Publications

New Rule on Workplace Drug & Alcohol Testing (2001)

The U.S. Department of Transportation (DOT) has issued its revised rule governing drug and alcohol testing procedures (49 Code of Federal Regulations Part 40). The rule was published in the Federal Register on Dec. 19, 2000. It is on the DOT web site. The DOT held public meetings to provide interested parties an overview of the revised procedures. A copy of the slides/viewgraphs that were used at the meetings may be requested from the Department of Research and Collective Bargaining Services. Most provisions of the rule go into effect Aug. 1, 2001, but some provisions went into effect on Jan. 18, 2001.

The following are some of the key provisions of the new rule:

Validity Testing

When a laboratory suspects the presence of an interfering substance/adulterant that could make a specimen unsuitable for testing and is unable to identify it, the laboratory may send the specimen to another U.S. Department of Health and Human Services (HHS) certified laboratory that conducts validity tests. A medical review officer’s (MRO) review of substitution and adulteration test results and split specimen testing for these results were required beginning Jan. 18, 2001. Validity testing will become mandatory Aug. 1, 2001, for all specimens, based on amendments to the HHS Mandatory Guidelines that are expected to be issued by that time.

 SPECIMEN VALIDITY TESTING

  • testing to determine if a specimen is adulterated, diluted or substituted;

  • Each specimen must be measured for:
    • creatinine
    • specific gravity if creatinine is less than 20 mg/dL
    • pH


 

 VALIDITY TESTING

  • validity testing currently is voluntary;
  • becomes mandatory Aug. 1, 2001 (based on HHS);
  • split-specimen testing and MRO review required;
  • laboratory problems discovered last fall;
  • HHS reviewed laboratory procedures as well as past two years' validity tests;
  • mistakes had been made; as a result, ~ 300 tests canceled;
  • HHS is now confident that procedures are being followed properly; and
  • laboratory problems concerned implementation issues only; HHS criteria and procedures for validity testing remain sound.

Stand-Down

Temporarily removing employees from performing safety-sensitive duties after a confirmed positive, adulterated or substituted laboratory test result, but before the MRO has verified the result — known as stand-down — is generally prohibited. However, employers can request a waiver permitting stand-down. Waiver requests must include a written stand-down policy providing for, among other things, confidentiality of information about the test, paying workers during the stand-down period and expunging records of the confirmed test result if the test is verified negative or canceled.

  STAND-DOWN POLICY

  • distributed to each covered employee;
  • ensure confidentiality (employee, MRO and designated employer representative):
  • ensure all covered employees in same job category are treated the same;
  • no adverse effects on pay and benefits; and
  • stand-down period cannot exceed 5 days. 

Role of Consortia/Third-Party Administrators (C/TPAs)With some exceptions (e.g., transmission of medical information from MROs to employers, transmission of substance abuse professionals (SAP) reports to employers), employers may choose to have drug test results and other information transmitted to them via a C/TPA or directly from the MRO or other person who generates the information. As service agents, i.e., those operating the drug testing program, C/TPAs are not “employers” for purposes of the rule and cannot play the “designated employer representative” role for the employer. Only the employer or the designated employer representative can receive test results and take action based upon these results, such as removing an employee from the performance of safety-sensitive functions.

Public Interest Exclusions (PIE)

 The final rule includes a public interest exclusion mechanism designed to protect the public from the effects of serious noncompliance by service agents. A service agent who engaged in serious misconduct could be excluded from participating in DOT-required drug and alcohol testing for a period of time. The PIE provision lists examples of noncompliance and provides due process to ensure fairness. The PIE provision went into effect Jan. 18, 2001.

Training

The rule includes enhanced training requirements for collectors, breath alcohol technicians (BATs), screening test technicians (STTs), MROs, and substance abuse professionals (SAPs).

Substance Abuse Professionals (SAPs) and the Return-to-Duty Process. All positive tests and refusals to test will have a consequence. SAPs must require education and/or treatment in all such cases. The return-to-duty process is mandatory following any violation of the rules, including a positive on a pre-employment test. The number of follow-up tests remains the same as under current rules: a minimum of six tests in the first 12 months following return to duty. Employers may, but are not required to, monitor aftercare for employees who have returned to work following a violation. Return-to-duty process and follow-up testing requirements continue to apply even if workers change jobs or have a break in service.

 FOLLOW-UP EVALUATION

  • determine successful compliance or not;
  • one basis for employer decision to return employee to duty;
  • SAP must:
    • confer with education and/or treatment professionals
    • conduct face-to-face clinical interview with employee
    • make clinical determination regarding successful compliance
  • one of two determinations is possible:
    • employee has demonstrated successful compliance
    • employee has not demonstrated successful compliance
  • no return to safety-sensitive duty
  • SAP can conduct additional follow-up evaluation(s) if employer authorizes
  • employer may take personnel action

Collection Process

All collections will be split-specimen collections. A collection under direct observation will be required following a situation in which a test is canceled because the split specimen was unavailable, but not following a negative dilute test result, a result achieved when too much water is consumed prior to a test. Otherwise, direct observation testing is the same as under the current rule. An employee’s decision not to drink fluids in a “shy bladder” situation will not be regarded as a refusal to test. Collectors will not require employees to remove boots, but will require employees to display the contents of their pockets.

Other Issues

Employers will be required to obtain, from an applicant’s previous employers over the past two years, drug and alcohol testing information. The new rule authorizes greater use of electronic means of transmitting and storing data, and mandates use of new, clearer drug and alcohol testing forms, as well as a standard urine collection kit. “Blanket releases” for testing information continue to be prohibited.

Conforming Rulemaking

All six DOT agencies involved in the drug and alcohol testing program will issue proposed rules during 2001 to modify their rules to be consistent with the new Part 40.

This article is based on a fact sheet from the DOT Office of Drug and Alcohol Policy and Compliance. For more information, please contact the Department of Research and Collective Bargaining Services at (202) 429-1215 or research@afscme.org.

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