Using Synthetic Urine for Drug Test Can Get You Fired
Drug users who are tempted to try using synthetic urine – typically sold in head shops or on the Internet as a “novelty item” – to pass drug tests given by the criminal justice system or by employers, beware: Not only will you likely fail the test; possessing such a substance is a crime in many states, and you can easily lose your job if you’re caught with it.
Because Everyone Knows Pee Is Funny
Drug tests are given in many settings, but most often to parolees to ensure they are following the terms of their release, and to employees in the context of either getting or keeping their jobs.
In order to continue using drugs and fool the tests, some people turn to friends for clean urine samples; others turn to a substance known as synthetic urine.
An Internet search reveals products from the Tinkle Synthetic Urine Kit, offered for $39.95, to the Whizzinator prosthetic for $149. They are sold with the admonition that they are only “novelty items,” with one website pointing to the obvious hilarity involved in “dousing your roommate’s bed with urine.”
Most labs have caught up to the prank and now test for a compound found only in the fake stuff, but people continue to use it.
Sale or Use Prohibited
In Indiana, inmates have reportedly been using synthetic urine to try to pass drug tests in prison or while on probation. A state law passed in 2005 made it a crime to possess a device or substance designed to interfere with drug screening tests, and prison officials say they’re seeing an increase in fake urine usage among inmates.
Other states, such as Virginia, ban the sale of such products, but not their use, points out Tom Spiggle, a lawyer with The Spiggle Law Firm in Arlington, Va. A 2005 GAO report pointed out that their sale may be prohibited by federal law, if they are found to be “drug paraphernalia.”
All of which raises the question: Can an employer fire an employee who is caught using this type of product to fool a drug test, even if it’s not criminalized in their state?
ADA No Help
“Yes,” says Charles A. Lamberton, a workplace rights and employment discrimination lawyer in Pittsburgh.
“Many federal statutes require drug testing of employees, especially employees in ‘safety-sensitive’ positions such as airline pilots and commercial drivers,” Lamberton notes. “Beyond those laws, the Americans with Disabilities Act regulates when employers may require applicants or employees to submit to medical tests.”
Under the ADA, however, drug tests are not considered “medical tests,” so employers are generally free to test “as they please,” he adds. “Testing for lawful substances such as medically necessary prescription medications is where most employers run into problems. Though such tests are often permitted for safety-sensitive employees, they are generally prohibited for other employees.”
And you might even get in trouble at work if you don’t make it to the toilet. “If the employee is at-will, an employer likely could legally fire someone simply for possession of the substance,” observes Spiggle.
At-will employment simply means that you can quit for any reason and the employer can fire you for any reason – outside of an illegal one. Montana is the only state in the United States that does not subscribe to at-will employment, according to the National Conference of State Legislatures.
“There might be a different answer if the employer is the government or if the employee had a contract under which they could only be fired ‘for cause,’” he adds, “but these contracts are very rare. Usually only high-level executives have them.”
The bottom line is that “any employer would be well within its rights to fire someone for using these substances or helping someone else do so,” Spiggle says.