Mass Civil Service Commission Upholds Bypass of Candidate for Positive THC Test

The Massachusetts Civil Service Commission has upheld a decision by a fire department to bypass a candidate for a positive THC test. The decision is interesting because the candidate tested negative on a urinalysis and several hair tests, but positive when his beard hair was tested.

The case involved a candidate for the Chelsea Fire Department, Michelangelo Recupero. He received a conditional offer of employment in 2021 and was sent for a drug screen. The test included a urinalysis and a hair sample. As explained in the ruling:

  • On June 24, 2021, Occupational Health Services collected a urine sample as well as a hair sample from Mr. Recupero’s beard.
  • The samples were sent to Quest Diagnostics for analysis.
  • The urine sample tested negative, and the beard sample tested positive for THC metabolite at 0.2 pg/mg, which is four times greater than the “cut off” value of 0.05 pg/mg used by the laboratory to confirm a positive test for THC metabolite.
  • On June 29, 2021, Dr. Vearrier called Mr. Recupero to inform him of the positive result.
  • Dr. Vearrier’s notes from the call state that Mr. Recupero admitted to marijuana use and his last use was “a year ago.”
  • On July 7, Dr. Vearrier added to his notes: [Mr. Recupero] called back and was very angry on phone. Telling me I am screwing people over and asking my age. Telling me I did the test incorrectly. I ended the call after asking if he had any questions and he did not after 4 min and 44 seconds of him yelling at me.
  • After Mr. Recupero learned of the positive result, he went out and obtained two drug tests independently. Both independent tests analyzed Mr. Recupero’s scalp hair only, not his beard. [Both tests were negative.]
  • Negative results from scalp-hair samples are not inconsistent with the positive results of Mr. Recupero’s beard samples in the two CFD-ordered drug tests.
  • Scalp hair grows faster than beard hair, so it is normal for someone’s scalp hair to test negative while their beard hair tests positive.
  • Average hair growth is approximately one centimeter per month, so a three-centimeter sample of scalp hair (taken from as close to the follicle as possible) would reflect, on average, the last three months.
  • A three-centimeter sample of beard hair, which grows slower, would reflect a longer period of time.
  • The CFD sent Mr. Recupero for a second (City-ordered) drug test at ARCPoint Labs on July 1, 2021.
  • Samples of Mr. Recupero’s scalp and beard hair were collected and sent to United States Drug Testing Laboratories, Inc. for analysis.
  • The scalp hair tested negative, and the beard hair tested positive for THC metabolite at 0.3 pg/mg.

Fire Chief Leonard Albanese recommended the city bypass Recupero in part because he failed the drug screen, and in part because he denied having used marijuana in the past ten years, which the chief took as evidence of dishonesty. The City Manager approved the bypass. Recupero appealed to the Civil Service Commission.

In upholding the city’s decision, the commission ruled:

  • A preponderance of the evidence indicates that the City had reasonable justification to bypass Mr. Recupero for appointment as a firefighter, based on two positive drug tests and concerns about Mr. Recupero’s truthfulness on his application.
  • The Appellant argues that the mix of positive and negative drug test results point to the unreliability of the testing. However, that is not the case here. None of the results are inconsistent with one another.
  • First, the negative urine test is not inconsistent with any of the five hair tests, because the window of detection in urine tests is much narrower than that of hair tests.
  • Urine may remain positive for THC metabolite between three to ten days after the last use, depending on the frequency of the user.
  • In contrast, hair provides a lookback of up to several months depending on the length of the hair sample.
  • Next, none of the five hair tests—three negative scalp-hair samples and two positive beard-hair samples—are inconsistent with one another.
  • Again, there is no inconsistency between a negative scalp-hair test and a positive beard-hair test because beard hair grows slower than scalp hair.
  • Therefore, a three-millimeter sample of beard hair will reflect potential usage over a longer period of time than a three-millimeter sample of scalp hair could.
  • As such, it is normal that Mr. Recupero’s beard samples tested positive, while the other samples from his scalp-hair and urine tested negative.
  • This does not cast doubt on the reliability of the drug tests or their results.
  • Finally, the City’s decision to bypass Mr. Recupero is reasonably justified based on the two positive tests for THC metabolite that were proved in this appeal.
  • Thus, I do not need to specifically determine whether Mr. Recupero was untruthful when he stated on his application that he had not used marijuana in the past ten years
  • I note, however, that the evidence offered by the City (since the beard sample is taken as close to the skin as possible) does seem consistent with a conclusion that the levels of THC metabolite found in such a sample would be attributable to ingestion much more recently than 2008, contrary to what Mr. Recupero claimed.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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