Pubdate: Fri, 15 Dec 2000
Source: New York Times (NY)
Copyright: 2000 The New York Times Company
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Author: Laurence Zuckerman

WORKERS GET GREATER DRUG TEST PROTECTION

The Transportation Department announced new rules yesterday to 
protect the rights of 8.5 million workers who undergo drug testing 
that the government makes mandatory as a safety measure. But critics, 
while welcoming the changes, said they did not go far enough.

The new rules were made public on the same day that the Department of 
Health and Human Services disclosed new evidence of testing 
laboratories' shortcomings that can mistakenly brand innocent workers 
drug abusers, ending their careers.

The most significant of the rules involve so-called validity testing, 
a relatively new procedure to determine whether a urine specimen is 
legitimate. Under current rules, transportation workers whose 
specimens are found to be invalid are assumed to be cheaters. Many 
are fired without any opportunity for an appeal.

The new rules extend to validity testing two safeguards that already 
protect a worker who actually tests positive for any of five illegal 
drugs: cocaine, heroin, amphetamines, marijuana and PCP. A medical 
review officer, hired by the employer, will have the right to cancel 
the result of a validity test upon finding a sound medical reason for 
a specimen's testing illegitimate. And workers will have the right to 
demand that a second sample of their specimen be tested at a 
laboratory different from the first.

The drug testing of millions of transportation workers--largely bus 
and truck drivers, airline flight crews and mechanics, and a variety 
of railroad workers--is required by the government in the name of 
public safety.

But serious questions about validity testing, which is now optional, 
at the employer's discretion, were raised in September after Delta 
Air Lines agreed to reinstate four flight attendants and a pilot whom 
it fired last year for failing validity tests. Delta had maintained 
that the tests were accurate, and the four flight attendants, though 
insisting that they had not tampered with their specimens, had been 
unable to challenge the airline's decision.

But after the pilot appealed the Federal Aviation Administration's 
revocation of his license, it was discovered that the laboratory that 
had performed the tests had not followed government testing standards 
and, in a subsequent cover-up of that failure, had falsified evidence.

The Health and Human Services Department, which supervises the 
validity testing laboratories, subsequently inspected all 66 of them 
to see if they were meeting the standards. The agency said yesterday 
that as a result of its review, it would instruct laboratories to 
cancel the results of tests failed by 250 to 300 workers. (It would 
not say whether the Delta workers were among them.)

That number "is telling us how broad the issue is," said Robert 
Morus, a Delta pilot who has taken the lead on the matter for the Air 
Line Pilots Association.

Most major airlines and railroads say they automatically fire 
employees who fail validity tests. But exactly how many people have 
lost their jobs since validity testing guidelines were first 
introduced by the government two years ago is not known.

Federal officials say validity testing is necessary to combat a 
growing number of people who try to beat drug tests by adulterating 
their samples, with products that range in nature from simple 
lemonade to items sold over the Web with a guarantee to mask drug use.

"We have to protect the integrity of the program," said Mary 
Bernstein, director of the Office of Drug and Alcohol Policy and 
Compliance at the Transportation Department. "We would not be doing 
what was necessary in terms of safety in the workplace if we did not 
have ways of addressing the problem" of cheating.

The Transportation Department does not have precise data indicating 
how many workers are cheating. But it cites numbers compiled by Quest 
Diagnostics, one of the country's biggest testing laboratories, which 
has said that roughly 2,000 of the 650,000 government-mandated 
specimens it tested last year showed evidence of tampering.

Yesterday unions, as well as lawyers representing fired workers, 
lauded the Transportation Department's new rules, but said they still 
did not do enough to protect workers. The Air Line Pilots Association 
said it would like to see workers gain the right to take the 
initiative in challenging test results with their employer, rather 
than depend on an employer-hired medical review officer.

The pilots' union and other critics also said the government was 
applying a faulty standard to determine which specimens are 
fraudulent.

According to that standard, a urine specimen that shows creatinine, a 
byproduct of muscle metabolism, to be at a level of 20 milligrams or 
less per deciliter is considered "dilute," while a sample with 5 
milligrams or less per deciliter is considered "substituted," meaning 
it could not possibly have come directly from a human.

But some forensic toxicologists say a small but significant number of 
the 40 million workers subject to random drug tests in transportation 
and other industries each year could fall below the five-milligram 
threshold if they simply drink a lot of water before the test or have 
any of several disorders, including kidney disease, sickle cell 
anemia and diabetes.

Further, women are known to excrete less creatinine than men. There 
is also evidence that small people who do not eat meat are 
susceptible of falling below the threshold, particularly if they have 
consumed a great deal of water.

Yasuko Ishikawa, one of the four Delta flight attendants who lost 
their jobs, weighed 90 pounds, rarely ate meat and, on the day she 
was tested last year, drank about three quarts of water to avoid 
dehydration during a nine-hour flight from Japan. A few days later 
she was told that her sample had been "substituted," and within 
weeks, Delta had fired her for submitting a false specimen.

"I was just in total shock," said Ms. Ishikawa, who immigrated from 
Japan in 1991 and vehemently denies ever using drugs or altering her 
specimen. "I couldn't understand what was going on."

In February, the Substance Abuse and Mental Health Services 
Administration, an agency of the Department of Health and Human 
Services, issued a summary of the research it relied on to set the 
standard. Critics say that only a handful of the 47 studies cited in 
the document are relevant to the issue of validity testing 
specifically rather than just drug testing generally, and they note 
that this handful involved just 18 subjects, only 3 of whom were 
women.

Robert L. Stephenson II, acting director of the substance abuse 
agency's division of workplace programs, maintains that the science 
is sound. Nevertheless, his office has begun a review of the 
standard, inviting public comment.

The Transportation Department said the new safeguards it announced 
yesterday would go into effect next month. It added that validity 
testing, which has been optional for transportation companies since 
1998, would not become mandatory until the Health and Human Services 
Department finished the review of the standard next summer.
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