by Robert C. Schoening
A topic that should be high on the discussion list but is not, is the term “current use” and what does it mean or imply. This article will examine current use versus non-current use for the purposes of drug testing.
Even though no specimen source was given, the scope of this article will be limited to hair testing. Why, is because the case involves Harrah’s and a casino employee. The casinos in Las Vegas routinely use hair testing for their drug test programs.
The American’s With Disabilities Act (ADA) has been of concern to the drug testing industry and to the Federal regulators who write and enforce the drug and alcohol test regulations. The ADA was enacted in 1991 as a massive piece of legislation. The ADA was put in the hands of the Department of Justice (DOJ) to promulgate rules and guidance on top of enforcing this ADA.
The section of the ADA that is of concern is the section that addresses disabilities. Addiction to controlled substance is considered a disability. The term that is used to determine if addiction is a disability is “current”
It is stated in 42 U.S. Code § 12210 – Illegal use of drugs” the term “individual with a disability” does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.”
It should be recognized that the term “currently” does not have any defined time frames or parameters.
To date, courts recognize that a disability “substantially limits” a person’s ability to participate in activities but does not include individuals who are currently using controlled substances.
While urine and oral fluid specimen will detect the presence of controlled substances with use within the past 24 hours up to 7 days ago of use, that would meet the requirement of currently use as given in the ADA.
Hair testing presents some issues with the ADA and testing of hair. Why is a multi-part question.
- Drugs will be retained in hair for the length of the hair even if for instance the hair is 12 inches in length.
- The source of the hair is another concern as the growth rate will vary from each place on the head or the body from where it is harvested.
- The ADA while not defining current use, it is generally accepted by the labs that a positive test with 90 days of hair growth can be defended in court.
- Test hair from other parts of the body but will that hair sample fall within the laboratories self-imposed 90 days of hair growth?
So why is there 90 days limitation of hair growth by the testing labs? The labs feel that they can defend in court a positive test for controlled substances if the sample contains only 90 days of hair grown.
Can the labs determine exactly when a controlled substance was used in a hair test? No, as the entire sample is consumed in doing the test.
There are many other factors that can determine if a hair test is positive or not. An argument that cannot be ignored is “Disparate Impact”. Disparate impact is a way to prove employment discrimination based on the effect of an employment policy or practice rather than the intent behind it. This goes into the racial bias of hair testing. There is a discussion about this Constitutional issue but with no final decision.
Readers are advised that if there are concerns to consult with an attorney who is skilled in employment law. For further information, you can read about the ADA at the following site: 42 U.S.C. §12210(a).
Robert C. Schoening is recently retired from the US Coast Guard where he managed the drug and alcohol program for the US Maritime industry nationally and internationally. While at Coast Guard Headquarters in Washington DC, he was asked by the White House Office of National Drug Control and Policy for input on how to help curb the issue of substance abuse in this country. He received the Navy Achievement medal for his work in developing the Navy’s drug test program in 1982-1983. He now works as a consultant in the field workplace substance abuse and has written over 90 articles to help address this issue.