Drug Tests Are Becoming More Invasive

Standard drug tests aren’t nearly as effective as they used to be because it’s so easy to circumvent them. A simple search on Google will reveal dozens of tried-and-true tactics. When there’s a will, there’s a way. Probably one of the most inventive is the Wizzinator.

For those who’ve never heard of this brilliant little device, it’s a contraption designed to look like a genuine human penis with a urine container which is attached to the body and designed to look as if you’re actually urinating when you pinch the valve to drain it. And there are similar female devices, although their use is a bit more involved.

In response to devices like these, drug testing procedures have been adapted to include checking for them. And in most cases the invasion of privacy involved in doing so is beyond extreme. Some employers, such as those involved with the Department of Transportation, require direct observation of the person’s genitals, and then observing the testee as they urinate. Direct observation is always required of all follow up and return to work tests for the Department of Transportation; meaning, to put it bluntly, if you’re injured on the job and have to take a few weeks off, they get to look at your junk before you’re allowed to come back to work.

For those who’ve never been subjected to a ‘direct observation’ drug test, it’s difficult to imagine the indignity that a person goes through in order to comply with regulations. So, here are the exact procedures for a ‘direct observation‘ drug screening from the Department of Transportation’s website:

• The observer must be the same gender as the employee.
• If the collector is not the observer, the collector must instruct the observer about the procedures for checking the employee for prosthetic or other devices designed to carry “clean” urine and urine substitutes AND for watching the employee urinate into the collection container.
• The observer requests the employee to raise his or her shirt, blouse or dress / skirt, as appropriate, above the waist, just above the navel; and lower clothing and underpants to mid-thigh and show the observer, by turning around, that the employee does not have such a device.
• If The Employee Has A Device: The observer immediately notifies the collector; the collector stops the collection; and the collector thoroughly documents the circumstances surrounding the event in the remarks section of CCF. The collector notifies the DER. This is a refusal to test.
• If The Employee Does Not Have A Device: The employee is permitted to return clothing to its proper position for the observed collection. The observer must watch the urine go from the employee’s body into the collection container. The observer must watch as the employee takes the specimen to the collector. The collector then completes the collection process.

Failure of the employee to permit any part of the direct observation procedure is considered a refusal to test.

That Sounds Unconstitutional!

According to the Supreme Court, it’s not. It may be outrageous, but courts have ruled that such invasive testing is allowable when there’s a reasonable expectation that drug use would result in a danger to public safety. And this might even be a reasonable course of action if urinalysis was more likely to show current intoxication than off duty drug use–but of course we all know it’s not.

So where does one draw the line, considering the likely uselessness of private testing on one hand, and the outrageousness of observed testing on the other. Apparently, JetBlue hasn’t just crossed the line–they forgot it even existed. A recent lawsuit accuses the company of forcing a flight attendant to lift her shirt and bra up to her armpits, drop her pants to her ankles, and then urinate into a cup while an observer squatted two feet away at the level of her genitals to observe the process.

Then, she had to go through the entire process again because common medications she was taking for a bladder infection caused discrepancies in the test. This time, it was even worse. According to the complaint, the observer “squatted six inches away from Reese while she urinated and at one point ‘reached out and physically spread plaintiff’s legs wider by pushing against the inside of plaintiff’s left knee with the back of her right hand.’”

Who Are These “Observers?”

Most of the time when a person is submitting to the drug test, they make the mistaken assumption that the person observing their genitals and watching them urinate is a nurse or an otherwise trained medical professional. That is not a requirement. From Samhsa’s handbook on urine specimen collections, these are the requirements for a person who wishes to become a direct urine specimen observer. The person must:

• Be knowledgeable of the direct observed collection procedure as described in the Mandatory Guidelines
• Be knowledgeable of any guidance provided by the federal agency or by HHS relating to the direct observed collection procedure described in the Mandatory Guidelines
• Receive training on the following subjects:
  • The steps necessary to perform a direct observed collection correctly
  • Maintaining the integrity and security of the specimen throughout the collection process by maintaining visual contact with the collection container
  • Ensuring the privacy of the donor
  • Ensuring that the observation is done in a professional manner, to minimize discomfort of the donor
  • Avoiding conduct that can be interpreted as offensive or inappropriate
  • Be the same gender as the donor. There are no exceptions to this requirement. An observer is not required to be a trained collector.

  As you can see, these observers are not trained medical professionals. They aren’t even required to be a trained collector. There is also no mention of a requirement that the person undergo a background check to ensure they are not a sex offender–merely the requirement that the person is of the same gender as if this somehow insulates the testee from the possibility of assault or inappropriate behavior.

  Privacy Violations In The Private Sector

  Even more outrageous is that this type of testing method isn’t just used for very safety sensitive jobs (although it’s extremely arguable how “safety sensitive” a flight attendant’s job is). A recent court case in Ohio, LUNSFORD v. STERILITE is addressing the case of four women who were forced to produce their urine samples under direct observations at a plastic container plant. In the private sector, there’s little to no regulation of drug testing at all. Lunsford’s type of situation is far from unique.

  If you don’t know your company’s drug screening guidelines yet, you can ask for a written copy of their policy. You may be surprised at the extent of invasion which they allow to maintain a drug free workplace. More importantly, if you’re ever subjected to a drug test and the testing procedures violate the written policy provided to you by your employer, you might have a good lawsuit on your hands. It doesn’t matter who administers the test by the way. Whatever company does it is acting as your company’s agent, and therefore, your company is responsible for their actions–a lesson that JetBlue is learning all too well at the moment.

  Privacy Isn’t The Only Concern

  Discrimination against medical marijuana users is rampant despite the mounting evidence that medical marijuana may be a safer alternative to both opiate pain treatment and recreational alcohol use.

  Recently, Dish Network received severe public backlash for firing a paraplegic employee who was using medical marijuana to treat intractable muscle spasms. The case, which happened in Colorado of all states, went all the way to the state Supreme Court.

  The court documentation notes that Brandon Coats, who is confined to an electric wheelchair and has only limited use of his hands, was a model telephone customer service representative. But after he obtained a license to use medical marijuana and informed his company that he was using it, he was fired despite his exemplary performance. Keep in mind that Coates was not engaged in a safety sensitive job by any means, and that he performed indisputably well at his job. Yet the Colorado Supreme Court ruled that he was not wrongfully terminated after a 5-year battle.

  What benefit does society as a whole gain from Brandon Coates’ unemployment? Does he simply serve as a precautionary tale to those suffering from the same disorder that they must turn to addictive pharmaceuticals for their pain lest they join the unemployment line?

  More importantly, this man clearly qualifies for disability, yet he found a way to earn a living and contribute to society despite his physical limitations. What are the implications here for taxpayers who already face massive burdens? How can this possibly be considered a socially responsible viewpoint or policy?

  Yet this scenario is not uncommon.

  In response to these outrageous situations, states are adopting guidelines to prevent discrimination against medical cannabis users who ingest on their own time, but we have a very long way to go. Meanwhile, what’s a medical cannabis user to do?

  How Do I Pass A Drug Test?

  This is one of the most common questions we see. In fact, an adventurous Nugg blogger wrote a piece that actually provided some pretty sage advice in this area. The answer?

  Stop smoking cannabis.

  Well, he’s not wrong. It’s great advice if your employment depends on it because it’s the only way to actually avoid testing positive for cannabis use.

  But maybe we’ve been asking the wrong question. When we truly examine the considerable indignities we are exposed to with drug testing procedures, the invasion of privacy, and the outrageous assumption that an employer has the right to regulate what we do when we aren’t on the clock, why are we subjecting ourselves to this draconian treatment at all?

  Are we mice or are we men? Our cannabis use shouldn’t be the topic of conversation here. Casual cannabis use is no more an employer’s business than the decision to crack open a beer and watch football on your day off.

  Becoming A Drug Test Conscientious Objector

  No, the appropriate topic of conversation here is why employers feel they are justified to examine employee’s genitals on demand and investigate what they do in their free time. Even employees who don’t use cannabis or any drugs at all should be reasonably outraged by such a request.

  So what would happen if the pool of applicants willing to subject themselves to such indignities simply dried up?

  The answer to this question is already apparent. The employers would change their policies, and many already have. But finding these forward-thinking employers can be challenging. It’s not always easy to find a company’s full drug testing policy on Google–not to mention the time it takes to research all of these places before we apply.

  In response to the hassle, a very helpful Redditor began this thread to let people enter information about their company’s drug testing policies in a database. There are only 175 entries so far, but it contains information from companies like Walmart, K12 and Target.

  A preliminary check shows that the information isn’t 100% accurate. For instance, the chart says that Walmart never drug tests, but they actually do for safety sensitive jobs like driving a forklift or for management positions. It’s a good effort though as long as the user is willing to double check the information before applying too. And the database is sure to improve as more people enter information.

  Indeed is another source of information that looks a little more accurate. Prospective employees can ask questions as well as rate the company’s work environment, and fellow employees are usually happy to share the details.

  States That Protect MMJ Users’ Rights

  Some states are also taking action to prevent abusive drug testing policies altogether, or at least diminish the harms that result.

  Connecticut, Iowa, Maine, Minnesota, Montana, Nevada, Vermont and New York City have all passed laws that restrict drug testing to one extent or another. This is an important win for citizens who are concerned with the loss of our Fourth Amendment rights against unreasonable search. The Supreme Court has done very little to protect these rights in recent decisions, so it’s very clearly up to our legislators to uphold our constitutional values.

  The legislators in California tried to pass a similar law the 2019 season, but the proposed bill was defeated. AB 882 would have prevented employers from terminating an employee for testing positive for a drug that is being used as a medical-assisted treatment under the care of a physician or licensed treatment program. It was quickly defeated due to concern that the bill would hurt companies that rely on federal funding.

  And of course, it’s been making the news lately that some states are moving very far in the other direction. For instance, Wisconsin now requires drug testing for all food stamp recipients. Alabama, Arkansas, Arizona, Florida, Georgia, Kansas, Michigan, Mississippi, Missouri, North Carolina, Oklahoma, Tennessee, Utah, and West Virginia have varying drug testing requirements for public assistance as well. These programs come at a hefty price tag and produce positive results in very few cases.

  The Takeaway

  Drug testing policies are in flux, and there’s still very little common sense exercised in the public debate. The current argument in style is that if employees need to be tested for jobs, then welfare seekers should be tested too, and maybe politicians while we’re at it. What we’re not hearing is that maybe these tests aren’t really worth it at all. Very few people are considering the cost to human dignity, our 4th Amendment rights and our health and safety.

  But there are employers out there who forego drug testing because they understand that such policies only give lip service to public safety concerns, and in some cases drive employees to much more dangerous pain treatment and recreational alternatives in their off-time. We just have to do a little work to find them.

  If you’re looking for employment right now, perhaps it’s time to consider one of these more forward-thinking companies in the best interest of freedom. More importantly, it might be time for all of us to consider who deserves our business as well. Perhaps if companies like Dish Network saw a loss in revenue, they would reconsider their draconian anti-medical cannabis policies.

  We all know it’s darkest before the dawn. As big pharma begins to lose its grip on our over-medicated and unhealthy nation, people are finding better alternatives to treat their ailments. Dietary changes, exercise, meditation and social support are all playing a huge role in our health revolution; and for some, medical marijuana is playing a big part in this change too as we work to overcome pain and addiction to opiates, cigarettes and alcohol. It usually takes years for laws to change bad policies, but change they will.

  Let’s help them get there faster.

  The opinions of the author are not necessarily the opinions of Nugg, NuggMD or Nugg Club.