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Drug And Alcohol Tests

The Whizzinator, a prosthetic "urine delivery system" designed to beat drug tests, triggered snickers on Capitol Hill when a congressional committee looked into putting its maker, and those of a slew of related products, out of business.

The Committee on Oversight and Investigations invited prosecutors, drug testing organizations and other experts to speak--along with the heads of the three biggest manufacturers: Michael Fichera of Health Choice of New York, Matt Stephens of Cincinnati's Spectrum Labs, and Dennis Catalano of California-based Puck Industries, maker of the Whizzinator.

Attorneys for these three did not return phone calls. But others who testified at the hearing said that the Whizzinator and its ilk may be worth a few laughs, but cheating threatens public safety, and employers are spending too much on drug testing not to be concerned.

"I can see why people think the Whizzinator is funny, but they wouldn't be laughing if they were on a plane piloted by someone who had used one, or if they were on the highway driving next to a truck going 75 miles per hour whose driver had tried to beat a test," said Melissa Moskal, executive director of DATIA, the Drug and Alcohol Testing Industry Association.

Even DATIA can't say exactly how much employers spend on testing. But Barry Sample, an official with Quest Diagnostics, a leading test firm, said that Quest runs over 7 million tests annually. Federal agencies spent $16.1 million last year under the Federal Drug-Free Workplace Program, said Robert Stephenson of the federal Substance Abuse and Mental Health Services Administration (SAMHSA). And that doesn't include testing mandated by the U.S. Department of Transportation and the Nuclear Regulatory Commission or testing by private employers.

The U.S. Department of Labor says that alcohol and drug abuse costs American businesses roughly $81 billion in lost productivity a year--$37 billion attributable to premature death and $44 billion attributable to illness. Employers also shoulder hidden costs related to tardiness, absenteeism, benefits and turnover, a DATIA official testified. Another hidden cost: As new masking products enter the market, test labs have to develop new detection technologies, and they pass the costs on to employers.

Over 70 percent of substance abusers hold jobs, according to SAMHSA. One in four used drugs in the past year, and one in three knows of drug sales in the workplace. According to the American Council on Drug Education, substance abusers are 10 times more likely to miss work, 3.6 times more likely to be involved in on-the-job accidents, five times more likely to file a workers' compensation claim, two-thirds as productive, and responsible for health care costs that are three times as high.

Lawmakers in over a dozen states have enacted laws criminalizing the use of these scams. But those laws vary widely in their coverage.

"Right now it's only a patchwork of restrictions. That makes it difficult but not impossible to prosecute. We'll probably come up with a federal proposal," said Kevin Schweers, a spokesman for the House Energy and Commerce Committee.

On June 15, Rep. Eliot Engel, D-N.Y., introduced such a measure, the Drug Testing Integrity Act of 2005. The bill would make it unlawful to manufacture, sell, ship or otherwise provide someone with a product designed for the purpose of defeating a drug test.

--Diane Cadrain is an attorney who has been covering workplace-related legal issues for a variety of publications for over 20 years.

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