Case to decide validity of testing hair for drugs

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Kevin Murphy
Friday, February 24, 2012
— Whether employers can rely on hair test results to fire workers for using drugs will be determined in a case involving Scot Forge of Clinton and the Labor and Industry Review Commission.

The District 4 Court of Appeals on Thursday returned the case to the commission and ordered it to present proof of the unreliability of hair test results.

Scot Forge updated its drug-testing program in January 2009, allowing employees to disclose prior drug use that would waive testing for 120 days. Bradley Brandt, a saw operator at Scot Forge since September 2006, disclosed that he had used cocaine, and testing was waived.

In June 2009, the company exercised its right to test Brandt under a "second chance" provision, and cocaine was detected in a chest hair sample.

Brandt of Beloit contended he hadn't used drugs since before his January disclosure and the test was invalid because it used hair from his chest and not his head. A subsequent test of his head hair was negative for drugs, and Brandt's employment continued.

After Braun took a two-week medical leave in September 2009, a test of his head hair was positive for cocaine, and he was fired. Brandt promptly submitted a head hair test from another lab, and that was negative for drugs. Scot Forge refused to rescind Brandt's dismissal.

The Department of Workforce Development found that Brandt was eligible for unemployment compensation because the company didn't use urinalysis, an accepted test, to prove drug use. The labor commission upheld the finding, stating that hair test results were unreliable.

The company appealed to Rock County Circuit Court, where Judge James Welker found that denying Brandt unemployment compensation was proper under state law.

For 20 years, the LIRC has rejected hair test results. It recognizes urinalysis because cocaine can't be detected in urine for as long of a period as in hair.

Urinalysis results show a closer connection to "workplace conduct," while hair test results don't show as directly when the drug use occurred, LIRC argued.

However, LIRC provided no evidence to support its conclusion, which caused the District 4 court to remand the case to the commission.

"LIRC needs to make findings of fact and explain its rationale for concluding that (Scot Forge's) hair sample results are unreliable," wrote District 4 Judge Margaret Vergeront in a 16-page opinion.

Lori Lubinsky, attorney for Scot Forge, said the decision should eventually allow hair testing, which is more advanced science and doesn't have urinalysis' chain of custody problems that can occur with "sample switching."

"A tech can pull a hair out of someone's head. There's no privacy concerns as there is in urinalysis," she said.

LIRC's attorney, Tracey Schwalbe, said the agency will have to provide more evidence to maintain its rejection of hair testing. While Scot Forge used a lab that has been approved by the Food and Drug Administration, Schwalbe said LIRC adopted the federal Substance Abuse and Mental Health Services Administration's position, which doesn't recognize hair testing as proof of drug use.

Last updated: 7:39 pm Thursday, December 13, 2012

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