Urine analysis

Drug testing programs operate in two general contexts: to deter drug use, or punish it; and, to assist in treatment and rehabilitation. Programs may administer urine tests periodically, randomly, or only in response to accidents or incidents in which drug use is suspected. Privacy interests differ between settings, but their combined effect is a generalized form of social control that is based on everyday surveillance of bodily fluids once thought to be private. Positive tests in workplace drug testing programs may lead either to job loss or disciplinary action, or to enrollment in employee assistance programs. Consequences are especially negative in social services or criminal justice settings, where the results of a positive toxicology screen may lead to loss of child custody or even of liberty itself.
Urine testing is currently the most widely accepted and practiced form of testing used to determine whether individuals have recently ingested illegal drugs. More than 90 percent of drug testing is accomplished via urine testing as opposed to one of the “alternative” testing modes (saliva, sweat, or hair analysis). Civil libertarians resist urine testing on privacy grounds, citing both the act of urine testing itself and the use of findings as incursions into the protected zone of privacy. Despite their concerns, urine testing has been institutionalized throughout several major social institutions in the United States, bringing the habits of millions of people under surveillance. Two conditions enabled urine testing to become widespread in the United States: judicial acceptance of the results and administrative changes. Testing is most common in a few economic sectors, most notably transportation, which exhibits the highest rates of random urine testing.
Since its humble beginnings in the 1970s, urine testing has become a $5.9 billion industry. Individual tests currently cost $25 to $32. The industry has spawned a professional association, the Drug and Alcohol Testing Industry Association, with more than 1,200 members and an allied industry to analyze the results. Laboratories that analyze the results of urine tests are subject to regulation by the National Institutes of Drug Abuse (NIDA), which operates a national certification program to ensure that laboratories comply with mandatory guidelines. The industry’s largest customer is the federal government, seeking to comply with its own drug-free workplace regulations.
Urine tests establish the presence of metabolites, not the presence of drugs themselves. Its scientific basis was established in the late 1960s, but not until the early 1980s was EMIT, an enzyme-based assay still in use today, accurate enough for organizations to risk court challenges in response to its use. Accurate urine testing requires two steps. First, preliminary screening through radioimmunoassays, enzyme immunoassays, fluorescence polarization immunoassays, and/or thin-layer chromatography is used to identify samples that may be positive. The second step uses a more specific methodology: gas chromatography with mass spectrometry (GC/MS), which confirms or disconfirms the results of the first step. Thus, there is room for error and interpretation. Enzyme-based urine testing often yields false positives, and there is always the possibility of environmental contamination, tampering, or human error. Urine tests are generally used to test for marijuana, cocaine, methamphetamine, PCP, and opiates. They are generally not used to screen for legal drugs such as alcohol or tobacco. Drug tests cannot document habitual drug use or impairment on the job. The window during which episodic drug use remains detectable varies by drug and by the testing technology used. The validity of the results also varies. However, the technology itself has become less cumbersome and expensive over time. Today, urine testing kits are relatively easy to use and accurate compared with their antecedents. Their ease of use has enabled the extension of surveillance even further into the population.
Although urine testing began in drug treatment settings in the late 1960s and early 1970s, the U.S. Armed Forces first scaled it up. The military turned to mass testing due to problems with heroin addiction in combat units during the Vietnam conflict. Veterans’ organizations and unions challenged the Army Drug and Alcohol Abuse Prevention Program in a series of cases in the mid-1970s. The first court challenges led to recognition that urine tests were a form of “search and seizure” that implicated the Fourth Amendment of the U.S. Constitution. Fourth Amendment cases concern “warrantless” searches. Urine testing programs are considered constitutional, despite the routine testing of individuals who are under no suspicion of drug use (and where there is no “probable cause”). The Supreme Court enabled broader testing of workers after accidents in Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989). The courts implemented “balancing tests” to ensure that testing is conducted for purposes other than criminal prosecution (which would contradict the presumption of innocence). These tests seek to “balance the individual’s privacy expectations against the government’s interests” (National Treasury Employees Union v. Von Raab, (1989)). Government interests were found to outweigh individual privacy interests in Von Raab, which involved U.S. Customs Agents.
The principal at issue in cases of this kind is whether a greater social good outweighs an individual’s reasonable expectation of privacy. Urine tests are considered legally “reasonable” infringements on the privacy of some groups, such as U.S. Customs employees, who have a “diminished expectation of privacy in respect to the intrusions occasioned by a urine test” (National Treasury Employees Union v. Von Raab, 489 U.S. 669 (1989)). Opinions in these cases generally interpret urine testing as a way of detecting fitness for duty and soundness of judgment.
Military urine testing programs survived their earliest court challenges, so the stance behind them was later extended to the federal workplace under the direction of Reagan administration drug czar Carlton Turner. Eventually, urine testing programs made their way into transportation, health care delivery, and educational settings. In 1986, President Ronald Reagan issued Executive Order 12564, which required federal agencies to urine-test with the goal of guaranteeing a “drug-free federal workplace.” Urine testing became commonplace in federally regulated U.S. workplaces and educational institutions, and later in medium to large private-sector organizations. When the American Management Association (AMA) first surveyed its members’ corporate drug policies in 1987, only 21 percent had testing programs. Despite the expense of testing, that figure rose to 81 percent of major U.S. firms by 1996. Additionally, school districts began urine testing programs, and they also have survived challenges.
In 1997, for the first time, the U.S. Supreme Court demarcated a boundary between permissible and impermissible urine-testing programs (Chandler v. Miller, 117 U.S. 1295 (1997)). Permissible searches are those that are based on individual suspicion as opposed to subjecting an entire “suspect class” to blanket testing. Lack of clarity about what was permissible, and the overall expense of programs that have relatively low rates of success at identifying drug users, have deterred some employers and school districts from continuing their urine testing programs. The effects of urine testing programs on workplace safety and productivity have been negligible. Despite its presence in the military and the schools, the bulk of urine testing continues to occur in workplace settings due to federal support and subsidies for testing programs there.
Workplace drug testing may take place at several points: during the hiring or, “pre-employment” phase; once an individual is on the job, particularly if there is an accident or safety-related incident that provokes a higher level of scrutiny; or, through random testing once on the job. The criminal justice system is another locus for urine testing, especially for individuals involved in community corrections programs and drug courts, where urine testing has become increasingly common. Medical institutions also have begun to extend routine urine testing beyond diagnosis and monitoring for infection to testing for illegal drugs in the case of pregnant women. The city of Charleston, South Carolina, developed a program that led to pregnant and recently postpartum women being charged with drug crimes based on a single positive urine test conducted in the routine course of their medical care. The Charleston Police Department had never arrested a male patient and charged him with possessing drugs on the basis of a single positive urine test. The U.S. Supreme Court, however, ruled that urine-testing pregnant women without their knowledge or consent constituted an unlawful search and seizure that violated the Fourth Amendment (Ferguson v. City of Charleston, 532 U.S. 67 (2001)). The outcome of this case suggests that there are times when privacy interests outweigh state interests.