Hair-Follicle Drug Testing Lessons for Employers
When Bloomberg BNA started talking to medical professionals and research scientists on the topic of hair follicle drug testing, they heard plenty of stories that fell in line with the Massachusetts court’s opinion on the subject.
Lewis Maltby, founder and president of the National Workrights Institute, noted that hair testing had failed to pass muster with every independent research organization that had considered it. He told Bloomberg BNA that the testing method was fundamentally non-reliable. Prior to opening the NWI, Maltby led the National Taskforce on Civil Liberties in the Workplace for the ACLU.
According to Maltby, every scientist who supports hair testing proves to have some compromising financial ties to the testing companies. Maltby further notes that the Department of Health and Human Services will not allow it to be used by employers who are subject to federal regulations.
Examples of employers (it’s pretty common) thus barred from the practice include nuclear power plants. Bloomberg investigated further by speaking with Paul Harris, the man in charge of the fitness for duty program at the Nuclear Regulatory Commission.
“Although hair testing is a pretty old technique,” Harris said, “the technology it relies on simply hasn’t reached a satisfactory level to be considered a nationwide consensus standard. Harris notes that HHS has never created or published guidelines for standards on hair testing, preventing the NRC from authorizing it in power plants.
Dealing With Financial Contamination
According to J. Michael Walsh, there’s a very solid line of reasoning behind the conspicuous lack of federal guidelines on drug testing. Walsh was instrumental in laying out the first rules for drug testing on federal employees after President Ronald Reagan called for it at the end of the 1980s. Walsh also served as the Drug Advisory Council’s executive director and the National Institute on Drug Abuse’s director of research during President George HW Bush’s tenure.
Walsh let Bloomberg BNA know that the federal government has been subjected to lobbying and political pressure regarding hair follicle testing for “literally 25 years.” Walsh is dismissive of the idea of integrating hair testing into either the federal government’s own programs or its regulations for private sector employees. Although the technology is quite capable of accurately detecting the presence of drugs in hair follicles, it cannot tell users how the drugs got there.
Environmental contamination is one significant problem. Accidental exposure in all sorts of scenarios – situations much broader than intentional ingestion – can leave detectable drug residues in hair follicles (see how long they can detect).
- Maltby notes that the drug metabolites found in hair testing are two orders of magnitude smaller than the concentrations sought in urine testing. With the bar for drug use set that low, he says it’s quite impossible to eliminate the possibility of false positives caused by contamination.
- Maltby and Walsh both cited the example of trace amounts of cocaine, which can typically be found on a surprisingly large amount of US currency. Because the drug is such a fine powder, it can become lodged in hair with exceptional ease.
- Maltby’s examples included failing a hair test due to handling a $20 bill used to snort cocaine or due to passing through a confined space in which pot was smoked within the last 24 hours. Police officers in particular – who have excellent professional reasons to be in close contact with illegal drugs – would be ill-served by hair testing.
The Potential For Bias
Walsh was quick to point out that there may be fundamental racial bias built into the hair testing process (and how to pass). According to him, trace amounts of drugs are more easily retained for longer periods in coarse, dark hair. This translates into a distinct disparity between test results for black and white subjects.
The 10 police officers suing their employer in Boston are all black. They also have a case entering the First Circuit Court of Appeals alleging that the level of bias involved in hair follicle testing is inherently unfair. Walsh provided expert testimony for the group in their appeal case.
In 2014, the First Circuit found that there was a distinct imbalance in the way hair testing impacted black officers. When the case was returned to a lower court, though, it ruled in favor of the city of Boston. The lower court agreed with the city’s contention that hair testing is a necessary part of running the police department.
According to the officers’ brief, the key burden lies with the Department: It must prove that the hair test is truly a necessity. The group’s appeal also notes that the expert testimony attached to the case was essentially ignored by the lower court. Of particular note was a recommendation from a toxicologist at the US Naval Research Laboratory that the hair test be combined with random urine testing.
Urinalysis Far From Bulletproof
Yale’s William Becker is a co-author of a recent study which examined survey data collected from almost 70,000 workers. The study examined both the prevalence of urine drug testing and the self-reported impressions of the employees subjected to it.
Becker pointed out that the majority of employees have a flawed conception of how urinalysis works. They believe it to be a binary (“positive or negative”) process, while in reality there is considerable leeway in how both labs and employers interpret test results. Becker says that he’s seen many people drawing unreasonable inferences about the difference between, for example, oxycodone metabolites at 300 versus 1,500 nanograms.
Urinalysis is also flawed because metabolites can only be detected during a brief span of time. Maltby noted that habitual users could easily pass a planned urine test by simply abstaining for a week or two.
There are also issues of racial bias to consider with urine testing as well. The data shows that African-American employees are more likely to be tested even when adjustments are made for type of employment. Racial discrepancies showed up even in occupations where testing was mandatory for all employees.