be able to withstand judicial scrutiny.     

Legal issues in oral fluid testing

The use of oral fluid for drugs of abuse testing has received increased attention with the availability of accurate methods for the collection and analysis of drugs in oral fluid specimens. Already used in the transportation and insurance industries, there is increasing interest in oral fluid drug testing in the workplace, schools, roadside driving under the influence of drugs, and criminal justice. Given that sanctions may accrue from positive test results, legal challenges are to be expected. However, with its established scientific base, demonstrated accuracy and reliability of collection and test methods, and current positive regulatory developments, it seems clear that the use of oral fluid as a specimen for drugs of abuse testing will be able to withstand judicial scrutiny.     

Organizational Interpretations of Drug Test Results

The U.S. courts consistently have upheld the constitutionality of laws regarding mandatory drug testing policies in the workplace and schools; these policies were designed to detect individuals' drug use that could compromise public safety. Yet looking at the uses of drug test results in another setting—the justice system—reveals one aspect that goes largely unaddressed in these laws and prior research on drug testing: the organizational context surrounding the administration of drug tests that shapes how their results are understood. In response, this article uses ethnographic methods to analyze the ways that staff at a juvenile drug court in southern California interprets drug test results. The article demonstrates that the staff's understandings of drug testing results involve interactional and institutional processes, dependent upon meanings constructed and situated in local organizational contexts.