Science indicates a problem – a HUGE problem – but big businesses, making big money, could not care less. Why should they when the law and the courts don’t hold them accountable? It is a system that is broken, and when the law refuses to step in, it remains that way.
There are many jobs and entire industries that require drug testing before one can enter the hallowed halls and join their workforces. These include many jobs in the federal sector, law enforcement, and private sector jobs with federal regulations. Drug tests can be conducted with urine, blood, saliva, and hair samples on a regular basis. Individuals seeking employment sign the line consenting to drug testing, trusting that the companies performing these tests will exercise care. They have no choice if they want the job.
Unfortunately, when these testing companies fail to exercise care, the cost is an employee’s livelihood. Yet, these companies are allowed to slink away under the cover of darkness. When false positive test results are verifiably incorrect, there is no accountability. The employee is left fighting for their career with no recourse for the damage the testing company has caused.
A very common method for drug testing in the workplace is hair follicle testing. Its increased popularity is due to its ability to detect substance use over a longer timeframe and its perceived resistance to manipulation. However, the fact remains that there are numerous questions about the reliability of the science behind them.
Hair follicle testing may indicate drug exposure, but the difficulty arises when attempting to determine how that exposure occurred. This ambiguity poses a critical question in the reliability of attributing drug presence to internal ingestion or external contamination.
Experts agree that certain drugs and chemicals bind to melanin, the pigment responsible for hair color. Furthermore, melanin is not the only issue with these tests. Scientists have argued that cosmetic treatments commonly used by individuals with darker hair can damage hair cuticles, thereby increasing the risk of contamination from drugs in the environment. Remarkably, higher concentrations of melanin in darker hair and chemical treatments for individuals with certain hair types raise concerns about potential racial disparities in test outcomes.
What does this mean? It means that certain demographics of people, many minorities, might be more prone to false positives due to their hair characteristics.
When employees are told about their false positive test results, they protest. Companies have the ability to provide alternative tests or retest to verify results, but there are many testing companies out there that only care about the big money they are making and have no regard for the lives they are destroying.
There are many employees that have received their false positive test results and quickly gone out to have tests conducted by other companies, in an effort to prove the prior test result was a false positive. When they have proof of negative tests, they fight to provide their negative results to testing companies and their employers. There are employees that have begged testing companies and employers for retests or to consider the results of retests they paid to have done themselves. Sadly, these protests and pleas are often ignored.
This battle has been ongoing for decades. Even now, there are numerous lawsuits filed throughout the country by people wronged by testing companies and employers that are not interested in the truth. Despite testing companies contracting with employers to provide these tests for their employees, and employees signing off on consent forms with the expectation that these companies should be trusted to produce accurate results, there are courts holding that these third-party testing companies have no duty of care to the employees. The employer has now fired the employee based on the result, and the company performing the test continues to do business as usual – leaving the employee with nothing.
It is important for employers and testing agencies to be aware of these potential biases and to consider them when interpreting the results of hair follicle tests. Individuals undergoing such tests should be treated fairly, and testing policies should be implemented in a way that minimizes the risk of discriminatory outcomes. It is our hope that the law catches up with the science and where it does not, that employers question these testing companies and fairly consider retests or alternative tests to verify the so-called positive test results.
If you have concerns about legal issues as they relate to your employment, we have attorneys available for consultation.