DATIA is pleased to announce that Congress passed the Workplace Drug Testing Bill with DATIA's proposed amendments as part of the large budget bill (HR 4328). "This is a tremendous success for DATIA, few associations can ever hope to have this kind of impact on legislation in only their third year of existence. This goes to show the importance and effectiveness of DATIA's legislative program, those efforts are clearly bringing results to our members," said DATIA President Jeffrey C. Smith. In fact, DATIA was lauded by Senator Kit Bond (R-MO), Chairman of the Small Business Committee, as being a leader on this issue by being one of the initial supporters of the bill.

DATIA believes that this crucial piece of legislation is important because it creates a model for non-mandated drug testing. The bill should be used by employers and drug testing service providers as a measure for the correct way to provide drug testing services to non-mandated businesses. The bill creates standards that: allow flexibility in providing services, require at least two years experience in drug testing, allow possible use of alternative specimens while also requiring proper Chain of Custody, use of certified labs and that all presumptive positives must be reviewed by a Medical Review Officer (MRO).

The bill is also important because it creates incentives for small businesses to drug test. Only three percent of small businesses drug test while over 97 percent of the 500 largest companies drug test. DATIA has said since its foundation that in order for the drug and alcohol industry to grow, small businesses need to be involved. According to Amy J. Taylor, DATIA Government Relations Representative, "Apparently, funding for this bill was shaved from $10 million to $4 million because of concerns that Congress was spending too much money. Still, this is a critical piece of legislation because Congress acknowledged that drug testing is an important public policy and should be encouraged in the non-regulated workplace. Clearly, this is more important than the funding amounts."

Development and implementation of this program will be handled through the Small Business Administration (SBA) and DATIA will work closely with them to ensure that members get all the pertinent information on how to apply for participation in this program. Taylor warns, "This funding will not be available immediately, and DATIA will keep members informed of program developments as they are made available."

As a result of DATIA's hard work, the following changes were included in the bill:

(1) The bill allows both non-profits and for-profits to apply for the $10 million (only $4 million was appropriated) in funding to provide technical and financial assistance to small businesses drug testing.

(2) The bill allows "flexibility" for drug-testing service providers to provide assistance to small businesses.

(3) The bill instructs the drug testing service providers to use Chain of Custody forms and requires that MROs be used to confirm all positives.

(4) The report language expressly states that drug testing service providers may use on-site kits, hair, saliva, and sweat testing as long as the labs confirm all positives.

(5) The report language states that the employers must provide a list of substance abuse professionals, and are not required to cover the cost of these programs.

(6) The bill states that the employer and the collection site may not ask if the donor has taken prescription drugs since it violates the privacy of the employee.

DATIA is pleased to be a leader in expanding drug testing to small businesses which is a win for the drug and alcohol testing industry!

As with most businesses, marketing and growing provides both a challenge and an opportunity. For the drug and alcohol testing services industry, both the challenges and opportunities are greater than most others face. At DATIA, we now have a number of programs to help members succeed in the difficult and time intensive efforts of marketing their services.

Among the greatest marketing challenges faced by a drug and alcohol service provider is the lack of knowledge among businesses and the general public about our industry. The truth is that the public is aware of the practice of drug and alcohol testing, but not the existence or role of drug and alcohol testing providers. With so much attention on drug testing, you might assume there is widespread knowledge about drug testing, but such is not the case.

Following the recent passage of the Drug Free Workplace Act of 1998 (see cover story), small businesses have even more incentives to begin drug and alcohol testing programs. Moreover, insurance companies are offering substantial discounts on workmen's compensation insurance, now as high as 7% in Georgia, for businesses who implement drug free workplace programs. But even major insurance companies are not aware of whom to refer the interested businesses in order to take the first step in implementing a program. For both small to mid-sized businesses looking to begin a drug free workplace program and service providers looking to increase their revenue and assist these businesses, this lack of knowledge is a real problem.

At DATIA, we identified the need to connect small and mid-sized businesses with drug and alcohol testing service providers. This in itself is a huge undertaking for any single drug and alcohol-testing company. However, when the industry as a whole works together it can be done effectively on a large scale as we are doing at your national association.

Such is the case of the first ever Drug and Alcohol Testing Industry Directory and Buyers' Guide, which will be available both in a "yellow pages" format hard copy and online at datia.org. The purpose of this directory is to act as both a marketing and PR tool for the industry as a whole and its individual components. DATIA will distribute the directory to over 3,500 NATIONAL trade associations representing drug and alcohol testing sensitive industries. Such associations include transportation, sports, small business, medical, industrial, union, machinery, military, energy, manufacturing, education, insurance, construction, and many more. These associations include over 3 million employers who see the benefit from implementing drug free workplace programs, have the financial ability to develop such programs, but do not know the first step to take.

DATIA Members receive complimentary listings in the directory, and for added visibility, members have the option to enhance their listing through various means, such as display advertisements. These enhancements will enable DATIA to distribute the directory on a complimentary basis. The aim is to have the directory paid for entirely by advertising, and provided free of charge to any employer group or trade association that has an interest in it.

We also will be distributing information on the directory to the media and trade publications. Coupled with the passage of the Drug Free Workplace Act, I strongly believe this new directory will be the single most important step forward for marketing our industry that has yet been undertaken. I know most of you will see some major results in the coming year.

This is the first in a series of articles in Drug & Alcohol Testing Industry News on the business and technological aspects of running a substance abuse program. This regular column will be authored by experts in the drug testing industry, and members are invited to submit material for publication.

Most of our members are probably aware of the various federal laws that regulate the collection and testing phases of drug and alcohol tests that are specifically mandated by the federal government. Such testing is often referred to as "regulated" testing because a government regulation is requiring a specific test and that it be conducted in a particular manner. When the federal government requires such testing, its mandates will preempt other state laws. However, the state law may apply when the federal law is silent. Therefore, it is important to consider the underlying state law, too.

The various state laws are most important for employers who are conducting non-regulated testing. "Non-regulated" refers to testing that is not specifically mandated by a state or federal law. For example, many private employers choose to institute a drug and alcohol testing program to meet their own corporate objectives.

The law develops through two distinct venues, the legislature and the courts. These venues can operate separately or in conjunction with one another. Generally, the state laws regulating workplace testing can be broken down into three categories.

Those states that do not regulate or restrict testing by either the courts or legislature (Delaware and New Hampshire). Those states where the legislatures have regulated workplace testing (Vermont and Louisiana). Those states where the courts have restricted workplace testing (Massachusetts and California). There are also a handful of states that provide reductions on workers compensation premiums for employers who comply with specific statutory mandates (Florida and Alabama). Those regulations apply only to those employers who want to take advantage of the premium reduction.

Most of the state statutes adopt or mirror the federal guidelines for collection and testing. Some provide greater protection to employees by expressly prohibiting certain forms of testing (no random testing), restricting testing procedures (no direct observation), or providing additional employee rights (automatic rehabilitation). For the most part, however, the employers are responsible for ensuring testing is conducted in the manner prescribed by the state law. This can be challenging for employers who are located in many states.

There are a handful of state legislatures or agencies that have adopted rules or regulations that specifically apply to laboratories and collection facilities that conduct workplace testing. Again, these rules would apply when testing is not regulated by a federal rule or where the federal law is silent regarding a specific provision.

Often employers will ask the collection site or laboratory personnel about the specific laws of their state(s). These employers should be referred to the state agency regulating workplace testing, often the state's Department of Labor, or the employer's own corporate counsel for complete and accurate advice.

Sandra DeBow, J.D., M.P.H. is an attorney whose professional career has focused on employment and labor law issues. She is a partner of Current-DeBow, a newly formed company that provides technical, legal and educational services to corporations, associations and providers in the drug-free workplace industry. Sandra will be regularly writing for this newsletter and this article serves as an introduction so the issues she will be addressing.

In an effort to identify adulterants in federal workplace and DOT drug-testing, federal regulators issued guidance for testing and reporting adulterated specimens. At the same time, the Department of Transportation (DOT) and the Department of Health and Human Services (HHS) issued guidance to HHS certified laboratories and Medical Review Officers (MROs) on testing and interpreting validity tests for urine specimens.

The DOT document provides guidance for MROs on appropriate actions when interpreting whether the specimen is valid or if it has been adulterated. The HHS document provides guidance to laboratories to determine the validity of the specimen. Both of these guidance documents were issued to ensure consistency between the labs and MROs when determining if a specimen has been adulterated.

DATIA believes that this is an important and significant step by HHS and DOT to identify adulterated specimens. This guidance helps the MROs and labs to consistently identify and report adulterated specimens.

For a complete copy of these guidance documents, see DATIA's website at www.datia.org.

Spurred by a Congressional hearing critical of the time it's taking to review alternative specimens for federal workplace drug testing, HHS is developing working groups to assist in determining if hair, sweat, oral fluids and on-site urine tests can and/or should be used in government mandated drug testing. These working groups will identify the areas for each specimen that are in need of additional information and to develop a process to get that information.

Alternative specimens are already being widely used by the private sector employers. They have said that drug testing other specimens means lower costs, greater window of detection, greater ease and alleviates certain privacy issues. For example, some employers prefer to drug test hair in pre-employment testing because the window into previous drug use is longer than urine. Some employers prefer oral fluids for post accident testing because it identifies current drug use. In some cases, especially for small business drug testing, cost is the most important fact and the ability to pick and choose the most appropriate form of drug testing is ideal.

By refusing to hear a challenge to an Indiana high school drug testing policy, the Supreme Court has opened up the possibility of expanding drug testing in schools. The Indiana policy requires that all students involved in extracurricular activities must submit to random drug testing.

In 1995, the Supreme Court ruled that schools could randomly test students who play sports, but the Indiana case is the first time a drug-testing program for all students involved in any extracurricular activity has been found constitutional.

Under the drug testing plan, students must submit to random drug testing if they are involved in sports, social clubs, academic clubs, business clubs, student government, internships and even if they drive to and from school. In addition to illegal drugs, the students are also tested for alcohol and tobacco. Parents' permission is required.

If a student tests positive, they may seek a retest or explain reasons for the positive result. Until the student either tests negative or explains the positive, they are banned from the activity and may not drive to and from school. Repeated positive tests could mean further discipline by the school.

Bill Thistle
General Counsel
Psychemedics Corporation
Culver City, CA

William Thistle is General Counsel for Psychemedics Corporation located in Culver City, California. Psychemedics Corporation is unique from other drug-testing providers because they use hair instead of urine to test for illicit drugs. Psychemedics is the only organization to hold a hair-testing patent. Bill says that the organization provides drug-testing services to over 1,000 corporate clients nationwide including General Electric, Bush, BMW in addition to several municipalities including the New York City and Chicago Police Departments. He says that many of these corporations and cities use a combination of hair and urine testing in their company drug testing policy.

Bill says that some businesses prefer hair testing because it is harder to adulterate, has a greater window of detection and does not have the same privacy issues as urine testing. He says that many organizations use hair testing for pre-employment tests because a 1/2 inch of hair can detect drug use up to 90-days prior. According the Bill, once the hair is cut from the donors head (in an non-conspicuous place), the hair goes through a rigorous washing process that gets rid of any chance of testing positive for passive exposure to drugs or anything that could adulterate the test.

Bill has been very active with the Department of Health and Human Service's Drug Testing Advisory Board responsible for making recommendations about whether alternative specimens, including hair, should be used in federally mandated drug testing. In addition, Bill and Psychemedics' President Ray Kubacki, testified before a House of Representative's Committee this year in support of hair testing to be allowed in mandated drug testing.

Bill admits that hair testing may not be the appropriate specimen to use for all drug testing. For instance, hair may not be appropriate for post accident drug testing because the hair would not have had time to absorb the drug if it was taken right before the accident. Bill is a firm believer that ALL organizations should have the opportunity to decide for themselves what type of drug testing programs work best for them.

For more information contact Bill at: Psychemedics Corporation, 5832 Uplander Way, Culver City, California, 90230, (800) 522-7424, or email mis@psychemedics.com