Drug Screening

by Evil HR Lady on July 25, 2008

We pre-employment drug screen all applicants. Manager started someone, against my better judgment, before we got drug screen results. Of course, came back positive for Marijuana. Manager told applicant to stay home today, but this manager is in love with this applicant and wants to make exception to policy to keep them on board. Our policy says that the applicant can have other half of their specimen tested at their own expense and if it comes back negative we reimburse them and they can start working for us. Applicant says they don’t smoke, but their husband does and that is why she probably tested positive. Manager wants to allow her to continue working and test her again in 30 days with her continued employment contingent on the results of that test.

Let me start by saying that I have never taken an illegal drug in my past and I don’t view it very highly. I try not to judge folks, but my history does affect my judgment so I am seeking outside advice. Also, to me Marijuana, while pretty widely accepted, is still Illegal. My thoughts are to follow policy and terminate them immediately and be along our merry little way. However, what are the pluses and minuses of making the exception. Of course, our Regional Manager brings it to my attention that we have made this exception in the past, but it was before my time here. Another point I gave the manager was that this person, while they may not be smoking it themselves, is living with someone that does. If the cops break down the door and bust them, chances are they may both be going to jail and now we have a whole other situation. My gut says follow procedure and do not make exception and set a precedent.

I’m with you, 100%. You really have no way of knowing if the person is lying or not, but do you want to start down that road? The drug screen is what it is. She may well be telling the truth, but how can you really believe that? Sure, I wasn’t the one inhaling…

Now, I did watch a Mythbuster’s episode about poppy seeds and that was rather frightening. It made me believe that drug testing isn’t quite so straight forward as we’d like to think it is. (HR according to Mythbusters…hmmm.) But, the problem you run into is that if you make one exception, what’s going to be the rules around the exception policy? (Horrors–rules for exceptions? I’ve been in HR way too long.)

But, yes, rules for exceptions. Think about how the rule would have to be written to allow this: “If candidate says, ‘that test gave a false positive’ or ‘someone put something in my drink’ or ‘it was just a poppyseed bagel’ then re-test in 30 days.” See, it sounds kind of silly.

Truth be told, I’m all in favor of meeting the needs of the individual–you want flex time, part time, telecommuting, I’m all there. You want to work with a positive drug screen? Hmmm, not so much.

The biggest problem in granting an exception is the appearance of favoritism, or discrimination. So, if this is a white woman who tested positive and you let her re-test in 30 days because the manager loves her, what happens if the next person to test positive is a so-so candidate that you made an offer to because you were desperate–and happens to be a black male? Oh joy. See you in court.

Now, as for drug testing in general–as I said, I watched Mythbusters and learned that a relatively small amount of poppy seeds can give you a false positive. Can walking through a smoky room where cigarettes aren’t the vice of choice lead to the same result? I don’t know. You might want to check with your vendor to ask what level of sensitivity you want to pick up. And make sure your vendor contacts the candidates for a list of the drugs they are taking legally. (Yes, I’ve had a candidate told he flunked the drug test only to find out that he was taking legally prescribed Ritalin. He’d tried to tell the vendor, they wouldn’t listen. So they just reported back to the company that he’d failed. HR had to call the vendor back, who then called the candidate’s physician and all was well–except he was unnecessarily embarrassed. I wasn’t in charge of the vendor contract, but if i had been, they would have been fired.)

But for now, I’d say, “I’m so sorry. Good luck with your job search.”

{ 39 comments… read them below or add one }

class factotum July 29, 2008 at 4:19 pm

Evil, did Mythbusters say that poppy seed will make someone test positive for marijuana? Or for opium and heroin?

PS I totally agree with you. Drug policy is not a place for flexibility. (Although I don’t see why someone’s drug use is relevant for non-manufacturing/driving jobs unless you think you’re going to be stuck paying for someone’s very expensive rehab, which is a legitimate reason to have drug testing, so I guess it is relevant after all, but then let’s test the family, too, or better, stop paying for rehab under company insurance so the rest of us don’t have to pay such high premiums. Thank you, state-mandated benefits.)

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Evil HR Lady July 29, 2008 at 4:33 pm

Just opium. But, most drug testing places (that I’ve worked with) simply come back with a pass/fail, not a “this is a list of what the person is taking.”

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Anonymous July 29, 2008 at 5:21 pm

Whenever I follow my gut, in the long run, I get a pat on the back. If I question my gut, and get bullied or convinced to do something other than what my gut says, I end up punching myself in the face (figuratively, of course).

Policy is policy is policy (this is relatively easy to follow without being the bad guy). I’d explain to the manager that a positive is a positive, and if the woman would like her original specimen retested, she’s more than welcome to pay for it (per the policy you guys already have). She might have to dip into her husband’s pot fund, but if she wants to take on the expense, it’s her call. From what I’ve heard (and remember of my college days), those tests don’t pick up minute teensy amounts of drugs from walking through rooms. They pick up actual usage…especially habitual usage…not one hit from a party three weeks ago, against one’s better judgement. I’m not condoning occasional drug usage on the job by any means, but I’m just saying that my guess is, if she was around it enough to test positive, she probably was mildly altered. I’d say follow your policy and explain to the manager that your hands are tied. Good luck!

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Anonymous July 29, 2008 at 6:01 pm

lol funny sheeple…”fire them if it is a plant that grows in the ground and harms no one, but if a doctor gives them a drug that may cause suicide and shooting up the workplace…that’s fine just have a prescription”…do you guys ever get tired of being such squares?

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Anonymous July 29, 2008 at 6:30 pm

I routinely send people for pre-employment drug tests. The same story has been told to me many times – “I was at a party where other people smoked but I didn’t”, etc. I have repeatedly been assured by our lab that simply being in a room where marijuana is present will not show up as a positive result. Of course, we use a 5-panel urine test and I have no idea if other types of tests are more/less sensitive. (And BTW, Evil, my results do list what they came up positive for – I guess it depends on the company.)

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HR Minion July 29, 2008 at 7:21 pm

Our drug policy outlines what things may cause false positives (including poppy seeds) and we let them disclose it before they take the test in case something comes up. We also clearly outline what is an acceptable level of whatever and what is not. Needless to say, it is a very detailed policy. Because of that and the self-disclosure sheet, if it comes back negative it’s pretty much thanks but no thanks.

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HR Wench July 29, 2008 at 8:01 pm

Terminate. Next?

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Anonymous July 29, 2008 at 8:44 pm

If you don’t terminate this person, you no longer have an enforceable drug policy. I agree with “hr wench”…..terminate and go on to the next issue.

Mike Doughty

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Ask a Manager July 30, 2008 at 12:42 am

Not the point of the post, but I don’t get drug testing for positions that don’t involve safety. (And actually, even then, I say use performance tests, which tell me if the person is impaired right this minute, from drugs, alcohol, lack of sleep, or whatever. I don’t care if someone smoked pot last weekend on their own time. None of my business.)

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William the Coroner July 30, 2008 at 1:29 am

Being in a room with someone who smokes cannabis will not, repeat not, NOT EVER, cause a false positive THC result. It just doesn’t happen. A person has a positive drug screen for THC because they used in the past 30 days. Period.

You’ve just told me this person is both a liar and a user of illegal substances. Just the person I want to hire. /snark

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Evil HR Lady July 30, 2008 at 1:46 am

Since William is actually someone who would know that, I’ll believe.

And Ask A Manager–I’d be hesitant to hire someone who is willing to break the law when it suits him. I also agree with you that sleepiness can be a huge problem, but I don’t know a reliable way to deal with that.

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Anonymous July 30, 2008 at 1:50 am

In my experience alcohol abuse, cigarette smoking, and abuse of prescribed medications are much more detrimental to an employee's performance than marijuana smoking ever has. In addition, the costs for rehabilitation for alcohol & prescription drug abuse are exorbitant. I've never seen anyone in rehab for smoking marijuana. If the job doesn't have any safety concerns then your drug policy is completely backwards.

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MsPinkSlip July 30, 2008 at 2:01 am

There is also case law supporting applicants regarding drug testing for positions that are not safety sensitive. I hate to sound so HR but policy is policy for this one. This person should not have been able to start before her test came back. Rescinding an offer is much easier (less paperwork) than termination.

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Jill April 23, 2013 at 7:04 pm

Do you have the case law reference? I would love the read it.

Thanks

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Krupo July 30, 2008 at 5:21 am

The US hysteria over drug testing is another reason I’m happy to stay in Canada, I must say.

I think you’re a little off the mark today, though, Evil HR Lady.

The correct “evil” solution would be to fire the employee for being too dumb to replace their urine with a “clean” sample. Their inability to do so demonstrates a clear lack of initiative (and foresight) which will speak poorly of the performance you can expect from them.

Man, I read too much Dilbert… :p

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Melinda July 30, 2008 at 6:08 am

I’m not sure I would want to work with someone who knows her spouse smokes an illegal drug. And I’d be very surprised at a person who tolerated/condoned that behaviour in their spouse and didn’t participate at least on some occasions. And policy is policy, that’s why you have it – so this doesn’t happen. The Manager should also be reprimanded for not following said policy and causing embarrassment to themselves and the company.

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Anonymous July 30, 2008 at 3:55 pm

EHRL wrote:

>I'd be hesitant to hire someone who is willing to break the law when it suits him.

***
Oh, please. Do you always follow the speed limit? Or only when it suits you?

If you speed, you're much more dangerous to society than a pot-smoker; you're also equally non-law-abiding.

BTW, here in Silicon Valley, some of the most brilliant and most productive workers I know are potheads. Personally, I don't smoke…but looking at these guys, maybe I should!

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Anonymous July 30, 2008 at 4:18 pm

I agree with EHRL here. I would be hesitant to hire someone who freely breaks the law, and no, I don’t speed.

Further, in terms of societal importance, our legislatures (whether right or wrong) have made it very clear that possession and use of drugs, including marijuana, is a much more serious offense than speeding.

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Dwain July 30, 2008 at 6:39 pm

Okay, sorry it took so long for my response. Thank you all for the input. Here is the update.

I thought about it a lot and pretty much had the same opinion as everyone here. I told the Manager that we were not going to allow this person to continue working and we were following our policy to the T. My main priority was maintaining the integrity of our policy and avoiding discrimination claims on rules about exceptions. (I like that one EHRL) Talked to the manager a few days later and the Manager was completely fine with it. She said she hadn’t heard from the applicant since she told her that she might not be allowed to come back. The applicant probably didn’t want the job badly enough to follow up.

We have the drug policy in place because of our warehouse employees driving forklifts around our facility. We cover all employees instead of just carving them out.

Also, as a side note the applicant had told the manager that they have a small baby at home and I was thinking that if the father was smoking and she was there to get a contact high, where was the baby? Doesn’t sound very responsible to me.

Also, I have to comment on one of the anonymous posters above that said that a marijuana is just a plant in the ground that doesn’t hurt anyone. You could not be more wrong. I have seen too many friends, many much smarter and talented than I will ever be lose all drive and motivation to succeed because of marijuana. They may not be physically hurting themselves (up for debate in and of itself) but they have severely damaged their chances for a successful life. Just my $.02

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Ask a Manager July 30, 2008 at 9:12 pm

Dwain, there are responsible and irresponsible marijuana users, just like there are responsible and irresponsible drinkers. I know plenty of people who do use marijuana or have used marijuana without ill effects, and some who clearly couldn’t handle it well. I suspect plenty of people you respect use marijuana and you simply don’t know it, because it doesn’t impact their lives in any way you’d pick up on.

By all means, enforce your policy consistently, to ward off discrimination claims, but let’s not fall into unwarranted hysteria.

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Infamous HR Guy July 30, 2008 at 10:06 pm

This is a tough position to be in, but I’d agree with those who say to terminate for failing to pass the required drug screen. You have the policy in place to create a work environment free of drugs. For all you know the “managers pet” could be your biggest nightmare over the next two years.

To our Canadian friends, walk a day in the shoes of an HR person in California where your every move could bring a lawsuit. All it takes is this “managers pet” to blab about failing the drug test but keeping her job to the wrong person and you as the HR person have created a monster.

TERMINATE! If said manager gets the executive approval to keep the employee you must get this sent to you from the overriding parties stating their decision overrides yours. This way if it ever goes to court, your tail is covered.

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Anonymous July 31, 2008 at 7:52 am

How does a drug test deal with states where Marijuana is legal for medical use? In states like California, marijuana is prescribed by doctors to mitigate symptoms of a severe medical problem in a protected class. For example, If employee X fails a drug test for marijuana because she has a legal prescription to help with the nausea from AIDS medication, is the company then in an actionable position for forcing her to out herself? Or does the policy then demand firing her for having AIDS and being in pain?

I don’t know much about HR, but I’m curious what y’all think.

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Anonymous July 31, 2008 at 12:45 pm

Anytime someone has a prescription for a medicine they test positive for, they should not be fired. I would think that is standard practice whether the prescription is for legal marijuana or vicodin.

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Dwain July 31, 2008 at 3:20 pm

In response to Ask a Manager I would agree that there are very high level folks out in the world that use Marijuana, I do not have my head stuck in the sand. I was simply replying to the fact that anonymous posted that it was a completely harmless drug. I would have to disagree with that on some level. I think using the word Hysteria in response to my post is a bit of a stretch!

Our testing program is set up so that when someone tests positive it is automatically forwarded to a Medical Review Officer. The MRO contacts the applicant and informs them of their positive result and inquires if there is a reason why they tested positive. If it is a medically prescribed drug, they send the RX to the MRO and he makes the call. If it is medically necessary, then the MRO reports a Negative Drug Screen to us. We actually never get the results as a Positive if it is a prescribed drug. It is only reported to us as a Positive test if the MRO finds that it isn’t medically necessary.

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Anonymous July 31, 2008 at 7:29 pm

Thanks for the info, dwain.

It seems like the MRO provides a decent balance between allowing legitimate medical uses of Marijuana and tearing down the entire anti-drug policy. Of course, if the MRO makes the wrong call, it could still end up in a lawsuit, but that’s true of almost anything. :-)

In my situation, medical marijuana is prescribed because traditional painkillers and atypical antipsychotics don’t mix. But, if I remember the law correctly, mentally ill people are not a legally protected class, which means I could still be fired for following my doctor’s orders.

Sigh.

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Kevin July 31, 2008 at 7:52 pm

Being mentally ill could be a protected class under ADA. If your condition is a recognized condition by the medical community (I believe it has to be a book of conditions published by some psychiatry society or something)then you do have protections under ADA. Does that protection extend to exempting you from a drug policy? That’s debatable.

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VPofHR August 3, 2008 at 1:03 am

Deaths per year resulting from alcohol: 100,000
· Deaths per year resulting from tobacco: 430,000
· Deaths per year resulting from aspirin: 180- 1000
· Deaths per year resulting from legal drugs: 106,000
· Deaths that have ever occurred in direct result of Cannabis: 0 (that’s right zero)

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Olivia August 4, 2008 at 6:41 pm

One thing that hasn’t been mentioned here:

This case highlights the fact that you should always have policies that MAKE SENSE from a business perspective. If you’re a company who employs people who do not affect the safety of others, then why would you want to interfere with their private lives? In this case, the worry is that drugs might endanger others, which is a good reason, and should not be ignored.

Any policy that exists should have bedrock reason for existing, and therefore must be followed consistently, in fairness to all.

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Ivory August 7, 2008 at 2:40 pm

Deaths that have ever occurred in direct result of Cannabis: 0 (that’s right zero)

These folks would seem to disagree.
Cannabis and suicidal behaviour among adolescents: a pilot study from Trinidad. TheScientificWorldjournal [1537-744X] Maharajh yr.2005 vol.5 pg.576 -85

Here's a paper that shows that frequent marajuana users are twice as likely to become schizophrenic and if they are bipolar, they are more likely to become manic. Cannabis and psychiatric disorders: it is not only addiction. Source: Addiction biology [1355-6215] Leweke yr.2008 vol.13 iss.2 pg.264 -75

The money quote from this abstract: early onset of cannabis consumption might have lasting consequences on cognition, might increase the risk for neuropsychiatric disorders, promote further illegal drug intake and increase the likelihood of cannabis dependence. From -Puberty as a highly vulnerable developmental period for the consequences of cannabis exposure.
Source: Addiction biology [1355-6215] Schneider yr.2008 vol.13 iss.2 pg.253 -63

This article notes, "Chronic inflammatory and precancerous changes in the airways have been demonstrated in cannabis smokers, and the most recent case-control study shows an increased risk of airways cancer that is proportional to the amount of cannabis use." It also has a nice summary of the evidence that cannibis use increases the risk of being the culpable driver in a traffic accident. Title: Adverse effects of cannabis on health: an update of the literature since 1996Progress in neuro-psychopharmacology & biological psychiatry [0278-5846] Kalant yr.2004 vol.28 iss.5 pg.849 -63

This what what I found after a five minute search of the literature. Having read some, marajuana seems to have the combined risks of drinking alcohol and smoking cigarettes. To call it harmless you would have to be – well – smoking the good stuff.

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Anonymous August 7, 2008 at 6:23 pm

Meh – so what happens when it’s legal? In a lot states a small amount in possession had be reduced is a small class misdemeanor. The same as a speeding ticket. No jail. No raid. Just a fine.

What a huge waste of money and bureaucracy. No wonder the US is in shambles.

btw – i can do a five minute search and find just as many scientists and papers to debunk everything you posted…I just have better things to do with my time. You can check out NORML.ORG and find all the info you want.

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Anonymous August 8, 2008 at 11:00 am

To Ivory: “Might have”, “might increase” and they were talking about what effects early onset of cannabis use has… Any drug that you start using at an early age can be bad. And all that you posted was indirect results of usage, not direct results. And yes, it’s true that smoking isn’t a good way to use it since it’s not good for your airways (but much less harmfull than smoking tobacco, since you don’t smoke it many times everyday). You can always eat it and get reduced risks, or smoke it through water.

It’s an amazingly harmless drug compared to alcohol… Actually I think alcohol is one of the worst – you can see it well here in Finland where alcohol is the drug everyone uses.

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Anonymous August 9, 2008 at 3:10 pm

Ivory, this is the problem that comes from half-knowledge and cherry-picking from scientific studies for ideological purposes. A comprehensive review of the psychosis risk literature will show you that even though there seems to be an increased risk for psychosis in potheads, there is no increase in psychosis in the general population concomitant with general pot use. Pot does not cause psychosis, it aggravates it. It can only make people more psychotic if they already are. So psychotic people probably should not smoke pot and we can add that to the long list of things that psychotic people probably shouldn’t do.

Along with drinking alcohol, which is, while arguably far more damaging for both psychotics and the general population, legal.

There is a very long list of legal things that ruin your lungs, make you a dangerous driver, or a more dangerous co-worker, than marijuana. Marijuana was made illegal by a government official (Harry Anslinger) who was a racist and hungry for power. He was what would now be the head of the DEA. Along with Hearst he put out a lot of inflammatory articles in the 1930′s about marijuana turning teenagers into crazed sex-killers and convincing blacks and latinos into thinking they were “as good as the white man”. So far some twenty million americans have been sent to jail on marijuana related offenses, 11 million since 1990. All of them are having their lives ruined because of that one man and his army of patsies enforcing his arbitrary rules.

Congratulations on joining his flock.

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PE Mommy August 11, 2008 at 12:14 am

I used to work for the Army in running the drug testing program. Military drug testing programs are run three phased. 1st phase – detects a drug (sudafed can set off for methamphetamines). 2nd phase scans for what kind of drug and eliminates otc that can cause it (ex sudafed). 3rd phased tests the nanograms of it in the sample.

Yes poppy seeds can cause someone to test positive for opiates. However, most drug testing companies know this and have adjusted the sensitivty levels. However, living with someone that smokes, attending a party with smoke. The answer is NOPE, no way. You were smoking and got busted.

Oh and if there is something someone is taking and it comes back for it (migraine meds), then it is subject to a medical review and the medical director will clear them based on a valid rx. Taking your wife’s or dh’s rx is not a valid rx.

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John August 22, 2008 at 12:49 am

A few comments:

1) military drug testing and for-profit drug testing have little to do with each other. FP is based on lowest cost per false negative: so they don’t get sued by their clients. If they can use OTC tests, believe me, they will.

2) Whether Marijuana should or should not be legal isn’t the point. Nor is whether alcohol is worse. For most companies, policy is policy, as it should be. Possibly a better/more tolerant policy could be written, but it’s not HR’s job by a long shot.

3) If the company takes federal money, they are mandated to test across the board, not just safety-related.

4) Many drug tests will come back false positive (even at 1/10,000,000 chance, that’s still a lot of people, and most testing is closer to 1/10,000 false positive), and B-sample testing may or may not be any better.

5) You had better believe that a good test can spot co-incident marijuana use. Else you would have a drug test that only screens heavy use, which isn’t much use. Long-term use is generally not discernible in the urine: you need skin or hair samples for that.

6) If you want to know how accurate your vendor’s test are, try to get them to give you the actual values, and then YOU have the B-samples re-tested. I guarantee 2 things: your vendor will resist it to the point of quitting, and you will never look at tests the same again.

I worked for a lab developing drug tests. WE weren’t tested, because we knew how bad the tests were….

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M. Hinman August 22, 2008 at 3:50 pm

Common Misconceptions About Drug Testing

Hello all! I operate a drug/alcohol collection facility. I have read a great deal of information here on this blog and find it interesting that most people are very uneducated about drug testing. Even those that claim to have worked in a “drug testing place” seem to have it all backwards.

1. Mythbusters was right – poppy seeds can create a false positive. What they don’t tell you is that GC/MS (that’s Gas Chromatography/Mass Spectrometry) will see it as a different opiate from, say, Heroin or Morphine, or Hydrocodone. They also don’t tell you that an MRO (Medical Review Officer) will weed out any false positives. In addition, it does have to reach the federal cutoff concentration limit to be considered “positive”, and that is 2000 ng/mL of the metabolite, not the parent drug. Limits can be found here: http://www.fmcsa.dot.gov/rules-regulations/administration/fmcsr/40.87.htm

2. Second hand positives: You’d have to be closed up in an airtight space with pot smokers while everyone else smoked pot constantly before you’d show positive on a real drug test. I say ‘real’ drug test, because some testing procedures out there are not FDA approved, or they may be done in labs not certified by the HHS or SAMHSA. Second hand smoke at a party will not make you positive – but it’s not advised that you be around it anyway for your own health and well-being.

3. They’ll want to watch me pee. I doubt it. I know I don’t want to. This only happens on DOT tests, and only if your first specimen is “cold”, that is not between 90-100F. Then, despite what Hollywood may tell you, it has to be a person of the same gender conducting the observation on the second collection.

For more information on what collectors, labs, and MRO can and cannot do, look into 49 CFR Part 40.

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Kat The Engineer August 27, 2008 at 1:57 am

I work on a large construction site with a policy of testing all employees before they start (including office staff). If they refuse or fail the drug screen, they don’t get the job offer. This is stated in the letter of offer.

The results specifically list any drugs found. The results are positive only to an impairment level, i.e. it won’t show up if you had a quick drag at a party on the weekend but it will show up if you took something last night as it is still in your system. If you are on medication, you can provide a copy of the prescription to offset certain positive results.

Anyone dumb enough not to avoid drugs the night before their medical doesn’t deserve a job in my company. No exceptions. An interesting point is that 25-30% of our candidates fail their drug screen (and that includes people of all professions).

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????? May 22, 2012 at 12:29 am

okay i have a question so is it legal for someone to tell someones co- workers that they failed a urine test before the results are back and without consulting with that person??

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Evil HR Lady May 22, 2012 at 11:07 am

Most likely. Depends on your state, what you signed and blah, blah, blah. Stupid? Yes. Inappropriate? Yes. But since the results weren’t back, it sounds like it was just being mean.

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Vincent August 26, 2013 at 9:48 pm

ALL drug-screening is EVIL, especially since it has been PROVEN that Marijuana is the safest, most natural substance known to man. Now, it’s obvious to me that the “evil lady” never “taken an illegal drug in my past and I don’t view it very highly. I try not to judge folks, but my history does affect my judgment so I am seeking outside advice”. Now, she say that she taken an illegal drug in my past and I don’t view it very highly. I try not to judge folks, but my history does affect my judgment so I am seeking outside advice”. Oh, I see, she tries “not to judge folks”, but her whole tirade is a JUDGEMENT by someone who has “never” smoked herb in her entire life, so she is judging from ignorance!!!!!I own a small business, and while I was on vacation with my family, I entrusted my day-to-day operations with a (former) manager. He is as ignorant as the “evil lady”, and while I was gone for a month, this numbskull TRIED to institute a drug-testing program AGAINST my better judgement. He tested two of my BEST workewrs, and they tested positive for Marijuana use. He then fired them while I was away. I received calls from the two of them, and I told them to keep cool, and I will deal with the situation when I return. I had to cut my vacation early and return home, and straighten the mess out. I reinstated the two workers, and I gave them a raise. My Manager? I fired him outright, and I made sure that he would NOT be able to collect Unemployment Insurance.

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