Public Health Law Map - Beta 5 - Medical and Public Health Law Site

employers have started drug-free workplace programs, either by choice or because of
government regulation. Drug testing is often used for preemployment screening
because it is not considered a medical exam and so it is permissible under the
Americans with Disabilities Act.
Procedures and regulations differ according to the specimen being tested. The most
important legal distinction is whether the test is regulated by the U.S. Department of
Transportation (DOT). DOT has been the leading agency for drug testing. There are
elaborate rules governing how the test is done and how the results are used. The very
large volumes of tests done every year allow the DOT to discover and respond to legal
and technical problems quickly. The simplest and best way to operate a drug testing
program is to follow DOT procedures for unregulated as well as regulated testing.
It is wise to use DOT-certified laboratories for all testing as well. These laboratories do
large volumes of drug tests so they can be quite inexpensive. They are carefully
regulated and the system is designed to prevent false positives: this means that any
equivocal results are interpreted in favor of the person being tested. Despite the fact
that they do millions of tests per year, any documented false positive drug test is
carefully investigated by federal agents.
Hospital labs and those that do general clinical work do very poorly by comparison.
Drug testing is an evidence-gathering procedure, not a medical test. It is the chain-of-
custody and evidentiary procedures that favor the regulated labs, not their medical
expertise.
Urine testing is the most common sampling technique and is the backbone of the DOT
system. There is a 23-step system for gathering the sample that deals with acceptable
techniques for ensuring that the specimen is not tampered with by the donor or the
collector. It has been said that only the federal government could require 23 steps to
tell someone to pee in a jar. However, this elaborate system ensures that the specimen
may be used as legal evidence without being an undue invasion of the individual
donor’s privacy. There are also provisions for other types of testing if the individual is
medically unable to provide a urine specimen.
Blood testing is the preferred method for medical management of drug problems. Most
emergency rooms have access to rapid screening for drugs when treating a known
overdose or a coma of unknown etiology. Blood levels are used for setting medication
doses in order to keep within therapeutic range. Blood tests are sometimes used as
evidence for making medical care decisions: “Is the Alzheimer patient taking his
digoxin?”
Unless it is being done at the patient’s request or under a specific court order, blood
testing for drugs can be legally problematic. It is more invasive than sampling urine,
breath, or hair. Most people resist having blood drawn purely for evidence and most
doctors are hesitant to force the issue. If there is a clear legal process, such as an
agreement that the county hospital emergency room (ER) will draw blood alcohols on
all drivers who are taken into custody, then the physician should follow the procedure.
If there is not an established legal procedure, then the doctor is wise to do only those
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