Instant tests reduce chain-of-custody concerns
Instant tests reduce chain-of-custody concerns
Positive tests still require careful confirmation
While there are several important issues to consider before using instant drug tests, the legal reliability of the tests is solid, says an attorney who has studied the issue.
It is important to study your state's laws carefully before using an on-site drug test. But if you are complying with the law, there is no reason to fear the test results could fail a legal challenge, says David Evans, JD, an attorney in Lawrenceville, NJ, and author of two books on the legal issues regarding drug testing.
"There is no reason to fear they will be challenged as less reliable than lab test results," he says. "Recent studies indicate that they are as accurate as laboratory tests. You're safe as long as you're following all the rules, just as you would have to do with lab testing anyway."
Evans explains that you must be careful to confirm any positive test results. Don't ever make decisions based only on the positive result obtained from an on-site test, he says. The negative results are enough to make decisions with no additional confirmation. But as with laboratory testing, positive results have potentially serious, negative consequences for the employee and that means you must get confirmation before proceeding.
The attorney also cautions that you should use only test kits that are cleared by the U.S. Food and Drug Administration (FDA) for marketing. While you may assume that any test kit offered for sale is cleared by the FDA, Evans warns that is not necessarily the case. Some test kits can be offered for sale while investigational, but Evans says you cannot be assured of clinical accuracy or legal validity until the FDA has granted clearance for marketing. When you are considering a company's on-site test kits, Evans suggests that you ask, directly, whether the kit has been "cleared by the FDA for marketing." Using that exact phrase will make it difficult for the company representative to avoid giving you a direct answer.
Also, you should ensure the test kits meet the drug detection cutoff levels established by the National Institute for Drug Abuse (NIDA) in Washington, DC, which are considered the minimum levels acceptable for any type of drug test. Ask the company's representative if the tests meet NIDA standards.
Shorter chain of custody is a plus
From a legal standpoint, one of the biggest advantages that comes with on-site drug testing is the shortened chain of custody. With any drug testing program, this is the most vulnerable component, Evans says. The testing specimen must be handled carefully to avoid contamination or misidentification, and there is a strict protocol for documenting that the specimen was handled correctly. Any mistakes in the chain of custody can invalidate the test results.
Chain of custody procedures still are followed with on-site testing kits, but the extent of the chain of custody is much less than with specimens sent to the laboratory. The chain essentially stops with the person who handles the test kit and reads the test results. If the test results are negative, that's the end of the chain of custody and all related paperwork. If the test results are positive, the specimen must be sent to the laboratory for further analysis, which means you have to follow the normal chain of custody procedures.
"Because these tests are intended for use when you expect a lot of negative results, you end up cutting down on your paperwork and the time your staff spend on processing the chain of custody," Evans says. "It's not that you have a lower standard for protecting the chain of custody. It's just that the specimen usually doesn't leave your office, and that means there is substantially less work required to ensure that the chain of custody is protected."
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