Michigan legislators want to make it a crime to use fake urine or other means to cheat employer drug screens.
Here’s a scenario Alister Senters said might lead a customer purchase a bottle of fake pee from the Tobacco Shoppe, a vaping and tobacco store he manages in Lenawee County’s Adrian: A prospective employee gets the call from human resources. You’re hired, they’re told. But one more thing: you need to pass a drug screen. And we’re testing for marijuana.
THC, the psychoactive ingredient in marijuana, may be detected by urine screens for up to a month after the user’s high has faded, and it’s been legal for any adult in Michigan to buy, grow, transport or use since 2018.
When people consider the possibility of losing a prospective job over legal marijuana use, Senters said many are willing to subvert the test with fake urine or other masking products.
“Fake urine is 100% the most popular,” he said, calling it “asinine” that employers even test for THC.
Some Michigan lawmakers hope to put an end to fake urine and other drug-test-skirting tactics with Senate bills 134 and 135 that would make it a misdemeanor punishable by up to a year in jail and a $1,000 fine for someone to “distribute, deliver , sell, or possess with intent to distribute, deliver, or sell a drug masking product.” The punishment is upped to a felony carrying by up to five years in prison if the products are being sold commercially for profit.
Senate Bill 134 has passed in the Senate and is headed for a vote on the House floor.
“Unfortunately, some people have taken steps to mask their drug test results in their workplace,” said Jamie Callahan, who spoke on behalf of SB 134 sponsor Sen. Curtis S. Vanderwall when the bills were discussed at the May 19 House Health Policy Committee meeting. “And this has led to the rise of a market where some substances can be acquired to skirt the test.
“I think we can all agree that we don’t want people endangering others on the job or even themselves and we would hate to see someone get hurt because they faked their drug test.”
Beating the test
Synthetic urine is sold under brand names like UPass, Synthetix5 and Quick Fix with descriptors like, “novelty” or “fetish urine,” possibly to obscure the intended use, especially in states where masking products are banned. Senders’ shop sells it for about $20 and it comes in an easy to conceal bottle that may be strapped to the thigh or stuffed in underwear and pockets.
The liquid appears indistinguishable to urine, made of creatinine, coloring, sometimes uric acid or other chemicals, and mimics the characteristics of urine, usually rendering its fraudulent nature undetectable to the standard urine screen.
One way testing companies do discover they’re being duped is by taking the sample’s temperature. This is why Senders said fake urine comes with warming packs and temperature strips to maintain warmth and trick the test.
“It’s a little bottle that comes with two different lids, one to keep it sealed and the other one is a nozzle,” Senters said of the brands he sells. “And it comes with a hand warmer to get it to temperature, but it’s all ready to go, so when you get in there, it’s just in your pocket. It works and it’s easy to use.”
The products don’t end with fake urine. There are detox products, mouth washes, shampoos and fake prosthetics, like the Whizzinator, that mimics male genitalia and can be loaded with fake or someone else’s urine.
“We had a couple (Whizzinators) here but they never sold so we returned them,” Senters said.
With the Detox drinks, Sellers said a person mixes and consumes a concoction several hours before their test and the substances tested for can’t be detected. It dilutes and cleanses one’s natural urine. Sellers said the mouthwash is useful to beat roadside drug tests that have been administered in Michigan but not considered reliable enough for use in court. The shampoo claims to deceive hair tests.
Related: Roadside drug tests wrong 24% of the time
One of the most popular type of drug screens is called the nine-panel test, which looks in urine for cocaine, marijuana, PCP, opiates, methamphetamine, methadone, amphetamines and barbiturates. The Tobacco Shoppe also sells take home drug screens so customers can check to make sure they won’t fail before providing a sample.
Stopping the stream
Also speaking before the state Legislature in support of the proposed fake urine criminalization bills was Dr. Barry Sample the director of science and technology with Quest Diagnostics, an international drug screening company based in Secaucus, New Jersey.
He indicated people are likely cheating the tests today more than ever and said 18 other states already ban or criminalize masking products.
The rate of failed drug screens among the US workforce has gone from “a high of about 13.5% in 1988 to 4.6% today,” according to data shared by Sample.
“Does that mean drug use by workers is decreasing? Perhaps, that’s a part of the story,” he said. “Another part of the story is products that are designed to help people beat a drug test. That is: cheat.”
Sample said fake urine manufacturers are engaged in a “cat-and-mouse” game that’s resulted in products that are increasingly effective in passing as legitimate. The number of specimens that have been tested and determined to be counterfeit or fraudulent have doubled over the last 10 years and increased in pace over the last five years, Sample said.
He admits that outlawing masking products in Michigan may not thwart internet sales.
In addition to outright fooling the tests, Sample said some simply confuse it and make results impossible to gauge. In this case, a re-test may need to be scheduled which gives the employee or prospective employee more time to clean out their systems.
The costs for retesting paid by private companies when this occurs is in the millions, Sample said.
The marijuana conundrum
Marijuana isn’t the only legal substance some employers test employees for. There’s also alcohol. A main distinction, however, is the accuracy of the test. If the test is intended to detect recent use, urine tests fail when it comes to marijuana, which continues to be detectable long after consumption. Alcohol is usually processed and expelled from the body in under 48 hours.
More and more people are using marijuana, according to statewide sales figures that reflect nearly $2 billion in sales over the last year, but many company and government human resource departments are slow to alter their own policies and often still treat THC use the same as illicit drugs, alongside heroin, cocaine, opiates and benzodiazepines.
“Although the association of cannabis use with automobile accidents has been well-studied, the impact of cannabis on workplace safety and injuries is less clear,” said a synopsis of “Cannabis use and work-related injuries: a cross-sectional analysis,” a 2020 study of workplace accidents and THC use. “We found no evidence that cannabis users experienced higher rates of work-related injuries.”
The study examined 2,577 workplace injuries among 135,536 workers and found only 4% of the injured workers reported cannabis use in the previous year.
State Rep. Luke Meerman, R-Coopersville, who sits on the Health Policy Committee, said marijuana legalization likely has played a “big part” in the use of masking products. While the number of failed tests is decreased, he doesn’t think use is down as significantly, indicating employees are somehow getting better at beating the tests.
There “are many that get jobs and figure that marijuana is legal, so what’s it matter to anybody,” Meerman said. “But it does still matter to the federal government if there’s federal contracts involved, if you’re a (Department of Transportation) truck driver … and then there’s companies that have decided, especially, like forklift drivers, you can’t be using marijuana, so they’ll test. And then insurance companies as well, saying, this is your rate if you want to be with us and no one can be doing marijuana.”
While Callahan’s comments before the Health Policy Committee focused on jobs that entail some “degree of danger,” such as hi-lo and crane operators or delivery drivers, the jobs subject to preemployment drug testing for THC are much more expansive.
Many large Michigan-based corporations, including Ford, General Motors and auto suppliers, test workers for THC before they’re hired. The same goes for state and federal government employees, office workers or not.
Even Michigan’s Cannabis Regulatory Agency, which created and promotes the state’s legal, commercial marijuana industry, won’t hire employees who have THC in their system at the time of their pre-employment drug screen.
When corporations and government agencies have federal government overlap, there’s a greater likelihood they will conduct preemployment tests for marijuana.
“State employees can be subject to testing requirements under federal law, civil service rules and collective bargaining agreements,” said Lauren L. Leeds, a spokeswoman for the Michigan Office of the State Employer. “The state’s current testing under all three relies upon federal guidelines, which do not recognize medical or recreational marijuana as a valid basis for a positive test result.”
Of 8,862 Michigan government employees tested for drugs since 2018, 277 failed, and nearly 90% of those failures were tied to THC, according to data provided by the Michigan Office of the State Employer. In 2021, all 35 of the failed drug tests were for the presence of marijuana.
A slight shift
Stacy Hickox, associate professor in the school of Human Resources and Labor Relations at Michigan State University, said there are indicators that things are shifting in regard to employer testing for marijuana.
“I’m hearing from employers that a lot of them are being more careful about what they’re testing for,” Hickox said. “They may test for prescriptions and other controlled substances but sometimes just exclude marijuana so they don’t get a report back on that particular substance.”
Hickox couldn’t name any large Michigan-headquartered employers that are shifting their testing standards.
“A lot of them don’t really want to publicize it, if they are changing their policy,” she said. “Possibly they don’t want to be seen as attracting people that are marijuana users, even thought they’d be willing to accept someone.”
Most preemployment drug screens are standardized, but just because a company is having an employee take a test that is capable of checking for THC, it doesn’t mean that they are compiling or reviewing those results, Hickox said.
Another possible contributor to ongoing preemployment testing for THC is simply tradition.
“Part of it is that it’s existed for a long time, way before medical marijuana or legalization,” Hickox said. “Once something is in place, it’s always harder to change.”
Employers often use screening tools that are imperfect.
“It’s just like they might use a criminal background check or a credit check,” Hickox said. “It can be a very rough way for an employer to measure what somebody might be like as an employee — and I’m not saying that it’s right or that it’s accurate — but employers use that kind of criteria all the time.”
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