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Workplace drug testing policies nabbing non-users
By Don McIntosh, Staff Reporter
Portland bus driver Anne Mason (not her real name) was fired. Airline pilot Duke Siotkas was threatened with the loss of his pilot's license. Steelworker Connie Turner was suspended. Flight attendant Michele Nelson kept her job, but must endure a humiliating and indefinite probation.
These workers, and hundreds of others, are victims of workplace drug testing policies that union officials and others say are punishing the wrong people - no trace of any illegal drug was found in their urine, but their lives were disrupted by the results of the tests.
Mason, who asked that her real name be withheld for this story, was fired from her job as a Tri-Met bus driver when for the second time in a year, she was unable to produce a large enough quantity of urine - 45 milliliters (mL) - to meet the requirements of the drug testing regulations. Mason and her defenders at Amalgamated Transit Union (ATU) Local 757 say she's paid a high price for what is sometimes referred to as "shy bladder syndrome," an inability to urinate when you think you're under observation. Her first failure was considered a "refusal to test," which meant she had to undergo regular urine re-testing. Over the next eight months, she was taken off the bus and ordered to urinate in a cup 14 times. Thirteen times she provided adequate urine samples, which showed no trace of any illegal substance. The 14th time, she was again unable to produce a 45 mL sample in a single urination within the three-hour time period, and was summarily fired, after 14 years of service to Tri-Met.
Her union is fighting the termination, but the outcome is uncertain; arbitration is scheduled.
An estimated 40 million U.S. workers are subject to drug testing in the workplace. Mason, because she was a Tri-Met bus driver, was one of 8.3 million U.S. transportation workers whose employers are required by federal law to conduct random testing. Under the law, pipeline workers, and workers in trucking, railroad, maritime, aviation and mass transit are urine tested for five illegal drugs: marijuana, cocaine, amphetamines, opiates and PCP. The law requires that they be tested before employment, after any accident, after any absence from work, if managers suspect they're under the influence, and randomly on average once every two or four years, depending on the industry.
Millions of other workers, in industries where it's not required, are also subjected to drug tests. According to the U.S. Department of Labor, 90 to 95 percent of U.S. companies with more than 1,000 workers require at least some of their employees to be drug tested. And about 47 percent of companies surveyed by American Management Association in 2000 reported that they drug test employees.
As Mason discovered, testing positive for illegal drugs is not the only way to fail a drug test. Workers can face sanctions if they're unable to urinate soon enough or in large enough quantity, if they refuse to urinate, if they show up late for the test, if their urine appears too diluted or is suspected of being adulterated, or, sometimes, if they test positive for legal prescription medicines.
That's what happened to Connie Turner, a bearing tender at Cascade Steel Rolling Mills' McMinnville plant. Turner was suspended pending termination in late 1999 when she tested positive for a medicine she had a legal prescription to take. Diagnosed with carpal tunnel syndrome, she'd been prescribed the painkiller Vicodin. Turner says she kept the pills in the bedroom, but one day when she needed the medication, her husband was sleeping there and she didn't want to wake him. So she took a different painkiller she'd been prescribed for an earlier illness. Shortly thereafter, she applied for workers' compensation benefits, and was drug tested, as provided for in company policy.
"They found traces of it in my system, and they called me in and fired me," Turner recalls. After she appealed to the company president, the firing was downgraded to a suspension, but she still was required to sign a "last chance agreement" in which she agreed to random testing for two years, and to waive other ordinary workplace rights.
"This is like the pharmaceutical police," said United Steelworkers staff representative Gaylan Prescott. Prescott described what happened to Turner as an abuse. Mike Hereford, director of human resources at Cascade (and a former president of United Food and Commercial Workers Local 555) said Turner's account of what happened is inaccurate, but he refused to provide an alternate account.
Now, the company wants to implement random drug testing of all employees without bargaining with the union. The Steelworkers opposes it, and the issue has gone to arbitration.
Prescott is quick to say that dangerous work environments like steel mills are not a place where employees want to see co-workers under the influence of drugs, but he says the existing policy, which allows testing if there's evidence of impairment, already ensures a safe work environment.
Random drug testing, on the other hand, invades workers' privacy, Prescott argued: "It is a method that employers have seen for social monitoring and social control outside the workplace."
As workplace drug testing has become widespread in the last 15 years, drug users devised strategies to beat the tests - ingesting herbs they believe will disguise the presence of drugs, adding adulterants to the urine samples, or smuggling in and substituting vials of clean urine.
To combat such forms of cheating, urine testing is done in a very controlled environment. Employees are asked to empty their pockets and remove outer garments, purses, etc. They're given a container and led to a private room with a toilet filled with blue-dyed water and no sink. They return the container to the collector, who tests the temperature within four minutes to ensure it is at least 90-degrees Fahrenheit, and inspects it to see that no blue water has been added. The collector then splits the urine into two samples (one for the initial test, and one as a backup safeguard) and seals the samples. Both collector and test subject sign and date a "chain of custody" form, and the collector prepares the sample for shipment to the lab.
But none of these precautions prevents what may be the most effective way to beat the test - drinking large amounts of water in order dilute the urine produced. To address this flaw, the government recommended in September 1998 that employers begin testing urine samples for dilution. But in the effort to crack down on cheaters, it now appears that hundreds of innocent workers have been harmed.
On Sept 20, 1999 Delta Airlines flight attendant Yasuko Ishikawa was drug tested on arrival in Portland after a nine-hour flight from Japan. A 5-foot, 3-inch tall Japanese national, Ishikawa seldom ate meat, weighed 95 pounds, and routinely drank two 1.5 liter bottles on long flights, a practice recommended by Delta to avoid dehydration.
Five days after her drug test, she got a call at her Beaverton, home from a company doctor who told her that the sample she'd given the collector was so "dilute" as to be "not consistent with human urine." The company would therefore conclude she had "substituted" something else in its place and treat it as a "refusal to test." Suspended immediately without pay and benefits, Ishikawa was fired a month later, after seven years at Delta.
No one who knew Ishikawa, a cheerful and honest employee who loved her job, could believe she was a drug user, much less a drug user who would carry a vial of water in a body cavity on every flight just to be able to fake a random drug test. Something had to have gone wrong.
Word spread quickly among Ishikawa's friends and co-workers, and the case came to the attention of Robert Morus, executive vice president of the Air Line Pilots Association (ALPA) and a pilot at Delta Airlines. When he's not in the cockpit or attending union meetings, Morus is at home tending his several-acre vineyard near Hood River. Morus has made drug testing a personal crusade. He had already harbored serious misgivings about the drug testing protocols. When Ishikawa, a friend of a friend, was fired, Morus says he knew immediately he had the perfect poster child for what was wrong with drug testing.
To determine that a sample is in fact urine and hasn't been diluted or substituted, government-certified labs test for the presence of creatinine, a waste product produced in muscle tissue. Normal urine specimens have from 30 to 100 milligrams of creatinine per deciliter of urine. As part of the new validity testing rules, the Department of Transportation proposed a threshold: at or below 20 mg/dL would be considered "dilute," - cause for suspicion, and grounds for follow-up retesting; at or below 5 mg/dL would be considered "substitute" - considered a "refusal to test," and perhaps grounds for termination.
The problem, Morus said, is it appears some people are able to produce urine samples that go below those amounts. The lab that tested Ishikawa reported a creatinine level of 5 mg/dL.
Morus began doing research on validity testing, and came across several articles by Vina Spiehler, a noted forensic toxicologist who has inspected drug labs for the government. Spiehler criticized the arbitrary cutoffs for creatinine, saying they discriminate against women, vegetarians, the elderly, people who drink lots of water, and people of small body size.
Spiehler also argued for greater safeguards for validity testing, since "for employees subject to urine drug screening sometimes the penalties for abnormal urine characteristics are more severe than those for the presence of drugs in their urine." Testing positive for the presence of drugs is a two-stage process: a cheap, less accurate screening test is performed, and if the sample tests positive, a confirmation test is performed using state-of-the-art gas chromatography/mass spectrometry analysis. Then, the employee has the right to order the "split" sample to be tested at a different lab. No such double-checking or second opinion is done in validity testing.
Employees like Ishikawa can be returned to duty after evaluation by a substance abuse professional, successful completion of a rehab program, and a negative result on a return-to-duty drug test. The report of a substituted sample, on the other hand, meant an assumption that she had cheated.
In defending Ishikawa, Morus at first thought the best strategy would be to create such a scene with flight attendants, that company would back down and use its discretion to reinstate Ishikawa. After all, the validity test she had failed was not yet required by the government. Though it doesn't yet represent flight attendants at Delta, the Association of Flight Attendants started to get involved.
Ishikawa's friends never accepted the company's claim that Ishikawa had cheated on the test. They donned yellow ribbons to signify a wait for her return, until they were told to remove them by management. They made thousands of fliers and put them in flight attendants' boxes in Atlanta and Dallas. They wrote support letters testifying as to her moral character.
Delta called an employee meeting in Portland at which a lawyer, a doctor and a regional manager explained the company's drug testing policies and assured employees that the lab that did all the testing for Delta, Kansas-based LabOne, was 100 percent accurate. With $24.5 million in annual revenues from drug testing, LabOne is one of the largest of 60 labs certified by the U.S. Government to analyze urine samples; its biggest client is Wal-Mart.
Meanwhile, attorney Mark McDougal of the Kafoury McDougal law firm agreed to take her case. But Ishikawa had few rights under the administrative procedures in place, so McDougal would have to wait until more information became available.
"We were looking for a test case," Morus said, "and it fell into our lap."
In July 1999, Delta pilot Duke Siotkas had been drug tested when he returned home from a 10-hour Rome-to-New- York flight. Siotkas weighed 145 pounds; during the trip he had drunk three liters of water. He'd eaten a cup of non-fat yogurt before the flight,and nothing on board. The test results: 0 creatinine, the drug testing equivalent of tap water. Could Siotkas have produced a sample with such qualities, or was something going wrong at the lab?
Unlike Ishikawa and several other flight attendants Delta had fired for the same offense, Siotkas had rights. For Siotkas, substituting a urine sample would mean revocation of his pilot's license (and thus loss of his livelihood,) but that could only happen in an administrative procedure that included the right to an appeal before an administrative law judge of the National Transportation Safety Board. That meant, ALPA lawyers knew, the right to subpoena documents, present expert testimony, and compel testimony from Delta and drug lab employees. After many months of preparation, Siotkas' case went to trial in September 2000. The company's case fell to pieces, Morus recalls, and multiple examples of negligence were exposed at LabOne. It came out that at the time Siotkas was being tested, the lab's machinery was indicating it was having problems. Equipment was malfunctioning and the lab took no action. Lab employees admitted under oath that they'd faked maintenance forms afterward.
"We had difficulty believing the lab could be so bad," Morus said.
Faced with such evidence, the Federal Aviation Administration dropped its effort to revoke Siotkas' license. Delta canceled its contract with LabOne, and though it admitted no guilt, offered Siotkas and four fired flight attendants reinstatement. The Department of Transportation announced an emergency inspection of the 60-plus labs certified to do testing to see whether they'd implemented more accurate tests that the government had earlier proposed. Two-thirds of them failed, and 300 tests results were ordered thrown out - 83 of them at LabOne. "The revelations that resulted from ALPA's case cast strong doubt on the professionalism and quality control standards within the drug testing industry," Morus said. "Our confidence in the drug testing program has collapsed."
Ishikawa's case could now take off. McDougal filed suit on her behalf against Delta and LabOne. When the suit went to trial in June 2001, the case against Delta was dismissed, but the jury found LabOne responsible, and awarded Ishikawa damages of $400,000 - $68,000 for the income she'd lost, and $332,000 for emotional distress. The company intends to appeal the verdict.
Ishikawa and her attorneys plan to appeal the decision that Delta was not responsible. "The court had the view that Ÿ Delta was duped," McDougal said. LabOne contributed to Delta's mindset, McDougal said, but it was Delta that fired Ishikawa. "They were gung-ho on zero tolerance, which, as enforced, meant zero rights."
McDougal said he's also looking beyond Ishikawa to the possibility of a class action lawsuit. Up to 40 labs were involved in same practice that resulted in the Portland jury verdict, and the victims number in the hundreds.
"The real horror here is that in the beginning somebody said, 'We're going to let science make the decision, and we're not going to let the science be challenged.'"
Ishikawa has been exonerated, but her test was thrown out only on a narrow technicality of lab procedure. The arbitrary threshold itself - 5 mg of creatinine per dL of urine, hasn't changed, so employees with low creatinine levels are still being victimized.
To halt what it sees as a continuing abuse of innocent employees, ALPA attorneys filed suit in a U.S. Circuit Court of Appeals, challenging the government's rule, which was to become mandatory this month. In the meantime, many employees who really do produce low-creatinine urine samples may be in limbo.
In October 2000, Delta flight attendant Michele Nelson, who is five-feet, two-inches tall and weighs 110 pounds, was accused of substitution on the basis of a low creatinine reading. Delta didn't fire her, but it did treat her as a suspected drug user, suspending her for three months, ordering her to see a substance abuse professional and initiating a program of regular follow-up tests.
She's been tested five times since she returned to work in January. The first four were just above 5.0 mg/dL, and the most recent one just below.
"It feels like I'm being tried over and over and over again," Nelson said. "I don't think a minute has gone by in the last nine months that I haven't thought about this."