Sentinel - Winter, 2013-2014 Issue - February 26th, 2014
Welcome to the Winter Edition of the Sterling Sentinel Newsletter
Each quarter, we share important changes to the compliance landscape along with best practices, helpful resources and more. In this issue you’ll find updates on a new San Francisco ordinance that regulates criminal background checks and details on two upcoming webinars.
We welcome your suggestions for improving this newsletter– please email us with your comments.
Enjoy the Winter edition of the Sterling Sentinel.
Sterling Infosystems achieves background screening credentialing council accreditation
The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) announced that Sterling Infosystems has successfully demonstrated compliance with the Background Screening Agency Accreditation Program (BSAAP) and will now be formally recognized as BSCC-Accredited for its U.S. employment screening operations.
What Should You Know About a Diluted Drug Test?
An issue that often arises in workplace drug testing is that of a “diluted” drug test result reported by a testing laboratory or a Medical Review Officer (MRO), and how such a result should be treated by an employer.
In basic terms, a diluted test simply means that there is a greater concentration of water in a urine specimen than what would be expected for “normal human urine.” Though a laboratory may establish that a specimen is diluted, this does not necessarily mean that a valid drug test cannot be conducted.
A diluted result is generally reported as either “Positive Dilute” or “Negative Dilute.” If a drug test is reported as “Positive Dilute,” the urine specimen is positive for a drug or metabolite that the employer is testing for. Consequently, this is a failed drug test and can be treated as such without further consideration of the dilution. If, however, a test is reported as “Negative Dilute,” thereby indicating that there’s no positive detection of a drug or metabolite in the specimen, the employer must then determine how the dilution should be addressed. That question is the focus of this article.
Specimen Validity Testing
Obviously, consumption of water or other fluids will affect urine production in one’s system. If a donor (job applicant or employee) consumes excessive quantities of fluid prior to providing a urine specimen for workplace testing, the test may very well be reported as diluted. Many times, dilution of a urine specimen is quite innocent and inadvertent. Sometimes, however, dilution can signal an attempt by a donor to cheat the drug testing process by reducing the concentration of a drug/metabolite in the specimen. This deliberate effort to over-consume fluids is often referred to as “water-loading.” Of course, a donor can also dilute a specimen by directly pouring water into the specimen cup before returning it to the collector during the collection process. (Dilution should not be confused with specimen adulteration, which involves direct addition of chemical material to the specimen).
Before testing for actual drugs/metabolites, a laboratory will first test the urine specimen to establish that its content is consistent with “normal human urine,” and that there is no apparent attempt on the part of the donor to cheat. This is known as “Specimen Validity Testing” (SVT).
SVT analytical standards are established by the Department of Health & Human Services (HHS) and are necessary for federally mandated drug testing programs. With every specimen, SVT requires certified laboratories to:
- Determine the creatinine concentration
- Determine the specific gravity for which creatinine measures less than 20 mg/dL
- Determine the pH level
- Perform one or more validity tests for oxidizing adulterants
- Perform additional testing based on specimen quality, interference or other atypical result
For a urine specimen to be considered “normal human urine”:
- Creatinine must measure greater than or equal to 20 mg/dL.
- Specific gravity must measure greater than or equal to 1.0030.
- pH must measure between 4.5 and 9.0.
- No oxidizing adulterant(s) can be identified.
The creatinine concentration in the urine specimen is the primary measurement for identifying dilution in SVT (creatinine comes from the normal physiological breakdown of muscle tissue). If a urine specimen contains no creatinine, it is not likely to actually be urine. If a specimen does contain creatinine, this means that at least a portion of it is urine, but it is no guarantee that the entire specimen is “normal human urine.”
A urine specimen that is not otherwise invalidated will be reported as diluted by the laboratory if:
- Creatinine measures less than 20 mg/dL, and
- Specific gravity measures less than 1.0030.
An employer’s workplace testing policy should articulate the employer’s position surrounding receipt of a “Negative Dilute” result and how it will be treated. Testing performed under an employer’s own authority (e.g., not federally mandated) may, for example, require a donor to immediately submit to another urine specimen collection following the report of a “Negative Dilute” result (this is a common practice). In some instances, employers might require a recollection using an alternate specimen methodology, such as hair or oral fluid, while others may establish requirements similar to those used for federal testing, such as the DOT (Department of Transportation), which has very specific requirements for treatment of a “Negative Dilute” result.
Under DOT testing rules:
- If the creatinine level is greater than or equal to 2 mg/dL but less than or equal to 5 mg/dL, the MRO will order an immediate recollection under direct observation (meaning the donor must be physically observed providing the urine specimen).
- If the creatinine level is greater than 5mg/dL but less than 20 mg/dL, the donor may, at the employer’s discretion based on company policy, be required to submit to immediate recollection. If the employer does, however, adopt a policy of recollection:
- All “Negative Dilute” results with creatinine levels greater than 5mg/dL but less than 20 mg/dL must be consistently treated without variation.
- The employer must accept the second test result as the final test result of record.
- The recollection must not be performed under direct observation for reasons other than Return-To-Duty or Follow-Up testing (or unless other aspect of the collection so dictates).
- A donor’s refusal to submit to a recollection following instruction to recollect must be treated as a refusal to test (a DOT rule violation).
- Recollection can be limited to pre-employment or post-hire testing, or even to specific testing reasons (random selection, post-accident, etc.).
An employer’s decision regarding how diluted results will be handled should also consider other factors, such as safety risks associated with individual employee work functions (i.e., high or low risk) or treating a regulated employee differently than a non-regulated employee. Still, whether for employer-based or federally mandated testing, proper communication in the employer’s policy of how a diluted result will be managed is necessary for a consistent and effective workplace testing program.
Thursday, March 27, 2014 at 2 PM ET
Navigating A Bumpy road: EEOC Focus on Criminal History and Ban the Box Laws
Presenters: Pam Devata, Partner, Seyfarth Shaw LLP, and Paul Kehoe, Senior Counsel, Seyfarth Shaw LLP
Employers who conduct background checks need to know the lay of the land in light of increased regulation in this area. This program will focus on what the EEOC criminal history guidance requires, state and local restrictions regarding criminal history, specific options for compliance, and best practices for mitigating your risk.
Space is limited, register today!
Thursday, April 24, 2014 at 2 PM ET
Background Screening: The FCRA and State Law
Presenters: Joe Rotondo, Vice President of Compliance, Sterling Infosystems
The FCRA is a federal law that regulates how employers can legally obtain and use consumer and investigative consumer reports. Join us for this educational program discussing the complexities of the FCRA.
Register at https://bit.ly/AprilFCRA
Compliance City/State Updates
New San Francisco Ordinance Regulates Criminal Background Checks
The City and County of San Francisco, California, recently enacted a sweeping ordinance that limits requests for, and use of, criminal history records by employers, including city and county contractors and subcontractors. The ordinance will take effect in August 2014.
TThe ordinance prohibits employers from obtaining background reports or asking applicants or employees for criminal history information until after interviewing the applicant or extending a conditional offer. The ordinance also restricts the types of criminal history information that employers can consider, and requires an “individualized assessment” of such information.
California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont and Washington State have restrictions on the use of credit reports for employment purposes. Prior to ordering credit reports on an individual, employers in these states should ensure that the inquiry is legally permissible and that all necessary disclosures have been made to the applicant.
If the consumer reporting agency reports information that may be used, in whole or in part, as a basis for an adverse employment action (e.g., rescinding a conditional offer of employment), the applicant must receive notification before a final decision is made not to hire. Along with such notification, referred to as a pre-adverse action letter, the employer must provide to the applicant a copy of the consumer report and the Summary of Rights under the Fair Credit Reporting Act. During this period, the applicant can challenge the accuracy of the reported disqualifying information with the consumer reporting agency. If the applicant does not respond to the notification within a reasonable period of time (at least five business days is recommended), the employer may proceed with its decision to rescind the conditional offer and move to the next step. If the applicant responds in a timely fashion and contests, the employer should consider providing an additional couple of days to give the consumer reporting agency an opportunity to submit a revised report. If the applicant submits corrective or mitigating information to the employer and the employer is capable of analyzing it, the employer should do so. If the disqualifying information is corrected, the hire should move forward, but if the information is not corrected, the employer should provide the applicant with written notice of: (a) the adverse action; (b) the name, address and telephone number of the consumer reporting agency; (c) a statement that the consumer reporting agency did not make the decision and does not know why the decision was made; and (d) a notice of the applicant’s right to obtain the report and dispute the information.
* Please note that this information is provided for educational purposes only. You should consult with counsel in connection with your adverse action policy.