This is a particular risk in urine drug testing given the short half-life of drugs found in urine and given the ease with which a sample donor can flush his/her system with water.Īdditionally, comparing one drug test modality to another drug test modality (hair to urine, oral fluid to urine, etc.) is typically an apples-to-oranges comparison–particularly because of different “look back” periods.įor example, hair drug testing typically identifies drugs used in the seven to 90 days prior to the test. With a time delay, the negative second test ordered by the plaintiff is often merely the result of drugs dissipating out of the donor’s system. The time delay between the first and second drug test is often the explanation for why the sample donor failed the first test and passed the second drug test. Third, even the absence of finding any drug in the second sample, there are often legitimate reasons why the second sample was negative-reasons that do not call into doubt the scientific validity of the first drug test. Typically, the plaintiff’s sample is near the cutoff and/or distinct from the bulk of “no-drug” samples depicted on the chart. Where the drug test at issue in the litigation was run as part of a batch of drug tests, a chart showing the cutoff used, the drug levels yielded by the testing of various laboratory control samples, and the results of all the drug tests run in the batch at issue can be a very helpful way of showing why the plaintiff’s second negative drug test is actually a confirmation of the first positive drug test. As drug-testing laboratory directors love to say, “a negative test result does not necessarily mean that no drug was present in the sample.” In the absence of environmental contamination, there is no legitimate explanation for the presence of drugs in the second drug test, meaning that the second negative result supports the first positive result. (Such samples-with known drug levels-are tested to verify that the laboratory process is working correctly.) Specifically, the second drug test often shows evidence of drugs below, sometimes just below, the laboratory cutoff and/or more than spiked control samples run through the drug testing laboratory process. Second, a second drug test often provides evidence that supports the results from the first drug test, even where the second drug test is legitimately interpreted as negative. That is a helpful fact, because then the presence of any drug in their system-particularly in the second test-is persuasive evidence of intentional illicit drug use. Often, the plaintiff in false-positive drug testing cases will specifically disavow any exposure to drugs. This is typically a claim of exposure to secondhand smoke, or living with a drug user, but it is also sometimes claimed by a law enforcement officer who interacts with drugs in the course of his or her employment. First Stepsįirst, it is important to establish whether the employee or applicant is claiming that he or she was exposed to drugs in the environment. This article offers some helpful tips in defending against such claims. Often such a suit is brought after an employee or applicant fails one drug test and then passes a second drug test that they secured on their own. Regardless of the complexity posed by these changes, one thing remains the same: People will fail drug tests and sue, claiming that they never used drugs and that the administered drug test was faulty and/or discriminatory. Employers are navigating this increase, disability and discrimination issues, as well as state-level job protections for some medical and recreational marijuana use. Per the Quest Diagnostics drug testing index, the workforce drug testing positivity rate hit its highest rate in 16 years in 2019, with marijuana drug-test positivity showing double-digit increases. Drug testing is increasingly complicated for employers.
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