Drug Testing Reform

IPA takes no formal position on the legality or privacy aspects of urine drug testing.  Our sole purpose is to make sure people subject to drug testing are treated fairly so that they have the ability to prove their drug-free status.  IPA’s strategy for drug-testing reform is to work on several levels:

• • Individual
  • Statutory
  • Educational
  • Litigation

At the individual level, IPA acts to support people subject to a drug test by directly working with those doing the testing to advocate for providing a non-urine alternative test.  We have been successful in many situations simply by talking to reasonable people and informing them about paruresis and how to obtain a valid drug test that is fair, accurate, and does not rely on a urine sample. We have provided letters of support for sufferers. IPA is actively seeking people who are skilled at helping out with this effort.  Please contact us if you have relevant expertise, or know someone who does.

At the statutory level, IPA is engaged with government officials to modify existing regulations that are unfair to those with paruresis.  The most important federal agency is SAMHSA, the US Substance Abuse and Mental Health Services Administration.  This agency is responsible for maintaining the standards for federal workplace drug testing that are often adopted by private employers.  In 2004, IPA submitted a formal response to SAMHSA asking for a number of changes to the existing regulations, and over 130 personal responses from IPA supporters were also submitted as part of the public comment process. In 2019, SAMHSA updated their procedures to allow for oral fluid testing. Now, we are working to see that government agencies adopt those rules.

At the educational level, IPA seeks to inform the public about paruresis and its impact on people who must undergo urine drug testing.  Many people are unaware of paruresis and how it affects the ability to urinate, so a number of policymakers are simply ignorant of the barrier urine drug testing presents.  IPA has collected a great number of stories from people who have been fired from jobs, unable to obtain employment, have been taken off parole and put back in jail, or are under-employed since they cannot apply for a job they are qualified to do without passing a urine drug test.  We hope that if people setting drug-testing policy become informed about paruresis, they will change current policy to be fair to those with paruresis.  We think common sense will prevail once people know the facts.

At the litigation level, IPA provides expertise in court when a person’s rights have been violated.  Successful litigation requires a case that isn’t complicated by suspected drug use, procedural ambiguities, or other factors that could let an employer plead that they were following regulations and were in their right to deny employment.  IPA has helped two people settle cases where they were treated unfairly and continues to seek additional cases so that we can build a history of legal precedent.

It is important to talk about the self-selecting nature of urine drug-testing policy and people with paruresis.  Whenever a person with paruresis knows he or she will be subjected to a urine drug test, the person is likely to decline working for that employer, or to choose another career where drug tests aren’t required.  This means that people with paruresis are unlikely to work in positions such as transportation, athletics, or health care, where drug testing is popular or required by law.  The consequence of this injustice is that approximately seven percent of the population is barred from working in capacities where they might be eminently qualified.  An airline pilot needs good vision, quick reflexes, technical knowledge, and a talent for flying an aircraft.  What’s missing from this job description is the ability to urinate into a cup in front of an observer.  That skill isn’t needed in order to fly an aircraft.  A pilot can prove one’s drug-free status through many alternative test procedures if regulations allowed them.  The sad thing is that most people with paruresis won’t even apply for flight school because they know they can’t get through the drug test once they graduate.

Since people with paruresis often select themselves out of certain careers, people involved in drug testing seldom encounter a person with it.  The natural conclusion of a person who’s never encountered someone with shy bladder is that the problem doesn’t exist, or a person claiming it might be trying to evade a drug test because he or she is a drug user.  Misunderstandings such as this one are a difficult problem requiring diligent effort on our part to correct.  IPA’s mission is to ensure qualified, drug-free people can pursue the careers they choose, and that students and those in the criminal justice system, who seldom have any choice, receive fair and equitable treatment.

The information below can help you learn about the legal process and how to influence an employer, correctional authority, school administrator, or other person about paruresis and obtain reasonable accommodation. For more specific information, also see our Frequently-Asked Questions pages.

Urinalysis Drug Tests & Disability Discrimination Under the Americans with Disabilities Act (ADA)

The Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq, is the world’s first comprehensive civil rights statute for people with disabilities.  The ADA is the most significant piece of legislation prohibiting discrimination against the disabled.  ADA inquiries, where persons with disabilities claim discrimination, necessitate the determination of whether persons initiating the claims are afforded the protection of the ADA. This determination frequently requires more extensive analysis than does the determination of whether persons are protected by other nondiscrimination statutes.  It is generally apparent whether persons are of the particular race, national origin, age, or sex for which they allege discrimination.  Determining whether certain physical and/or mental conditions constitute impairments, thereby meeting the definition of individuals with disabilities, is not always so clear-cut.

Specifically, persons suffering from paruresis (a.k.a. “shy bladder” and “bashful bladder”) continually confront disbelief that they suffer from valid disabilities.  Paruresis is a social anxiety condition mentioned in the DSM IV under the category 300.23, creating great difficulty urinating in public places.  Paruresis inflicts persons in the employment context and in the prison context, when physically unable to provide specimens for urinalysis drug tests.  Resultantly, the inability to produce specimens on demand is unfairly deemed equivalent to testing positive or refusing to obey direct orders.  As a direct consequence, persons applying for jobs are denied employment positions and prisoners receive disciplinary action.  The unwillingness to provide reasonable accommodation is evident as there are alternative methods of conducting drug tests (such as oral fluid, sweat patch, or hair analysis), and urinalysis procedures are still exclusively used in most drug testing programs.  By offering the alternative tests, illegal substances can be detected without engaging in discriminatory behavior towards persons with paruresis as defined under the ADA.

ADA Title I Employment (42 U.S.C. §§ 12101 et seq.) prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications, 29 C.F.R. § 1630.2(h).  The ADA prohibits an employer from discriminating against a “qualified individual with a disability” based on the disability, 42 U.S.C. § 12112(a).  For employees denied positions subsequent to their inability to complete a urinalysis drug test, to establish a prima facie case under the ADA they must show: (1) that they have a disability; (2) that they were qualified for the jobs; and (3) that they were subject to an adverse employment decision because of their disabilities.

The foundation of any ADA claim leads to the issue of what constitutes a person as “disabled.”  A person must meet the requirements of at least one of these three criteria to be an individual with a disability under the Act.  The ADA defines a “disability” as: (1) a mental or physical impairment that substantially limits one or more major life activities of an individual, (2) a record of such an impairment, or (3) being regarded as having such an impairment.  A physical or mental impairment, under 29 C.F.R. § 1630.2(h), consists of: (1) [A] ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or (2) [A] ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Applying ADA law to persons with paruresis and drug testing, one must show that paruresis creates an impairment (i.e. inability to urinate), that this impairment qualifies as a disability for purposes of the ADA, and that the condition “substantially impairs” one or more major life activities.  Applicable regulations do not note the “ability to control one’s wastes” as a major life activity, but what can be more basic than the act of urinating?  Therefore, for courts to find that persons with paruresis are disabled as defined under the ADA, courts must find in fact and conclude as a matter of law that such loss substantially limits the major life activity of urinating.  42 U.S.C. § 12111(8) (1994).  Since definition (1) of a physical or mental impairment in the previous paragraph includes the genito-urinary system, IPA believes paruresis is a valid disability requiring reasonable accommodation.

Today, millions of people are subjected to drug tests as a requirement for getting or for keeping a job in public and private employment sectors. People are increasingly voicing their objections, believing the process to be unreasonable, unwarranted, and unconstitutional. There is a debate in society as to whether or not suspicionless drug testing is an impingement upon the fundamental right of personal privacy and lacks sufficient accuracy to serve any public purpose.  Employers and authorities tend to be on the side of wanting to know those they supervise are drug-free, while those being supervised question why drug testing is used as an evaluation tool rather than their actual work performance.  IPA views this debate as important and healthy, and regardless of the outcome the rights of those with paruresis must be protected.

However, there are some people who are punished in spite of their innocence. For example, pre-employment offers are retracted or employers fire them from current places of employment. This occurs when people are drug-free but are physically unable to prove it by way of the type of drug test offered. The issue is one that people suffering from paruresis (a.k.a. “shy bladder” and “bashful bladder”) continually confront. Paruresis is a social anxiety condition mentioned in the DSM IV under the category 300.23.

When people are required to take drug tests during pre-employment job screening or as a condition for maintaining one’s present position, most collection sites employ urinalysis procedures. The collection procedures sometimes stipulate that collectors need to visually or aurally directly observe the act of urination. Urinalysis drug testing methods have additional negative consequences for people with paruresis, whereby they are physically unable to produce a specimen. The inability to produce specimens on demand is deemed equivalent to testing positive or refusing to obey direct orders. As a direct consequence, people are denied employment positions for which they otherwise are capable.

The purpose of this article is not to dismiss the significance of drug-free workplaces. If employees are in fact using drugs and placing themselves and/or others at risk, those employees should have the opportunity to be treated for their drug abuse or face dismissal if necessary. But regulations enforcing such procedures must take into account the estimated 7% of the US population suffering from paruresis. (1994 National Co-Morbidity Study). There have yet to be any conclusive statistics reflecting the percentage of persons with paruresis affected by urinalysis drug tests.

The US Department of Transportation (DOT) may argue that there are rarely any complaints pertaining to paruresis and the inability to perform urinalysis drug tests. This is probably accurate since most people with paruresis are well aware of their inability to perform urinalysis tests. Therefore, it is only logical to refrain from seeking employment at agencies that use urinalysis procedures. Regardless of the exact number, what remains relevant is that people are denied employment based solely upon their inability to urinate in front of others. Employers should rely upon hair specimens, oral fluid (saliva), or sweat (patch) rather than urine for their drug testing programs. In this manner, employers  can effectively detect illegal substances without engaging in discriminatory behavior.

A recent trend has developed where schools perform drug testing of students involved in athletics or other extracurricular activities.  Some people are even calling for random testing of all students.  This growing practice creates special problems for our children if they have paruresis.  Young people with paruresis are ashamed to admit it to another person. Because they can’t use public restrooms around their peers, they think they are strange or weird and are afraid to say anything about this to parents, teachers, friends, or their doctor. This fear and shame causes major problems for a student. Paruresis is believed to be a form of social anxiety disorder, but not much is understood about it yet. Once people with paruresis have an anxiety attack brought on by having another person watching them urinate or placing them under time pressure or the threat of failing a drug test because they could not provide a sample, their urinary muscles “lock up” and there is no way they can urinate until they can get away from the perceived threat and find a safe restroom, usually at home.

Students with paruresis facing a urine drug test would likely decide not to participate in the activity requiring the test. Unfortunately, social interaction and participation outside the classroom is the most important thing these people need so they do not enter a cycle of increasing avoidance and isolation from their peers. The fear, shame, and guilt from suffering with paruresis creates special problems for young people, because they are not emotionally mature.  Risks of more serious problems, such as depression and suicide, could be the result for a young person facing a drug test who is unprepared and uneducated about how to treat paruresis.  If implemented on a school-wide basis, urine drug testing could lead to students with paruresis dropping out of school or a reduction in students’ performance and motivation due to excessive worry about their paruresis.

There is a solution to the problem urine tests create that is fair, and that is to allow students to have an alternative test that doesn’t require a urine sample.  If drug testing in schools is to become a common practice, IPA believes the following measures must be taken in order to ensure young people are treated fairly, receive equal access to activities that help with social development, and reduce the chances of worsening or creating a mental health crisis.

1. Drug-testing authorities need to publish training materials that are sensitive to the needs of students with paruresis and educate school officials who set up testing programs.  IPA is ready to assist with this process.
2. Any grant of government money to schools must require that the testing will include non-urine alternatives so that there is no chance of discrimination against students with paruresis.
3. Students who are drug tested must receive information on paruresis so that they are aware that treatment is available and that they are not strange or weird for having difficulty urinating around others.

In recent years, drug testing has increasingly become the focus of efforts to detect and control drug use in prisons. Prisons rely on various assessment tools in selecting prisoners for drug testing. Some prisons test all inmates upon entry for the first time; other prisons select inmates randomly after a set length of stay or at unpredictable times or upon indication of illegal drug use. When inmates are selected for drug testing, most prisons employ urinalysis collection procedures, whereby inmates are forced to urinate upon direct observation. The inability to produce specimens on demand is deemed equivalent to testing positive or refusing to obey direct orders. These regulations fail to recognize that there are prisoners who suffer from paruresis, (a.k.a. “shy bladder” and “bashful bladder”) whereby they are physically unable to produce a specimen. Paruresis is a social anxiety condition mentioned in the DSM IV under the category 300.23. [More below video . . .]

 

A catch-22 dilemma arises when prisoners assert that, due to paruresis, they are unable to perform urinalysis tests in the presence of others. Accommodations are only made if prison records contain medical documentation before they are selected for urinalysis testing. Most prisoners lack this necessary documentation because, subsequent to incarceration, the majority of prisoners were not diagnosed for paruresis. Mental health professionals often lack necessary knowledge of paruresis and are unable to confirm or substantiate such allegations. Physicians cannot make a determination for adequate medical documentation because, presently, paruresis lacks any physiological evidence. Resultantly, prisoners develop a greater sense of hopelessness and frustration whilst prison officials often reinforce their allegations that prisoners are engaging in acts of deceptions.

Presently, prisoners with paruresis are living in fear not knowing when they will be randomly selected to face their social phobia. Department of Corrections should administer tests to detect if inmates are taking illegal substances, not to detect whether they have the ability to urinate in front of others. Paruretic prisoners, rather than receive treatment, receive the same punitive sanctions imposed when inmates test positive for drugs. Legal and administrative sanctions may include one or more of the following disciplinary actions: removal of inmates’ privileges, taking away inmates’ good time, reclassifying inmates’ security to higher levels, extending inmates’ incarceration time, charging inmates with a new offense, increasing inmates’ drug testing, and postponing or preventing inmates’ release.

The purpose of this article is not to dismiss the significance of drug testing. Prisoners should be tested when there is reasonable suspicion of drug use and if drugs are detected, disciplinary actions are justifiable. Negative sanctions are unjustified when physical and psychological conditions prevent compliance with these regulations. All prisons should implement drug-testing regulations that comprehend the needs of prisoners with paruresis so that the need to decrease drugs in prison facilities is accomplished in a way that is both effective and fair to everyone. Amendments in prison regulations may very well present some inconveniences. However, paruretic prisoners endure disciplinary sanctions, which are considerably greater. Complaints of inmates with paruresis will continue until action is taken to eradicate this dilemma.