The Bush Administration has proposed changes to the eighteen-year old drug testing -program to which approximately 400,000 federal employees are subject.  Those changes are currently in the midst of a ninety-day comment period, which will end on July 5, 2004.  Many believe that this significant tinkering with the federal plan, reflecting new technology as well as safeguards for employees who test positive, will create a regimen that will serve as a model for private sector businesses.

    Major changes to the program include the addition of hair, sweat, and saliva testing.  Under the current regulations, only urine may be tested.  The modifications are a response to concerns over the ability of scientifically engineered additives to counter the latest urine testing methodologies.  One need only check the Internet for evidence of the thriving industry that has evolved for the sole purpose of foiling the detection of drug use through urine samples. Advocates for the changes believe that the testing of hair, sweat, and saliva will all but eliminate the ability of a test subject to mask illicit drug use. 

    Organizations representing federal employees have raised objections and concerns over the higher costs and allegedly poor accuracy levels of the new tests.  Each of the three will cost more than urine testing, with the analysis of hair being the most expensive.  However, the hair test requires that the individual accepting the sample actually remove it from the subject’s head.  Accordingly, there is virtually no opportunity for the substitution of the hair of another. 

    Opponents of the new tests have raised concerns over their accuracy.  The government’s response has been to require the splitting of any hair, sweat, or saliva samples into two parts.  The first part will be tested by a government-selected laboratory.  The second will be available for subsequent testing in cases where employees wish to contest what they contend was a false positive.

    Once finalized, the federal program will no doubt become a model for private sector employees.  Many have, to date, been reluctant to develop and then seek state approval of their own drug testing programs.  In some states, including Maine, the development and approval process can be a daunting one.  The revisions to the federal policy, particularly the adoption of state-of-the-art technology along with the second test safe harbor, will make it difficult for a state to deny approval of policies that are submitted by private employers and that are based on the federal model.  Also, the defense of wrongful termination lawsuits based on the new forms of testing will obviously be easier due to the legal precedent that will be provided by the reliance of the federal government on such testing.  A finalized version of the rules is expected to be in place by the end of the year.