The Federal Corner

2010 Year in Review

2010-12-23T09:40:00.000-08:00

The year is coming to an end and many of us may wonder what really happened in 2010 in the transportation industry related to our favorite subject – drug and alcohol testing!
Actually, 2010 was much more active and interesting than 2009. Although the economy has not improved much, unemployment is still high, and many small employers are struggling to stay afloat, drug and alcohol testing is not something you can disregard and hope that no one will notice.

Last year, 2009, was a year that concentrated primarily on one item in the DOT drug-testing program – urine specimen collection under direct observation for return-to-duty and follow-up testing. All the energies and efforts of the DOT were spent defending their decision – and they were ultimately successful in the courts.

On November 25, 2008, the Department of Health and Human Services (HHS) published a revision of their Mandatory Guidelines for Federal Drug Testing Programs, which was to become effective May 1, 2010. This Final Notice addressed collection and testing of urine specimens, the requirements for the certification of Instrumented Initial Test Facilities (IITFs), the role of and standards for collectors and Medical Review Officers (MROs), and added additional drugs to those currently being tested.

However, on April 30, 2010, HHS published a Final Rule changing the effective date of the Revisions to Mandatory Guidelines for Federal Workplace Drug Testing Program from May 1, 2010, to October 1, 2010. This was due primarily to the fact that DOT was not able to publish a rule change in time to meet the May 1 deadline.

On November 17, 2009, HHS also published a Notice of Proposed Revisions to the Federal Custody and Control Form (CCF), revising the form to conform to the revised Mandatory Guidelines and expanded the drug testing profile to include new drug analytes: methylenedioxymethamphetamine (MDMA) commonly known as ``ecstasy,'' and methylenedioxyamphetamine (MDA) and methylenedioxyethylamphetamine (MDEA) which are close chemical analogues of MDMA.

To confuse the issue more, on February 4, 2010, DOT published a notice of proposed rulemaking (NPRM) in an attempt to harmonize the transportation drug and alcohol testing requirements with those of HHS and the revised guidelines.

On February 25, 2010, the DOT published a Final Rule authorizing employers in the Department’s drug and alcohol testing program to disclose to State commercial driver licensing (CDL) authorities the drug and alcohol violations of employees who hold CDLs and operate commercial motor vehicles, when a State law requires such reporting. Although this sounds like a simple process, there were a number of questions and uncertainties that produced some confusion for employers.

On August 16, 2010, the DOT published a Final Rule creating consistency with many of the HHS requirements of their Mandatory Guidelines. A major difference was that although HHS permits the use of Instrumented Initial Test Facilities (IITF), the DOT determined that based on the Omnibus Transportation Employee Testing Act of 1991, the use of IITFs within the transportation industry was not authorized.

And, although this is not a drug and alcohol testing issue, the Federal Motor Carrier Safety Administration (FMCSA) finally implemented a testing program in six states of their Comprehensive Safety Accountability 2010 (CSA 2010) – further adding to some anxiety by many carriers as to what the future may hold for them (we addressed this in the April blog). The national rollout of the program was to occur no earlier than December 12, 2010, despite reports to the contrary.

In the June 2010 blog, we addressed a few old questions: if a driver fails to show up at a collection site, who makes the determination that this is a refusal and when a driver returns to duty after a violation, does the employer have to conduct two tests – return-to-duty and a pre-employment test? A question was also raised on how to handle a situation when an alcohol test was administered inadvertently and what was the statue of limitations on a positive test.

A number of employers asked about K2, sometimes known as Spice, and what impact its use had on the DOT program. The November blog gave a summary of what K2 is and some issues related to the use of the drug. It is important to know that on November 24, 2010, The Drug Enforcement Administration (DEA) issued a Notice of Intent in the Federal Register to temporarily place five synthetic cannabinoids (including K2) into the Controlled Substances Act (CSA) pursuant to the temporary scheduling provisions under21 U.S.C. 811(h) of the CSA. What this means is that K2 will be subject to the regulatory controls and administrative, civil and criminal sanctions applicable to the manufacture, distribution, possession, importing and exporting of a Schedule I controlled substance under the CSA. Further, it is the intention of the DEA to issue such a final order as soon as possible after the expiration of thirty days from the date of publication of the notice. What this means, is that with the start of 2011, K2 will probably be illegal and employers will now be able to place in their policies certain sanctions for use and possession of this substance.

And finally, the recent revisions to the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs, which took effect on October 1, 2010, address the role and qualifications of Medical Review Officers (MROs) and HHS approval of entities that certify MROs. On December 8, 2010, HHS published a list approving several entities and boards. Although this should be transparent to most employers, it is something to remember if contracting directly with an MRO for services as opposed to using a Consortium/Third Party Administrator to operate the total program.

The bottom line is that 2010 was an “active” year compared to 2009. What will 2011 bring is another question. However, rest assured that there will be more regulatory changes, regulations, and guidelines to make everyone’s life more interesting. Just remember that drug and alcohol testing is not going away. It is easier to comply with the regulations than to try and avoid them.

K2 AND SPICE – IS THIS A NEW DRUG AND SHOULD EMPLOYERS BE WORRIED?

2010-11-29T07:09:00.001-08:00

K2 AND SPICE – IS THIS A NEW DRUG AND SHOULD EMPLOYERS BE WORRIED?

Recently, a number of employers have started asking questions about K2, sometimes known as Spice, and the medical review officer (MRO) community has had some discussions on this subject. The following addresses some of what is known about this product and what employers may need to do relative to its use.

K2 is also known by a myriad of street names, including K2 Blonde, Spice, Spice Diamond, Spice Gold, Yucatan Fire, and so on. It is a synthetic cannabinoid compound that was first created in the mid-1990s in a laboratory by John W. Huffman of Clemson University, and was named after him – JWH-018. The formula for this compound was published and soon after that it was being used in China and Korea as a plant growth stimulant. Within the next few years, primarily in Europe, users started to spray this product on plant and spice material and tobacco, and smoke it. Currently, a number of European countries have banned this product.

Use of K2 has been around in the U.S. for several years, but since it was not illegal, and its prevelance is hard to measure, there have been only sporadic efforts to ban or limit its use in this country. Currently, K2, Spice, and other similar products are now sold on the internet and in “head shops” as incense and labeled not for human consuption. However, when smoked, these products produce similar highs as with marijuana use. It is important to remember that these products are synthetic and do not actually contain THC (delta-9-tetrahydrocannabinol, the principal psychoactive ingredient found in marijuana) and are not derived from the hemp plant.
K2 works on the brain in the same way as THC. Both compounds bind to the CB1 receptors in the brain, which primarily affect the central nervous system. JWH-018 also binds to the peripheral brain (CB2) receptors, which are involved in the immune system. From a chemical perspective, K2 has an affinity for the cannabinoid brain receptor (CB1) that's about 10 times greater than THC – meaning that you can smoke a lot less K2 to get just as high.

Although the risks of using K2 are still unclear, there have been reports from emergency rooms of symptoms, such as fast heart beat, dangerously elevated blood pressure, pale skin and vomiting suggesting that K2 is affecting the cardiovascular system of users. It also is believed to affect the central nervous system, causing hallucinations and, in some cases, seizures. One major problem is that there are no quality controls in the production of this product or the amount that is actually applied to the plant material, leaving users playing “Russian roulette”.

The assumption is also made that impairment from use of this product is similar to that of marijuana. However, there is no data on the use of K2 in the transportation industry at this time. It is also important to know that current drug testing methodologies do not test for synthetic cannabinoids; some laboratories can test for this product at special request, but the tests are relatively expensive.

A number of states have either banned or criminalized possession and/or use of K2. States with bans include Alabama, Arkansas, Georgia, Hawaii, Iowa, Illinois, Kansas, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, and Tennessee. A number of other states have legislation pending. Only one of the cannabinoids, HU-210, has been categorized as a Schedule I drug under the Federal Controlled Substances Act, although the Drug Enforcement Administration has indicated that it will review the other unscheduled synthetic cannabinoids in the near future.
So, what does all of this mean to employers in the transportation industry? First of all, employers should be concerned if they think any of their safety-sensitive workers may be using K2 or its derivatives. Like marijuana, these products may have some impairing affect on performance and employers have the right to be concerned about the impact on safety.

However, an employer is not going to be able to conduct DOT testing for K2 or Spice. As already mentioned, laboratories do not generally test for these compounds. Second, employers may want to put in their company drug policy their concerns, expectations, and consequences related to the use of these products. This will at least place their safety-sensitive employees on notice that the employer does not condone the use of these products. Unfortunately, possession of these items is rift with problems. An employer could state possession of K2 may results in termination, but how will the employer prove possession? A bag of plant/incense products may look like marijuana – the employee states it is K2 – how will the employer prove either? Laboratories can test a product to see if it is marijuana. They can also test for K2, but the employer must be willing to absorb the cost of such testing. The flip side of this is what will be the cost to the employer if the employee has an accident and causes a death?

Prevention is still the most effective method to address this problem. The perception that K2 is harmless (and legal in some states) may lull employees into thinking that its use will not impact on their health or on safety of the public. Education with accurate information will go a long way in changing employees’ behavior.

It is not likely that employers will face any significant number of problems involving K2 in the near future, but being ready to address these will at least put employers ahead of the proverbial eight ball. Employers, who use Consortia/Third Party Administrators (C/TPA) to operate their drug/alcohol testing programs, may want to discuss what their options are when and if they face this type of problem. The C/TPA can certainly provide guidance on which laboratories conduct tests for these compounds. Just a reminder – testing for K2 would be under the employer’s policy and not under DOT authority.

DOT DOES IT AGAIN – ANOTHER DRUG/ALCOHOL FINAL RULE

2010-08-23T10:02:00.001-07:00

On Monday, August 16, 20010, the Department of Transportation (DOT) published a Final Rule (FR) to its Procedures for Transportation Workplace Drug and Alcohol Testing Programs. The purpose of this FR is to provide consistency between the DOT regulation and the Department of Health and Human Services (HHS) Mandatory Guidelines for Federal Workplace Drug Testing Programs.

Some employers may wonder what these two regulations from different agencies have to do with the DOT requirements for drug and alcohol testing in the transpiration industry. The simple answer is that the DOT is required by the Omnibus Transportation Employee Testing Act of 1991 to follow the HHS scientific requirements for drug testing procedures and the type of illegal drugs that are tested. For those who are interested, the preamble in the FR provides a clear and lengthy historical background related to this requirement.

As a result of this mandate, the DOT is required to follow most of the HHS laboratory testing procedures, use HHS certified drug testing laboratories, and test for those drugs that are authorized by HHS. There are procedures, such as collection of urine specimens or medical review officer (MRO) reporting, that are not tied to HHS requirements and in those areas, the DOT sometimes varies in its procedures from those required by HHS.

Bottom line question – what is the impact on the transportation employer who is under DOT regulatory authority? Again, the simple answer is not much, but there are a few items that will have impact on the testing process and employers must be aware of these.

The first major issue that faced the DOT was the HHS procedure permitting the use of Instrumented Initial Testing Facilities (IITF) to conduct initial drug testing. What this means is that HHS would certify a facility that would perform only the initial screening testing of urine samples. If the initial screen was negative, a negative report would be sent to the employer. If the initial screen was non-negative, the specimen would have to be sent to a “full-fledged” laboratory for confirmation testing.

The DOT’s interpretation of the Omnibus Act was that the Act precluded the DOT from using IITFs since it requires “that all laboratories involved in the controlled substances testing of any individual under this section shall have the capability and facility, at such laboratory, of performing screening and confirmation tests.” Since IITFs do not have any confirmation capabilities, the DOT’s position is that IITFs may not be used in the DOT drug testing program. This means that employers must be vigilant in their dealings with laboratories or third parties that provide drug testing services and ensure that specimens are not sent to IITFs.

The second major change is related to the DOT including the HHS expanded amphetamine testing. Initial and confirmatory testing will be conducted for Methylenedioxymethamphetamine (MDMA) – also known as Ecstasy, and confirmatory testing for Methylenedioxyamphetamine (MDA) and Mehylenedioxyethylamphetamine (MDEA). The impact of this change on employers may be that those employers who specifically identify in their policy the type of drugs for which they test, may now need to go back and add these analytes to that list and, of course, ensure that this information is provided to all their safety-sensitive employees.

Again, following the changed HHS requirements, the DOT is also lowering the cutoff testing levels for cocaine and amphetamines. The initial test cutoffs for cocaine metabolites would go from 300 to 150 ng/mL, while confirmation test cutoffs would go from 150 to 100 ng/mL. For amphetamines, the initial cutoffs would go from 1,000 to 500 ng/mL, while confirmation tests for amphetamines and methamphetamines would go from 500 to 250 ng/mL.

Based on the change in cutoff levels, employers may experience an increase in the number of positive results reported to them, especially for cocaine. It probably would be beneficial to ensure that the lowering of the testing cutoffs is well publicized to those in safety-sensitive positions.

Under their new Mandatory Guidelines, HHS is directing laboratories to conduct testing for 6-Acetylmorphine (6-AM) on all initial tests on all specimens. 6-AM is a unique metabolite produced when a person uses heroin. Since all DOT drug testing is conducted in HHS-certified laboratories, all urine specimens collected under DOT authority will now be tested for 6-AM. The DOT is including this process in its FR to ensure that the transportation industry understands this change.

The FR also eliminated the requirement for each MRO to take 12 hours of continuing education every three years. Instead, each MRO will need to be re-qualified, including passing an examination given by an MRO training organization, every five years. And finally, for consistency, the DOT is harmonizing a number of definitions in its rule with definitions in the HHS Mandatory Guidelines and adding several new ones.

This Final Rule is effective October 1, 2010. A copy may be viewed on the DOT website at: www.dot.gov/ost/dapc.

TWO MORE QUESTIONS RAISED BY A FEW EMPLOYERS: INADVERTENTLY ADMINISTERED ALCOHOL TESTS AND WHAT IS THE STATUTE OF LIMITATIONS ON A POSITIVE TEST?

2010-07-22T07:28:00.000-07:00

Many times, it’s the simple questions that prove the most troublesome to some employers. One of the old questions is raising its head again – what to do with an alcohol test that was administered to an employee who was not scheduled for an alcohol test. In many programs, selections for alcohol testing are combined or added to those selected for drug testing. Because of the difference in the annual rate for testing for drugs versus alcohol, a very small percentage of employees who are tested for drugs, are also tested for alcohol.

An employee goes for a drug test and the collection site inadvertently also administers an alcohol test. Of course, as is frequently the case, this alcohol test is positive. The employee claims that he/she was not supposed to have an alcohol test. The form provided by the employer indicated that only a drug test was scheduled. On top of all of this, some employees are very convincing in showing that they have a legitimate complaint and that the test should not be accepted.

The employer now is in a dilemma – cancel the test, make it a non-DOT test, ask for a second test, etc. The simple answer is to go back to the rule text and see what the regulation requires. Section 40.275 What is the effect of procedural problems that are not sufficient to cancel an alcohol test? – specifically addresses this issue. Paragraph (b) states: No person concerned with the testing process may declare a test cancelled based on a mistake in the process that does not have a significant adverse effect on the right of the employee to a fair and accurate test. For example, it is inconsistent with this part to cancel a test based on a minor administrative mistake (e.g., the omission of the employee's middle initial) or an error that does not affect employee protections under this part. Nor does the failure of an employee to sign in Step 4 of the ATF result in the cancellation of the test. Nor is a test to be cancelled on the basis of a claim by an employee that he or she was improperly selected for testing.

Although this is considered an error that is not sufficient to cancel an alcohol test result, the employer may, nevertheless, face enforcement action under DOT agency regulations.

The second question involves how far back in time does a violation have to be considered by an employer? As one employer asked, “What is the statute of limitations on a drug or alcohol positive result?”

The bad news is that there is no such thing as a statute of limitations on drug or alcohol positive test results. Where some confusion arises is the regulatory requirement to go back for three years to check on an applicant’s drug and alcohol testing history and on the fact that records of positive test results are kept by employers for only five years. Some employers and employees interpret these two regulatory requirements as meaning that test results outside of these two time frames do not have to be considered.

The following is an example of what sometimes happens. An applicant for Company A has a positive drug test on the pre-employment test. The applicant is not hired and either goes to work in a safety-sensitive job somewhere else or in a non-safety-sensitive job with another employer. The applicant does not go through the return-to-duty SAP process.

Seven years later, this same applicant comes back to Company A and applies for a safety-sensitive job. However, the company either still has a record of the previous pre-employment drug positive result or someone in personnel remembers what happened seven years ago. A more frequent occurrence is that the company’s Consortium/Third Party Administrator, who scheduled the pre-employment test seven years ago, still has this record and notifies the company that the applicant had a positive result at that time.

Given the above scenario, applicants and some employers are saying that since the positive test result was prior to the three-year record review and/or that there are no records at the company of the positive result, that the previous positive results can be ignored. Unfortunately, this is not true. There is no time limit on the requirement that following a drug or alcohol violation, an individual must complete a SAP evaluation and the return-to-duty process before being able to perform safety-sensitive duties. This responsibility not only rests on the employer’s shoulders, but also on the individual.

Once again, going back to the rule text, Section 40.285 When is a SAP evaluation required?- spells out the regulatory requirement in paragraph (a):

As an employee, when you have violated DOT drug and alcohol regulations, you cannot again perform any DOT safety-sensitive duties for any employer until and unless you complete the SAP evaluation, referral, and education/treatment process set forth in this subpart and in applicable DOT agency regulations. The first step in this process is a SAP evaluation.

SOME OLD QUESTIONS WITH THE SAME OLD ANSWERS

2010-06-25T08:40:00.001-07:00

Recently, a couple of old questions have come up again and may warrant a response for the benefit of those employers who have not heard them before or who have forgotten the answers.

If an employee (driver) fails to show up at a collection site, who makes the determination that this is a refusal? Believe it or not, we got several different answers from employers. In this case, the first thing to do is see what the rule text actually states. Yes, the rules do provide answers in most cases.

Part 40.61(a) directs the collector to do the following: “ When a specific time for an employee's test has been scheduled, or the collection site is at the employee's work site, and the employee does not appear at the collection site at the scheduled time, contact the DER to determine the appropriate interval within which the DER has determined the employee is authorized to arrive. If the employee's arrival is delayed beyond that time, you must notify the DER that the employee has not reported for testing…”

So what is a refusal? Per 40.191(a)(1), a refusal is when employees: Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer. This includes the failure of an employee (including an owner-operator) to appear for a test when called by a C/TPA (see §40.61(a));

The confusion here lies in the interpretation of who actually makes the final decision that this is a refusal to test. It is obvious that the collector makes the call that a particular situation exists, i.e., the driver did not show up for testing or appeared several hours after the time designated by the DER. However, in most cases, it would be the DER who attempts to discover all the details of what actually happened. Was the driver notified of the requirement to go to the collection site, when was the notification issued, what extenuating circumstances occurred during this scenario, and what are company policies related to this subject.

Lets break down in more detail the process described above. The rules require the driver to proceed to the collection site immediately after notification. Part 382.305(l) states: Each employer shall require that each driver who is notified of selection for random alcohol and/or controlled substances testing proceeds to the test site immediately; provided, however, that if the driver is performing a safety-sensitive function, other than driving a commercial motor vehicle, at the time of notification, the
employer shall instead ensure that the driver ceases to perform the safety-sensitive function and proceeds to the testing site as soon as possible.

The issue here is, was the notification properly carried out and when did the driver actually leave to go to the collection site. Some employers actually tell a driver that he/she has to be at the collection site “that afternoon” or “before the day ends”. This generally gives the driver who is using drugs sufficient time to obtain substituted urine or an adulterant before coming to the collection site. It is also not the correct procedure that the employer should follow.

Presuming the notification was done correctly, the DER then has to determine why the driver did not show up or was late at the collection site. Was the driver given the correct address of the collection site? Yes, there have been situations where the DER was not aware that the company’s collection site had changed and sent the driver to the wrong place. Is this a refusal? Of course not. The driver complied with the proper instructions and it is not the driver’s fault that he/she was sent to the wrong collection site. Being late for the collection because the driver had to pick up the kids at school is not an appropriate reason for being late or not showing up at the collection site. Being in a car accident on the way to the collection site is a reasonable excuse, provided the DER can obtain documentation from a police report or other source that the driver was truly involved in an accident that prevented him/her from proceeding to the collection site.

And finally, what is the company policy related to this situation? Does it spell out specifically what a driver has to do once he/she is notified to proceed to a collection site? Does it clearly identify those situations that can be appropriate reasons for being late or not arriving at the collection site versus those that are not acceptable by the company? Remember, your company policy will be used to determine compliance during any legal or administrative proceedings.

Bottom line then, in most cases the DER will make the determination if a refusal to test exists when a driver is late or does not show up at the collection site. However, the DER has to apply this decision in a reasonable manner – it may well be challenged by an inspector during a safety audit. Also, if an employer obtains its services through a consortium/ third party administrator (C/TPA), this third party will generally try to provide guidance to the DER in these cases. The C/TPA is the one who arranges the specimen collections and knows if a test was conducted or not. They will generally contact the DER in the cases discussed above and provide guidance on how to proceed. DERs and companies should pay close attention to this, since most C/TPAs have experience in this area and their goal is to ensure that the employer operates the DOT drub and alcohol program according to the rules.

The second issue that has come up – again – is related to a driver returning to duty after a violation. If the driver has been out longer than 30 days, does the employer have to conduct a pre-employment test and a return-to-duty test?

Here is an interpretation from the Federal Motor Carrier Safety Administration on this issue (382.309): *Question 1: A driver has tested positive and completed the referral and evaluation process up to the point of being released by the SAP for a return-to-duty test. The driver no longer works for the employer where he/she tested positive. The driver applies for work with a new employer. Must the new employer conduct two separate controlled substances tests (one pre-employment and one return-to-duty), or will one test suffice for both purposes? Guidance: An individual, who has complied with the education/treatment process as required under 49 CFR Part 40, Subpart O, but has not submitted to a return-to-duty test, and is seeking employment with a new employer, a single test will suffice to meet the requirements of §382.301 and §382.309 only when the new employer would be required to conduct both tests on the same day. *Editor’s Note: This interpretation was issued after the interpretations were published in the Federal Register in April 1997.
So, yes, the employer could roll up both tests into one if both are to be conducted on the same day. This interpretation was written before the mandated direct observation testing for return-to-duty. However, Part 40 states that if a direct observation collection was to be conducted, but was not, the driver must be recalled for a direct observation collection. So, we would have to assume that this kind of test - even though it is a combined pre-employment and return-to-duty test - would be under direct observation.
Bottom line for all of the above is – document, document, and document.

Comprehensive Safety Analysis 2010 (CSA 2010)

2010-05-17T13:09:00.000-07:00

A number of employers have raised questions and concerns related to the Federal Motor Carrier Safety Administration’s (FMCSA) Comprehensive Safety Analysis 2010 (CSA 2010) initiative and its impact on the highway industry. A lot of confusion, misinformation, and misconception abounds and is causing anxiety for many employers.

Comprehensive Safety Analysis 2010 is a new FMCSA safety program to improve large truck and bus safety and ultimately reduce crashes. It introduces a new enforcement and compliance model that allows FMCSA and its state partners to contact a larger number of carriers earlier in order to address safety problems before crashes occur.

CSA 2010 replaces SafeStat with a new Safety Measurement System (SMS) that measures the previous two years of roadside violations and crash data. With SMS, every inspection counts, not just out-of-service violations, and both driver and carrier safety performance are monitored.
CSA 2010 is currently being tested in six states. When CSA 2010 is fully implemented by the end of 2010, SMS will replace the Safety Status (SafeStat) measurement system as FMCSA’s tool to identify high-risk motor carriers requiring interventions in order to improve safety on the Nation’s roads. SMS will evaluate the safety of individual motor carriers by considering all safety-based roadside inspection violations, not just out-of service violations, as well as State-reported crashes, using 24 months of performance data. SMS will assess each carrier’s safety performance in each of the Behavior Analysis and Safety Improvement Categories (BASICs): Unsafe Driving, Fatigued Driving (Hours-of-Service), Driver Fitness, Controlled Substances/Alcohol, Vehicle Maintenance, Cargo-Related, and Crash Indicator. SMS calculates a measure for each BASIC by combining the time and severity weighted violations/crashes (more recent violations are weighted more heavily) normalized by exposure (e.g. number of power units or number of relevant inspections). Applying a similar approach to that used in SafeStat, SMS converts each carrier’s BASIC measures into percentiles based on rank relative to peers. SMS will be updated monthly.

There are six important differences between the new Safety Measurement System (SMS) and the current measurement system, SafeStat:
1. SMS is organized by seven specific behaviors (BASICs) while SafeStat is organized into four broad Safety Evaluation Areas (SEAs).
2. SMS identifies safety performance problems to determine the intervention level while SafeStat identifies carriers for a compliance review.
3. SMS emphasizes on-road performance using all safety-based inspection violations while SafeStat uses only out-of-service and selected moving violations.
4. SMS uses risk-based violation weightings while SafeStat does not.
5. SMS will eventually be used to propose adverse safety fitness determination based on a carrier’s own data while SafeStat has no impact on an entity’s safety fitness rating.
6. SMS provides a tool that allows investigators to identify drivers with safety problems during carrier investigations.

A carrier who fails an audit is notified within 45 days and given 60 days to correct the problem or lose its operating authority. Passenger carriers and hazmat haulers are given only 45 days to correct violations.

Under the new rules a carrier automatically fails if an auditor finds a single occurrence of these violations. FMCSA looked back at audits conducted in a recent five year period and estimated that 47.9% would have been failures under the new rules. Since about 40,000 audits are done each year, that means more than 19,000 Motor Carriers could now fail annually. “One would not necessarily expect such a high failure rate to persist after the rule is implemented,” FMCSA noted in a December 2008 Federal Register notice. “Upon implementation of this rule, many carriers will take the appropriate action to pass the stricter new entrant safety audit, and the actual failure rate will be significantly lower.”

Safety regulations that are being called the “15 deadly sins” that will result in failure of a motor carrier entrant audit:
1. Failing to implement an alcohol and/or controlled substances testing program.
2. Using a driver who has refused to submit to an alcohol or controlled substances test required under Part 382.
3. Using a driver known to have tested positive for a controlled substance.
4. Failing to implement a random controlled substances and/or alcohol testing program.
5. Knowingly using a driver who does not possess a valid CDL.
6. Knowingly allowing, requiring, permitting, or authorizing an employee with a commercial driver’s license which is suspended, revoked, or canceled by a state or who is disqualified to operate a commercial motor vehicle.
7. Knowingly allowing, requiring, permitting, or authorizing a driver to drive who is disqualified to drive a commercial motor vehicle.
8. Operating a motor vehicle without having in effect the required minimum levels of financial responsibility coverage.
9. Operating a passenger carrying vehicle without having in effect the required minimum levels of financial responsibility coverage.
10. Knowingly using a disqualified driver.
11. Knowingly using a physically unqualified driver.
12. Failing to require a driver to make a record of duty status.
13. Requiring or permitting the operation of a commercial motor vehicle declared "out-of-service" before repairs are made.
14. Failing to correct out-of-service defects listed by driver in a driver vehicle inspection report before the vehicle is operated again.
15. Using a commercial motor vehicle not periodically inspected.

There are five important differences between CSA 2010 interventions and FMCSA’s current compliance review (CR):
1. CSA 2010 provides a set of tools to address carriers' safety problems; the CR is a one-size-fits all tool.
2. CSA 2010 interventions provide the ability to focus on specific safety problems while the CR requires a broad examination of the carrier.
3. CSA 2010 interventions focus on improving behaviors that are linked to crash risk; CR is focused on broad compliance based on a set of acute/critical violations.
4. CSA 2010 focused onsite investigations and offsite investigations are less resource intensive and less time consuming for the carrier; CRs are resource intensive.
5. CSA 2010 investigations may take place at a carrier’s place of business or offsite; CRs are generally conducted onsite
Under CSA 2010, all carriers--and eventually all drivers--with sufficient safety data available will receive a safety rating that is periodically updated. CSA 2010 intends to use new data--such as information from police accident reports about driver-related factors contributing to a crash--and improve existing data sources--by, for example, using its database of licensed commercial drivers to identify all drivers with convictions for unsafe driving practices, as well as the carriers they work for--to enable a more precise assessment of safety problems.

Below are three actions that a carrier can do to prepare for CSA 2010:
Check and update your records: Ensure your Motor Carrier Census Form (MCS-150) is up-to-date and accurate. Routinely monitor and review inspection and crash data (http://ai.fmcsa.dot.gov or through FMCSA’s Portal).

Maintain copies of inspection reports and evidence related to any observed violations, identify and address trends or patterns in your company, and challenge any potentially incorrect data using DataQs(https://dataqs.fmcsa.dot.gov/login.asp). FMCSA is currently exploring the option of providing motor carriers the ability to review their own safety performance data by Behavior Analysis and Safety Improvement Category (BASIC) prior to the Safety Management System (SMS) launch; stay tuned for forthcoming information on this topic, www.csa2010.fmcsa.dot.gov.

Visit the CSA 2010 Website: FMCSA regularly updates materials on the CSA 2010 website -www.csa2010.fmcsa.dot.gov. You will find explanations, answers to questions, tips, and guidance. You can sign up for an email subscription or RSS feed to receive the most up-to-date information. You can also submit questions and review a full set of Frequently Asked Questions (FAQs). Be sure to review the materials about SMS and the new BASICs – understanding the new SMS is an important step in preparing for CSA 2010. Carriers will be able to preview their SMS data in the near future and they should take advantage of this opportunity. Monitoring the CSA 2010 Website will alert carriers to when and where the preview will be available.
Ensure compliance: Review your inspection and violation history for the past two years. Identify patterns, trends, and areas needing improvement and begin to address these now. Examine your business processes to determine how they may be contributing to any safety compliance problems. Take steps to increase your drivers’ awareness that inspections are more important than ever, that all violations count, not just Out-of-Service violations, and that their performance directly impacts their driving records and the safety assessment of their employing carrier.

DOT PUBLISHES NOTICE OF PROPOSED RULEMAKING FOR DRUG & ALCOHOL TESTING

2010-03-30T10:40:00.001-07:00

Those of you who read the January issue of this publication may remember the comment that the U.S. Department of Transportation (DOT) was going to publish a notice of proposed rulemaking (NPRM) in the near future. Well, here it is; on February 4, 2010, DOT published the NPRM for 49 CFR Part 40. A copy may be obtained from the Federal Register web site at: http://edocket.access.gpo.gov/2010/pdf/2010-2315.pdf

Why is DOT doing this? As mentioned last month, DOT is required by The Omnibus Transportation Employee Testing Act of 1991, to use laboratories certified by, and testing procedures of, the U.S. Department of Health and Human Services (HHS) to ensure ``the complete reliability and accuracy of controlled substances tests.'' Since Congress specifically limited the scientific testing methodology upon which the DOT can base its drug and alcohol testing regulations, the DOT must follow the HHS scientific and technical guidelines. The NPRM is an attempt by the DOT to amend certain provisions of its drug testing program to create consistency with the new technical requirements established by the HHS Mandatory Guidelines.

The major changes that the DOT is proposing are as follows:

1. The DOT proposes changing some of the definitions and adding a few new ones to make them consistent with the HHS definitions.

2. The DOT proposes to allow employers to have the option to choose between using a full service drug testing laboratory and an Instrumented Initial Test Facility (IITF).

3. The DOT wants to add IITF’s to the laboratory section of their regulation and spell-out how an IITF should perform urine drug testing.

4. The DOT is proposing to adopt the following additional HHS laboratory testing requirements:

- Conduct initial testing for methylenedioxymethamphetamine (MDMA) commonly known as ``ecstasy,''
- Conduct confirmatory testing for methylenedioxyamphetamine (MDA), and methylenedioxyethylamphetamine (MDEA), which are close chemical analogues of MDMA,
- Conduct initial testing for 6-Acetylmorphines (Heroin),
- Lower the initial test and confirmatory test cutoff concentrations for Amphetamines; and
- Lower the initial test and confirmatory test cutoff concentrations for Cocaine.

5. The DOT is also proposing to amend Appendix B so that IITF’s will be required to report semi-annual test results to employers and Appendix C so that IITF’s would report semi-annual test data to the DOT.

6. The HHS Mandatory Guidelines will require that nationally recognized Medical Review Officer (MRO) certification entities or subspecialty boards for medical practitioners must have their qualifications, training programs, and examinations approve by the HHS on an annual basis. The DOT is seeking comments on whether Part 40 should also require these groups to be approved.

There are a number of other issues that the DOT also addresses in the NPRM. Many of these are related to the HHS procedural requirements, some of which the DOT does not want to adopt. For example, the DOT does not propose to require observers to receive advanced formalized training to learn about the steps necessary to perform a direct observation collection. The DOT does not propose to change their current requirement that a collector need not obtain prior approval from a collection site supervisor before performing a directly observed collection. Also, the DOT will continue to require collection sites to keep Copy 3 of the Custody and Control Form for only 30 days versus the new HHS requirement to keep the form for two years.

Other issues are related to the HHS requirement to audit 5 percent or a maximum of 50 collection sites; a 3 percent level of blind specimen testing versus current DOT 1 percent requirement; MRO record retention time frame and type of records that MROs maintain; and limits on IITF and MRO relationships.

A few of the issues may be of interest to employers. For example, what exactly is an Instrumented Initial Test Facility (IITF)? It is a mouthful, but the answer is relatively simple. The HHS published Proposed Revisions to their Mandatory Guidelines in the Federal Register on April 13, 2004. At that time, they proposed establishing permanent locations where initial testing, reporting of results, and record keeping were to be performed under the supervision of a responsible technician. These facilities would be certified by the HHS, but would not have the full capabilities to conduct confirmation testing. Any non-negative results would have to be forwarded to one of the current certified laboratories. The assumption was that some laboratories might want to establish IITFs to be closer to their customers and provide faster negative results to employers.

At this point, there are no IITFs established, so it is difficult to state how effective and how widely they will be used. As mentioned, the DOT will give an employer the option to use an IITF or a “regular” laboratory. One scenario, which may require watching, is whether or not use of IITFs will increase the lag time for reports related to non-negative results. In other words, if an IITF comes up with a non-negative result, they must package the specimens and forward them to the laboratory that can conduct confirmation testing. Will this increase the length of time for reporting non-negative results remains to be seen?

Although not clearly stated, another issue of interest is that the HHS will require initial testing for 6-Acetylmorphines without waiting for the MRO to request this test. The presence of this metabolite is proof of heroin use and the MRO does not have to find clinical evidence of illegal drug use. Of importance to employers is the fact that most of these changes – which may change again after comments from the public – will need to be added to their current drug and alcohol policies.

The DOT is requesting comments to their NPRM by April 5, 2010. Although the proposed changes do not seem to be dramatic or extensive, nevertheless, it behooves employers to read the NPRM and provide input to the DOT. Procedures on how to provide comments are listed in the NPRM.

DOT Drug and Alcohol Testing - Past, Present and Future

2010-01-20T08:33:00.000-08:00

Well, this is the start of a new year and a time to reassess where we have been, where we are, and where we are going. Last year, 2009, was a year that concentrated primarily on one item in the DOT drug-testing program – direct observation testing for return-to-duty and follow-up testing. All the energies and efforts of the DOT were spent defending their decision – and they were ultimately successful in the courts.

Interestingly enough, although this seemed a controversial subject, there really was little fallout from this policy decision – collection sites seemed to accept the fact that they now had to do direct observation collections in these situations (something that employers had an option to do anyway under the previous policy) and employers seemed to accept this change as the price of doing business. Other then that and the fact that the economy was taking a hit, 2009 was a dull year.

Current status? Employers must continue to meet the Federal regulatory requirements for conducting drug and alcohol testing; the program is not going away. As the economy improves, employers must not forget that drug testing is one of those operational necessities that must be in place – no different than other personnel and operational policies and procedures that they have to have in place to meet Federal and other legislative requirements to stay in business. As employers return to a hiring posture, more pre-employment drug and alcohol testing will have to take place and employers need to plan for this added cost increase.

The future – since no one can predict it – is a lot more fun! What will happen is any ones guess. However, there are a few indicators that the program will get a little more complicated and require more diligence to implement. Two things will be happening within the next few months. On November 25, 2008, the Department of Health and Human Services (HHS) published a revision of their Mandatory Guidelines for Federal Drug Testing Programs, which will become effective May 1, 2010. This Final Notice addresses collection and testing of urine specimens, the requirements for the certification of Instrumented Initial Test Facilities (IITFs), the role of and standards for collectors and Medical Review Officers (MROs), and adds additional drugs to those currently being tested. A copy of the revised guidelines is available at: http://workplace.samhsa.gov/DrugTesting/Files_Drug_Testing/Federal/frmanguide2008.pdf.

Proposed Revisions to the Mandatory Guidelines addressing the use of point of collection testing (POCT), oral fluid testing, sweat patch testing, hair testing, and associated issues will be published at a later date. According to the HHS, with regard to the use of alternative specimens including hair, oral fluid, and sweat patch specimens in Federal Workplace Drug Testing Programs, significant issues have been raised by Federal agencies during the review process, which require further examination, and may require additional study and analysis. When and if HHS approves use of alternative specimens, then the whole landscape of Federal drug testing will change. Employers will have major changes to contend with and a staggering amount of new procedures to implement.

The second item of interest is that HHS published a Notice of Proposed Revisions to the Federal Custody and Control Form (CCF), revising the form to conform to the revised Mandatory Guidelines, which will expand the drug testing profile to include new drug analytes:

methylenedioxymethamphetamine (MDMA) commonly known as ``ecstasy,''
methylenedioxyamphetamine (MDA), and methylenedioxyethylamphetamine (MDEA) which are close chemical analogues of MDMA.

A major change is to discontinue recording split specimen test results on Copy 1 of the Federal CCF. Instead, Step 5b of Copy 1 will be used to identify the split testing laboratory (i.e., laboratory name, city, and State), to indicate that the split specimen was tested, and to refer to a separate laboratory report for the split specimen test results. These new regulatory actions will require that the Federal CCF be modified to accommodate the new rule changes. Employers, and especially collection sites and MROs are encouraged to review this document and provide their input to HHS by January 19, 2010. (A copy of the Notice is available at http://edocket.access.gpo.gov/2009/pdf/E9-27371.pdf.)

So, what does all this have to do with the DOT drug testing requirements? Good question and here is the final answer – everything. The Omnibus Transportation Employee Testing Act of 1991, requires the DOT to use the laboratories certified by, and testing procedures of, the U.S. Department of Health and Human Services to ensure ``the complete reliability and accuracy of controlled substances tests.'' Since Congress specifically limited the scientific testing methodology upon which the DOT can rely in making its drug and alcohol testing regulations, The DOT must follow the HHS scientific and technical guidelines, including the amendments to their Mandatory Guidelines. However, the DOT has some options on procedural aspects of the program and these may, in fact, be different from those published by the HHS.

What does this mean in the long run? Well, the DOT will have to publish interim guidelines or interim rule making, give the public time for comments, and then publish a final rule. All of this will take time and the DOT will probably set up reasonable time frames to accomplish these changes. Forewarned is forearmed; employers will have to be aware of these upcoming changes and in some cases, like the additional drugs for testing, will have to add these changes to their current policies.

Bottom line: stay tuned to this publication and we will keep you up to date. Lets hope that 2010 will be a more productive year for everyone.

Medical Marijuana and the DOT

2009-12-29T07:30:00.000-08:00

U.S. Department of Justice Guidance on Medical Marijuana and Its Impact on DOT Drug Testing

On October 19, 2009, the U.S. Department of Justice (DOJ), Office of the Deputy Attorney General, issued a memorandum providing guidance to prosecutors in states that have authorized the use of medical marijuana. Because laws vary in their substantive provisions and in the extent of state regulatory oversight, both among the enacting states and among local jurisdictions within those states, DOJ felt that rather than develop different guidelines for every possible variant of state and local law, uniform guidance to federal investigators and prosecutors in these states would provide consistent and uniform enforcement. To a large degree, the memorandum was intended to address the shortfall of resource allocation in the field.

Part of the memorandum states, “The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department's efforts against narcotics and dangerous drugs, and the Department's investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.”

This, of course, generated a myriad of questions from transportation employers, employees, and the general public. The core of the questions was does this guidance in any way now “authorize” or sanction the use of medical marijuana and how are employers to treat employees in those states that have legalized medical marijuana?

The DOT Office of Drug and Alcohol Policy and Compliance in a recent statement indicated that they have also received several inquiries about whether the DOJ advice to Federal prosecutors regarding pursuing criminal cases will have an impact upon the Department of Transportation’s longstanding regulation about the use of marijuana by safety-sensitive transportation employees – pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire-armed security personnel, ship captains, and pipeline emergency response personnel, among others.

DOT made it clear that the DOJ guidelines will have no bearing on the Department of Transportation’s regulated drug testing program. DOT will not change their regulated drug-testing program based upon these guidelines to Federal prosecutors. The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.

That section states:
§ 40.151 What are MROs prohibited from doing as part of the verification process?
As an MRO, you are prohibited from doing the following as part of the verification process:

(e) You must not verify a test negative based on information that a physician recommended that the employee use a drug listed in Schedule I of the Controlled Substances Act. (e.g., under a state law that purports to authorize such recommendations, such as the “medical marijuana” laws that some states have adopted.)

Therefore, Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use “medical marijuana.” DOT also noted that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.

So much for the legal parameters surrounding this issue. What is the average employer to do when he/she is challenged by an employee that a drug positive result should be overturned because the employee was told by a physician to us marijuana and that even the Department of Justice is no longer considering it a “crime”. Well, for starters, you should try to nip this issue in the bud. Ensure that your drug and alcohol policy (if it does not already state this) specifically indicate that use of “medical marijuana” is not an acceptable medical explanation for a drug positive result. You may even want to state that even if the employee has “not been charged” with the crime – use of marijuana – that still does not supercede the DOT position. Any use of marijuana, even if it is unintentional – someone slipped me marijuana-laced brownies – is not an acceptable medical explanation.

Going back to the DOJ memorandum, we need to look at the following: “Indeed, this memorandum does not alter in any way the Department's authority to enforce federal law, including laws prohibiting the manufacture, production, distribution, possession, or use of marijuana on federal property. This guidance regarding resource allocation does not "legalize" marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter. Nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.”

Bottom line is that the DOJ memorandum has absolutely no impact on the DOT drug and alcohol program nor does it impact on an employer’s enforcement of the current drug testing requirements.

DOT MAKES A FINAL, FINAL, FINAL DECISION ON DIRECT OBSERVATION COLLECTIONS

2009-11-25T10:25:00.001-08:00

Those of you who have been reading this column over the last few months are probably saying enough is enough, and rightfully so. It has taken DOT a year to resolve a simple aspect of their rule – mandatory direct observation (DO) urine specimen collection for return-to-duty (RTD) and follow-up (FU) drug testing. As the saying goes, the wheels of government grind slowly.

So, what is the final, final answer? Believe it or not, confusion still reigns. Although DOT has to be complimented on sticking to their guns, the courts dragged this issue out ad infinitum. So, here is the final, final answer: as of August 31, 2009, all RTD and FU urine specimen collections must be conducted using DO procedures; no ands, ifs, or buts.

Now you are asking yourself, so what’s the big deal? Well, not everyone gets the word and not everyone interprets it the same way. Some individuals and organizations are interpreting this final rule guidance from DOT as meaning that the requirement to lower pants/skirt and raise shirt/blouse as affecting only RTD and FU collections. Wrong! First, the whole legal issue for a year has been about making DO mandatory for RTD and FU. That’s it!

The requirement to drop pant/skirt and raise shirt/blouse for DO collections has been in effect for all DO collections since August 25, 2008 – to include DRT and FU if the employer directed it. So, the bottom line for this item is: ALL DO COLLECTIONS REQUIRED BY THE RULES ARE MANDATORY AND REQUIRE DROPPING PANTS/SKIRT AND RAISING SHIRT/BLOUSE. In other words, as an employer, you now have no discretion to determine if a DO collection should or should not be conducted. At this point, these are the triggering events that cause a DO collection – and you must do that – no options:

· The employee attempts to tamper with his or her specimen at the collection site.
-- The specimen temperature is outside the acceptable range;
-- The specimen shows signs of tampering ~ unusual color / odor / characteristic; or
-- The collector finds an item in the employee’s pockets or wallet, which appears to be brought into the site to contaminate a specimen; or
-- The collector notes conduct suggesting tampering.

● The Medical Review Officer (MRO) orders the direct observation because:
-- The employee has no legitimate medical reason for certain atypical laboratory results; or
-- The employee’s positive or refusal [adulterated / substituted] test result had to be cancelled because the split specimen test could not be performed (for example, the split was not collected).

● The test is a Return-to-Duty or a Follow-Up test.

What else is happening? Well, there are collection sites that apparently still have not gotten the word and conduct RTD and FU collections under the old procedures. Guess what? If that happens, you as the employer will be out some money! Why? Because § 40.67(n) reads: As the collector, when you learn that a directly observed collection should have been collected but was not, you must inform the employer that it must direct the employee to have an immediate recollection under direct observation.

This statement is a little confusing because it lays the responsibility on the collector, but that’s because § 40.67 addresses the whole direct observation collection process – and that mostly deals with the collector. In essence, as an employer, if you find out that a DO collection was to take place and did not, your responsibility is to send the employee for another test and ensure that it is done under DO conditions. Here’s the catch: you will have to pay for another test, because the first one (not observed) does not count.

If you have any employees who will be returning to safety-sensitive duty or are currently in a FU program, it is to your benefit to do two things. One, inform these employees that the rules have changed – when they take an RTD or FU test, it will be observed (and don’t forget to tell them that they will have to drop their pants/skirt and lift their shirt/blouse – if they don’t know this, they will absolutely go bonkers and may refuse to take the test). Secondly, when an RTD or FU collection is to take place, make the effort to call the collection site and ensure that they know what to do and that they have available a same gendered individual to conduct the collection. If need be, as an employer, you may have to send a management person with the employee to be the observer. It would also not hurt to contact your consortium/third party administrator (if you have one) to make sure that they are also on the same sheet of music.

Bottom line: All DO collections involve the employee having to drop his/her pants/skirt to mid-thigh, raise shirt/blouse up to the navel, and turn around completely once. The observer must be of the same gender. The employer no longer has the option to determine if a DO collection is to be conducted; if it’s required by the rules, it must be done. And finally, all RTD and FU collections must be conducted using DO procedures. If the required DO is not accomplished, a second re-collection under DO must be done. So, lets shelf this DO issue and concentrate on operating a viable and cost-effective drug and alcohol testing program.

EMPLOYER/DER INVOLVEMENT IN SHY BLADDER COLLECTIONS; WHAT DO YOU DO?

2009-08-04T10:12:00.001-07:00

Recently, a number of cases came to light which indicate that employers are still not clear on what to do in certain situations related to shy bladder collections.

Typical scenario: employee cannot contribute a sufficient quantify of urine thereby starting the “shy bladder” process. This means that the employee has up to three hours in which to contribute a urine specimen of sufficient quantity (40mL). The clock starts ticking and the employee may make several attempts to provide a specimen. Trouble creeps in when a couple of hours have gone by; the employee cannot provide enough urine and is starting to get anxious.

In some cases, the employee calls the employer/DER and states that there is a problem providing a specimen. Frequently, the employer/DER tells the employee to go back to work or home and come back the next day to provide a sample.

In other cases, the clinic is about to close and the employee only had two hours in which to provide a sample. Either the clinic or the employee calls the employer/DER, presents the situation and the employer/DER directs the employee to return to work or go home and come back the next day.

Frequently, employers call and ask how to categorize the test conducted the next day, i.e., if the original was a random should the test the next day also be considered as random. This indicates that they have no clue as to how the process is supposed to work or what are the regulatory requirements.

Here are a few items to address before you, as an employer, get caught in a bind. In most cases, the employer controls when an employee is scheduled to go for a drug test. The rules direct testing to be conducted spread throughout the work shift. In other words, some tests should be conducted at the start of a shift, others during the workday, and some at the end of the work shift. However, as the employer, you should know the time your collection sites are operational. So, if you direct an employee to go to a clinic for a collection, it would be advisable to send the employee at a time that would provide at least three hours to complete the collection before the clinic closes. For example, if the clinic closes at 6:00pm you should try to get your employees in for a collection no later than 3:00pm in case there is a shy bladder and a requirement to provide at least three hours for the employee to provide a specimen kicks in.

Of course, an alternative is that you or your Third Party Administrator make provisions for the clinic to stay open past their regular hours should a shy bladder situation arise. Then you can send your employee for a test at any time the clinic is open. You can also make provisions that should your main collection site/clinic close, the employee can be transported (under supervision) to another clinic that is open longer hours. Under no circumstances should you authorize your employee to leave a collection site before the three hours for collection have expired. Should that happen, you must immediately send the employee back to the clinic for a collection – as soon as you are aware of the situation or the next day. Do not postpone this to later in the day or the second day. And yes, this would be considered the same test type, i.e., if the original test was a random test, then it still remains a random test. Of course, an auditor will take a major exception to this and you need to be prepared on how to respond to why you told the employee to abort the original testing process.

A follow-up on a previous issue: DOT still has not received a court decision on the whole issue of mandatory direct observation for return-to-duty and follow-up testing. They are awaiting a court decision and as soon as this is forthcoming, everyone will be notified.

USE OF A SPOUSE’S PRESCRIPTION MEDICATION

2009-04-07T13:15:00.000-07:00

WILL YOUR EMPLOYEE LOSE HIS/HER JOB BECAUSE OF THIS?

Recently, this question has again been raised indicating that there is still some confusion or misunderstanding about this whole area. If an employee in a safety-sensitive (SS) position tests positive on a drug test and admits to using a spouse’s prescription medication, what happens?

In most cases, as an employer, you will not know that this is the explanation the employee provided to the medical review officer (MRO) to justify the positive result. The whole process of MRO review is generally transparent to the employer and is in place to prevent inappropriate disclosure to the employer of an employee’s legitimate use of medications. What this means is that if a drug test is reported as positive for a drug that could be attributed to a drug available through a medical prescription, the MRO would determine if the employee has a legitimate prescription for that particular drug and if he/she is using it appropriately. Furthermore, the MRO would make the determination that use of that drug (prescription medication) will not impact on safety as related to the employee’s functions. The reported outcome would be a negative result.

Where the problem raises its head is when the employee tells the MRO that he/she used a spouse’s or other family member’s prescription medication. Although many employers may consider this “no big deal” – after all, many people use others prescription drugs to self-medicate, DOT considers this inappropriate for someone in a SS position. In face, DOT’s guidance is that “an employee who acknowledges taking another individual’s controlled substance prescribed medication has admitted unauthorized use of a controlled substance and the result should be verified as positive.”

Back to the MRO and the verification process. There are those MRO’s who, after assuring themselves that the employee is telling the truth (e.g., brings in a bottle with the spouse’s name on it and for the same drug or drug metabolite; the laboratory results and levels are consistent with the drug in the prescription), may in fact downgrade the positive laboratory result to a negative. As an employer, you will not know this since the process is intentionally transparent as already mentioned. However, other MROs will call this result as positive since use of a spouse’s prescription medication is not a legitimate medical explanation as to why the employee tested positive. In a way, this is no different than an employee saying he/she unknowingly ate a marijuana brownie or a friend gave him/her a pill for this ferocious headache. The explanation may be true, but it is not a legitimate medical explanation. Legitimate in this case means the employee had a bona fide prescription written for him/her for a medication containing the drug for which the employee tested positive.

So, as an employer, if you don’t really know what is happening during the MRO verification process, what are you supposed to do? If you receive a positive result from the MRO and it is for use of a spouse’s prescription medication, you treat is as a DOT drug positive result and must follow all the regulatory requirements directed by DOT rules. Some employers have raised the issue of unfairness in this process – the employee can lose his/her job for simply taking a spouse’s medication; to many, this seems unfair. Speaking of fairness, employers need to remember that there are many individuals who use illegal drugs and use the excuse that it was from a spouse’s prescription – they might even have a phony prescription bottle handy to show to the MRO. Additionally, even if the situation is true (i.e., the employee did, in fact, use a spouse’s mediation) there are safety concerns that come into play. First, use of that medication may have subsequently impaired the employee and secondly, this may diminish the employee’s concern about the impact of the medication and may encourage further use in the future – definitely a safety risk.

Back to the original question: what should the employer do in this situation. Here are a couple of specific actions that would prevent potential problems described in the above scenario:
Check your written drug and alcohol policy. It probably does not address this issue at all. Your policy should include specific statements that use by SS personnel of a spouse’s or other family member’s prescription medication is prohibited by Federal regulations and will not be accepted as an explanation for a drug positive result. If you are updating your policy, make sure your employees see or get a copy of this update.

Determine what your company policy will be if the MRO notifies you that the positive result is for use of a spouse’s prescription medication. For example, your policy may be that anyone with a positive result is terminated. You may want to treat employees who used a spouse’s medication differently, i.e., not terminate them. You still have to follow DOT requirements, i.e., removal from SS functions, Substance Abuse Professional evaluation, follow-up testing, etc. Whatever you decide, it should be clearly spelled out in your policy. Note: you may want to indicate that an employee gets only one bite at the apple – after the first incident, the employee is specifically told that he/she can’t use a spouse’s prescription again to justify a drug positive result.

If an employer decides to go with a different policy for employees who used a spouse’s prescription, the employer will need to talk with the MRO. The MRO cannot disclose to the employer anything about the verification process. However, in the given situation, the MRO can ask the employee for permission to relate to the employer the fact that the result of a drug test is positive, but it is from use of a spouse’s prescription medication. An employee can always refuse to give permission or, based on company policy, may want this information forwarded to the employer.

Make sure there is a clear distinction between Federal test results and tests performed under company authority. Obviously, the above suggestions are geared toward DOT testing. Company authorized testing may be different, although the employer needs to keep in mind any state requirements related to drug testing.

Understand that the above actions are not regulatory requirements. However, inclusion in company drug and alcohol policy of the company’s position related to use of spousal medication is good practice; DOT does require a policy to describe prohibited behavior (See 382.601). Given the current state of the economy and the cost of firing, replacing, and training a new employee, employers may be more amenable in trying to keep a current employee on the rolls if that individual has been a productive and responsible worker. To that extent, the other suggestions are provided to help initiate a process in these specific cases.

Ask the Expert
Have a question for Don? E-mail him at Don.Shatinksy@concorde2000.com

Drug & Alcohol Testing During a Recession

2009-02-16T13:25:00.000-08:00

Now that almost everyone acknowledges that we are in a recession – with no real immediate outlook for improvement – employers are asking themselves what they can do to survive until the economy improves. Many companies have laid off workers, substantially decreased their workforce hoping to survive the recession. As mentioned in the January Federal Corner, some employers think they may save a few dollars by decreasing their DOT drug and alcohol testing or not testing at all.

Unfortunately, the Feds are not very sympathetic to companies ignoring Federal rules even if complying may mean a company cannot meet its financial obligations and may go under. Saving a couple of hundred dollars by not testing may give an employer a false sense of hope. However, during an audit if it is discovered that a safety-sensitive employee was to be tested, but was not, the employer may face a fine in the thousands of dollars.

Where is all of this leading? A number of employers are concerned because their safety-sensitive pool of employees has decreased substantially, thus changing the number of employees that are subject to testing. Additionally, some employers hope to increase their workforce near the end of this year, again changing their testing pool numbers significantly.

Bottom line is that many employers see the number of safety-sensitive employees fluctuating greatly during the year, creating some administrative problems in how to meet the minimal testing requirements dictated by the government.

To a large degree, those employers who are part of a consortium and have a Third Party Administrator (TPA) managing their random testing program, probably will not see much change in how their procedures work. There may be a decrease in the number of random tests conducted, but that will be based on the fact that many companies in the random testing pool are also downsizing and have fewer safety-sensitive employees. The most critical item is for the employer to ensure that as the workforce numbers change, these are provided to the TPA as quickly as possible so that the number of individuals in the pool truly reflects who is still subject to testing – otherwise, the selection numbers will be diluted and potentially subject the TPA and the companies it supports with non-compliance. Bear in mind that we are talking about random testing; pre-employment, reasonable suspicion, post-accident, return-to-duty, and follow-up testing. All which need to be accomplished as required – there is no way of decreasing these types of tests.

Problems arise if a company has the TPA maintain a separate random testing pool for that company or the company maintains one itself. Back to what was stated in the beginning of this article, how do you as a company account for the large fluctuation of employees subject to testing and still maintain the proper testing rate? This really is no different than the issue of seasonal drivers, e.g., school bus drivers. The Federal Motor Carrier Safety Administration (FMCSA) has, in the past, provided guidance on how to handle these situations. A short recap may be useful.

HOW TO COMPUTE THE AVERAGE NUMBER OF SAFETY-SENSITIVE POSITIONS FOR RANDOM TESTING?

A company random testing program (or one operated by a TPA) should take into account fluctuations in the number of safety-sensitive employees by estimating the number of random tests that must be performed over the course of a calendar year. If the workforce is expected to be relatively constant, then the number of tests to be performed in a year could be determined by multiplying the average number of employees by the testing rate.

However, because of economic factors, if you downsized in the early part of this year, but are forecasting a substantial increase near the end of the year, you must base your testing rate on the number of employees eligible to be tested at the time of each selection period. However, the total random tests conducted for the year must equal or exceed the average number of employees.

Here are a few examples used by the FMCSA to help explain this process (based on a 50% testing rate for drugs). If an employer performs random selections four times a year, the number of tests performed during each of the four testing periods must equal or exceed 50 percent of the number of safety-sensitive employees eligible to be tested (D), divided by the number of test periods per year (P). This can be expressed as:

T = 50% X D/P

T = Total random tests
D = Employees eligible to be tested
P = Number of test periods per year

Continuing this example: at the time of selection, the company determines that there were an average of 60 safety-sensitive employees eligible for testing during the first quarter of the year, 80 employees in the second quarter, 100 employees in the third quarter, and 70 employees in the fourth quarter. Using the formula above, you would have to perform 8 tests in the first quarter (50% times 60 divided by four equals 7.5, rounded up to the nearest whole number), 10 tests in the second quarter, 13 in the third quarter, and 9 in the fourth quarter, for a total of 40 tests.

Since it is difficult to project how many employees eligible for testing will be on hand later in the year, it is advisable to use the above example rather than trying to estimate the testing rate for the whole year during the first or second quarter. One thing to remember when there are large fluctuations in the number of employees eligible for testing. With a large turnover over the course of the year, a company may be employing more individuals than there are actual safety-sensitive positions. In determining the number of tests, the company should use the number of safety-sensitive positions, not the number of actual individuals employed in these positions during the selection period.

This may sound confusing, but here is an example that will clarify the process. When the first quarter selection is made on January 1, there were 60 safety-sensitive positions and all were filled. During the first quarter, 10 employees quit and were replaced by 10 new employees. Although the company had a total of 70 different employees working in these positions, at any one time only 60 were employed and that is the number used for calculating the testing rate.

During high fluctuations of employees is it better to conduct selections more often than on a quarterly basis? Probably, since it may be easier to manage the testing rate more accurately over a shorter time frame, especially if there is a projected and ongoing reduction in force or a dramatic increase.

While on the subject of random testing, just a couple of reminders. Under FMCSA rules/guidance, when drivers are off work due to long-term layoffs, illnesses, injuries, or vacations, will not return before the next selection, and are selected for random testing, there are two options open to the company:

The driver’s name could be skipped if the driver selected is going to be gone throughout the entire testing period. An alternate may be selected using a scientifically valid method.
The name could be set aside until the driver comes back from the extended leave, and the test would be conducted at that time, as long as the driver returns before the next selection is made.

Hopefully, the above information will help some employers weather the complexities and frustrations of carrying out a myriad of Federal rule requirements while at the same time fighting a battle with the current recession. One constant reminder: don’t cut corners where Federal rules, especially those related to safety, are concerned. In the long run, it will cost you more than if you just did what was required – and did it correctly.

2008 Year in Review: What's to Come in 2009?

2009-01-20T06:46:00.000-08:00

Now that 2008 is over, many of us are breathing a sigh of relief – and hoping that 09 will be better. Last year was tough for most employers: some had lower sales, some had to downsize, and others flat out went out of business. A few employers even wondered if they could cut corners on some of the Federal requirements – like drug testing (not recommended) – and save some money. Bottom line – it was rough for everyone, but some interesting things did happen and there are more to come.

In 2008, the Federal Corner addressed a myriad of subjects that should have been of interest to most employers. For those with short memories, here is a brief recap of what was discussed:

January – Record Keeping
February – Testing for Other Drugs
March – Possessing a CDL – Does That Require Automatic DOT Testing?
April – When is Random Testing Random?
May – DOT Guidance for Employers
June – Authorization to Comply with State Reporting Requirements
July – Mandatory Specimen Validity Testing
August – Pre-employment Testing and Employer’s Responsibility To Ask
September – Suspension of Direct Observation for Return-to-Duty and Follow-up Testing
October – Alcohol Testing by Law Enforcement Personnel
November – Hire/Fire Issue and Mine Safety & Health Administration Proposed New Rule
December – Holidays and Drug Testing

If your interest is peaked by some of these and you want to review some of these issues, they are in the archives.

WHAT HAPPENED IN 2008?

Well, DOT published a rule requiring mandatory specimen validity testing by all laboratories conducting DOT testing. In addition, because of the prevalence of prosthetic devices, DOT required that all directly observed (DO) collections include employees raising their shirt and lowering pants/skirts to mid-thigh. Additionally, DOT directed that DO collections for return-to-duty and follow-up be conducted using this new procedure (prior to this, DO was an employer option for these types of collections).

As of this writing, based on a legal challenge, the courts have “stayed” the requirement for mandatory DO collections for return-to-duty and follow-up. A final resolution should be coming within the month.
In an attempt to streamline some of the more complex processes, DOT stated that during an invalid result Medical Review Officer (MRO) review, an employee admission of adulterating or substituting a specimen is now a refusal to test. Also, pursuant to MRO requests, the rule closed the potentially endless loop on invalid specimen results. Employees requiring negative results (for example, pre-employment tests), when they have medical reasons for providing invalid results, will be able to obtain them through medical evaluations to rule out signs and symptoms of drug use. This may not sound like much, but it will make the whole process easier to manage.
DOT also developed a printable on-line hand out for collectors/observers describing how the new DO collection process should work. In August they also revised the Urine Specimen Collection Guidelines to reflect these new changes.

Although not directly related to the Drug and Alcohol Testing Program, the Federal Motor Carrier Safety Administration (FMCSA) published in December a final rule (effective January 30, 2009) that will have a definite impact on the whole highway industry. FMCSA amended their rule to require interstate commercial driver's license (CDL) holders subject to the physical qualification requirements of their regulations to provide a current original or copy of their medical examiner's certificates to their State Driver Licensing Agency (SDLA). They also require the SDLA to record on the Commercial Driver License Information System (CDLIS) driver record the self-certification the driver made regarding the applicability of the Federal driver qualification rules and, for drivers subject to those requirements, the medical certification status information specified in this final rule.
FMCSA also published a Notice of Proposed Rulemaking (NPRM) to establish a national registry of medical examiners. This will have a definite impact on how the process works and you are encouraged to review the NPRM and comment on this important proposed change to 49 CFR Parts 390 and 391 (Federal Register Notice, Docket Number FMCSA–2008–0363, RIN 2126–AA97). Comments should be submitted by January 30, 2009.

Additionally, on December 16, 2008 FMCSA published a final rule “New Entrant Safety Assurance Process”. This rule, effective February 17, 2009, amended the existing new entrant safety assurance regulation by raising the standards of compliance for passing the new entrant safety audit. A company must now meet 16 regulatory requirements (instead of the previous 11) that are essential elements of basic safety management control and failure to comply with any one of these, is an automatic failure of the safety audit. This includes a single occurrence of any of the following: failure to implement an alcohol/drug control testing program; using a driver know to have an alcohol content of 0.04 or greater, or who has refused an alcohol or drug test, or who tested positive for a controlled substance, and failure to implement a random drug and alcohol testing program. FMCSA is required to audit within 18 months each motor carrier owner/operator granted new operating authority.

And finally, on November 25, 2008, the Department of Health and Human Services (HHS) published the Revised Mandatory Guidelines for Workplace Drug Testing Programs effective May 1, 2010. Why would employers subject to DOT testing requirements be interested in this? Because changes by HHS to any technical aspects of drug testing have a direct impact on DOT.

These are not the only Federal rules that were initiated in 2008, but these are the ones that will have the most impact of employers who are required to conduct drug and alcohol testing under DOT regulations. So, as you can see, 2008 was a busy and productive year.

WHAT DOES 2009 HOLD FOR US?

One thing is for sure, times will continue to be hard and most employers will struggle to survive. Regardless, you will still have to meet all of the Federal requirements – safety, drug/alcohol testing, record keeping, etc. But, what does the future hold for the drug and alcohol testing program? Drug/alcohol testing is here to stay – it will not go away. Specimen validity testing is a done deal; labs are required to conduct these tests and employers must request them as part of their contract for services. The direct observation procedure (raising the shirt and lowering pants/skirts) is here to stay; the only question will be: will it apply to return-to-duty and follow-up tests?

The big change in 2009 may be that HHS will finally come to grips with some alternative specimen testing procedures, i.e., saliva testing or sweat testing. When the technical procedures are finally ironed out and these alternatives are scientifically acceptable, you will see DOT accepting the same procedures and hopefully making your life a little easier.

And finally, the Department of Labor, Mine Safety and Health Administration, had proposed an extensive drug testing rule for their industry. After the dust settles, there will be some type of Federal program in that industry and in many ways it will mirror the DOT program. So employers who are mine operators may want to become very familiar with the DOT requirements since most of these will eventually have an impact on their operations.

Lets hope that 2009 is a better year than 08 and that everyone will prosper. Just remember – don’t cut any corners where drug and alcohol testing is concerned; it will only cost you more in the long run.

Are You a Grinch Employer?

2008-12-10T06:36:00.000-08:00

DRUG/ALCOHOL TESTING AND THE HOLIDAY SEASON;
Are you going to be a “Grinch” employer?

Note: Although this is not a specific Federal issue, the following applies to both Federal and non-Federal programs.

Yes, the year is coming to a close. Time to close the books, estimate the damage/profit for this year, and maybe end the year with a couple of company parties to keep employees happy – instead of giving bonuses. Drug or alcohol test anybody at this time? Why? The year is almost over, you have met your random testing quota, and besides, who would be doing drugs during Christmas?

Well, you have to remember the purpose for having drug/alcohol testing programs – deterrence! Yes – unexpected, unannounced testing helps some of your employees to abstain from using drugs and from inappropriate use of alcohol. Unfortunately, the Holiday season is one where there are a lot of different pressures on many individuals. It is a time when some people get depressed (for a number of different reasons), some get more stressed out with the increased pace, shopping, family issues, etc., and others just get carried away with year-end celebrations.

The end result is that many people “self-medicate” themselves with prescription medication, illegal drugs, and/or increased alcohol use. Regrettably, this behavior is frequently accepted by co-workers and employers; the fact that an employee is a little off kilter, more abrasive, louder than usual, angrier are all attributed to the stress of the Holidays. Rarely, are these behaviors seen as something to get concerned about.

By the way, many employers stop all drug and alcohol testing two to three weeks before the end of the year. Frequently, this is common knowledge at the company and really a “get out of jail” card for those who want to celebrate a little harder. Also, many employers feel that since they have met their minimum random testing quota, this is all the testing they can or should do. This is a misconception. An employer can always test more than the minimum and some employers will tell their employees specifically that testing will be conducted through the Holidays – just in case some of them are planning on stepping over the line.

If you have a 24/7 operation nothing prevents you from testing even on Christmas Day. It may cost you just a little more to conduct a test, but it may potentially save you a lot more money in the long run by possibly preventing an accident that could be attributed to drug or alcohol impairment. Will some of your employees call you a Grinch? Maybe, but consider what you may have accomplished: you may have saved an employee’s life or that of someone else on the road and at the same time kept your company from facing devastating litigation.

Take a look at your random testing schedule. When was the last test conducted? What kind of testing did you conduct during this same time frame last year? Did you ever test during the Holidays since the start of the program? All of these questions should help you determine if and when you should conduct drug/alcohol tests during the Holiday season.

A more problematic issue is that of office parties and the approval or permissive use of alcohol. Many employers now have strict policies about office parties and availability of alcohol. They have learned that in most states courts will hold them accountable if an employee leaves an office party inebriated and subsequently has an accident while driving – or even falling down a staircase. This is frequently true even if the company-sponsored event is held off company premises. Obviously, if a company office party will include alcohol, make sure that there are non-alcoholic beverages available, that whoever is serving drinks pays attention to how much someone is ingesting (similar to bartenders), have food available, and of course make provisions to drive or get a taxi for anyone who is unable to drive. For sure, you do not want someone who is scheduled to start a safety-sensitive function to stop by at the party and have a drink before they go on the job.

BOTTOM LINE: You should spell out your specific concerns and requirements so that everyone knows about them – either as a Holiday reminder of company policy or maybe as part of the announcement about the party. Reaffirm that drug use during this time is not condoned and emphasize that the company may conduct drug/alcohol testing during this time frame. If you do not permit alcohol use at company parties, make sure you state that in no uncertain terms. Common sense is a key ingredient here, but you have to use it – and enjoy the Holidays!

An Employer's Right to Hire and Fire

2008-11-17T08:08:00.000-08:00

Is the Federal government infringing on an employer’s rights to hire or fire; can I hire anyone I want; do I have to keep a drug user employed and pay for treatment?

These are still some of the questions that periodically are asked by employers, many of whom have had drug and alcohol programs in place for some time, but have not had to deal with positive test results or with workers seeking help with their addiction.

To add to this confusion, on September 8, 2008, the U.S. Department of Labor, Mine Safety and Health Administration (MSHA) published in the Federal Register a proposed drug and alcohol rule for the mining industry. Although this rule stated that drug and alcohol testing procedures would generally follow those of the DOT rule (49 CFR Part 40), there were some differences in a number of policy requirements. One of these was that when a miner had a violation (positive test, refusal, etc.) and subsequently successfully completed treatment, the employer was obligated to return the individual to employment. In other words, the employer would have to return the miner to safety-sensitive work after the first violation of the rule.

This proposal, and please note – this is just a proposal at this point, triggered many comments from mine operators expressing concerns that this was an infringement on their company authority related to personnel action and hire/fire authority. Many mining operations also employ drivers who come under the authority of the Federal Motor Carrier Safety Administration (FMCSA) and some are wondering if this proposal will somehow overflow into FMCSA regulations.

At this point, the only concrete regulatory requirement addressing drug and alcohol violations and employer personnel actions – other than for Federal agencies – is the DOT Part 40 rule. Most of what is required from the employer is spelled out in Subpart B-Employer Responsibilities. Granted, the rule is complex and sometimes hard to understand – even though it was one of the first Federal rules written in “plain English”. There are a lot of requirements that an employer has to meet and these often seem to be stringent and confining on what actions employers can perform.

Believe it or not, nowhere in the rule is there any requirement that has a direct impact on the employer’s decision to hire, promote, fire, etc. Lets look at the whole employment process – within the transportation industry - and see what is really being asked of the employer. A critical issue to remember is that all of these regulatory requirements affect only those individuals who are applying for or are working in safety-sensitive (SS) positions.

In the pre-employment process, DOT requires a negative drug test for applicants who will be performing SS functions. Nowhere in the rule text does it say you may not hire the individual; it states that you may not use that individual in a SS position until there is a negative pre-employment test result.. An applicant is required to sign a release form to permit you to obtain drug and alcohol testing information from previous employers. If the applicant refuses to sign you can still hire that individual, but you cannot use that person in a SS position.

When an employee who is working for you violates the rules, you are required to remove the individual from SS duties. Again, there is no rule requirement that this individual be terminated from your employment. Another frequently asked question is related to employer responsibility to provide treatment following a violation. Section 40.289 is clear: “As an employer, you are not required to provide a SAP evaluation or any subsequent recommended education or treatment for an employee who has violated a DOT drug and alcohol regulation.”

Generally, there is a second part to that question and that is who pays for SAP evaluations. Again, Part 40 is clear on that; Section 40.289 continues with: “Payment for SAP evaluations and services is left for employers and employees to decide and may be governed by existing management-labor agreements and health care benefits.”

And finally, the question of returning someone who violated the rule back to employment. DOT does not require an employer to return that individual to employment or to SS duties. It is entirely an employer’s option based on company policy. In fact, if an employee does not show progress in treatment, DOT provides the employer an open-ended option in Section 40.301: “As the employer, following a SAP report that the employee has not demonstrated successful compliance, you may take personnel action consistent with your policy and/or labor-management agreements.”

Bottom Line: All personnel actions (hire, fire, suspension, promotion, etc.) are at the employer’s option. DOT does not mandate any of these functions. True, they have established criteria for SS positions in the transportation industry based on safety and protection of the traveling public. These criteria only control who and when an individual can perform these SS functions – all personnel actions are in your hands.

Post-Accident Particulars

2008-10-14T08:56:00.000-07:00

Post Accident Particulars:

Post-Accident Alcohol Testing and Use of Law Enforcement Test Results

Post-accident drug and alcohol testing seems to always be a complicated process for many employers – especially the issue surrounding use of results from tests administered by law enforcement personnel. Since this issue is primarily one facing the highway industry, all the following comments are geared to that industry.

It is always dangerous to assume that everyone knows the basics. So, lets take a quick look to make sure that all readers are starting with the same basic concepts. First, the only time a drug or alcohol test would be administered by law enforcement personnel would usually be following an accident. There is no mechanism, for example, for an employer who maybe can’t conduct a test (we are talking about an alcohol test here) to ask a law enforcement person to conduct such a test – regardless if it is a random, reasonable suspicion, or post-accident test.

In reality, the only time a law enforcement test will be conducted, will be after an accident, and that would usually be an alcohol test – most law enforcement agencies do not conduct drug testing on a regular basis. Now for a surprise twist – some of these alcohol tests may involve blood testing – which as you know DOT does not permit. All of a sudden, things are getting complicated.

Back to basics. Post-accident testing. When do you as an employer conduct drug and alcohol testing under DOT requirements versus under your own company policy? Specific rule text is spelled out in the Federal Motor Carrier Safety Administration (FMCSA) rule, 49 CFR Part 382, Section 303. Here is the simple answer; print it and keep it by your phone:

That seems pretty simple, but a lot of employers have trouble with this decision table. Some employers basically conduct a DOT test after every accident and then hope to sort it out afterwards. Not a good idea! You can face sanctions for this practice during an audit. And don’t depend on your Third Party Administrator (TPA) to make the decision. You, the employer, will probably be the first to know that one of your drivers had an accident. You need to make the decision on what type of test is to be done and notify either the TPA or your driver. You can’t get out of that responsibility.

Back to the testing. After an accident that meets the FMCSA criteria, you must perform the tests as soon as possible: Drug tests must be performed within 32 hours following the accident, and alcohol tests must be performed within 8 hours. Now, does that mean you have 8 hours to make a decision about a test and/or to get your driver to where a test can be performed? No – the rule says as soon as possible. If you can’t administer the alcohol test within 2 hours following the accident, you must prepare and maintain a written record stating the reasons the test was not promptly administered. And, if you don’t administer the alcohol test within 8 hours, you must stop attempts to administer the test and again prepare and maintain a record of why you could not conduct the test.

What are some of the reasons that may be acceptable to an inspector as to why you could not get a test done quickly? One might be that the driver was injured and was receiving medical attention first. Stating that there was no one available to conduct an alcohol test will not suffice; as an employer, you are required to have procedures in place to meet these kinds of situations.

In the case where a Federal, State, or local law enforcement official decides to conduct an alcohol test following an accident, and the results are made available to the employer, these results may meet the FMCSA requirements, provided the tests conform to applicable Federal, State, or local requirements. It is important to note that in this case, if the alcohol test is done on a blood specimen, DOT will accept the results. The key here is to ensure that you as the employer will be able to obtain those results. If the law enforcement personnel do not conduct a drug test, you may still have to do that if the accident met the FMCSA criteria.

Bottom line: As an employer, you need to ensure that you have procedures in place to conduct post-accident testing no matter where the accident happens. Also, if you operate within a certain geographic area only, you may be able to determine which jurisdictions require post-accident alcohol testing and if these tests are available to employers. If a particular law enforcement agency will not release these results, it is better to know ahead of time and make preparations to have the tests conducted under your own or your TPA’s control. And finally, please refer to the above chart – it will save you a lot of grief and worry, and will hopefully keep you out of trouble.

Battle lines are being drawn; labor challenges DOT’s new rule related to direct observation for urine specimen collections.

2008-09-16T06:51:00.000-07:00

You may remember reading a couple of months ago about DOT publishing new rules for direct observation collection of urine specimens. Now, DOT is postponing implementation of some parts of that rule until November 1, 2008.

What exactly is going on?

There is definitely some confusion going on, and as an employer, you are not alone in trying to understand the issues that seem to be in question.

Let us look at what actually happened:

On June 25, 2008 DOT published a final rule addressing a number of directives related to specimen validity testing and a modification in procedures for collecting urine specimens under direct observation (DO).

Because of the wide availability of prosthetic devices for providing clean urine, and findings by the Government Accounting Office that collectors are frequently less than diligent in preventing cheating during urine specimen collections, DOT directed that all DO collections also include the employee raising his/her shirt up to the navel and lowering pants/skirt to mid thigh. This was to ensure that no prosthetic devise was concealed on their person. This procedure was explained in the DOT notice of proposed rulemaking (NPRM) published on October 31, 2005.

In the June 25 final rule, DOT also mandated that all return-to-duty and follow-up tests (collections) be conducted under DO. Previously, DO collections for these type of tests were an employer option. Several labor organizations petitioned DOT to suspend this requirement since it had not been discussed in the October 31, 2005 NPRM. On August 26, 2008 DOT published a notice in the Federal Register changing the implementation date (for 40.67(b) – the section addressing mandatory DO collections for return-to-duty and follow-up) from August 25 to November 1, 2008 and provided a 30-day period for interested parties to provide comments.

What does all of this mean to you?

Simply put, all DO collections will require the new procedure to raise the shirt and lower pants/skirt. As an employer, you need to make sure that your collection site(s) or Third Party Administrator is aware of this requirement and will abide by it. Second issue – requirement for DO collections for return-to-duty and follow-up tests will remain employer option – until November 1 – when DOT will make a final decision.

That sounds pretty simple and employers may question what all the fuss is about? To a large degree, it’s all a matter of misinterpretation and misunderstanding. There are about 50 comments in the DOT docket from individuals and associations providing their views on this issue. Some commenters seem to think that DO collections are a new requirement and question the procedure’s invasiveness as well as the difficulty of meeting the requirement to have the same gender observer. This is puzzling, since the DO requirement has been in existence since August 2000. One may suspect that these individuals or companies have not been conducting DO collections in the past and are now surprised and think it is a new requirement.

Individual Comments
Some comments are from individual employees who are subject to these rules. Understandably, many of them are responding to the new procedure of lifting the shirt and lowering pants/skirt as overreaching and invasive to the extreme. Many labor organizations in addition to objecting to the shirt and pants/skirt procedure are lumping together the original DO requirement and the new directive making DO mandatory for return-to-duty and follow-up testing. Their original concern was that there was no comment period for requiring DO collections for return-to-duty and follow-up. DOT is now providing a 30-day period for comments on this subject.

SAP Comments
Quite a number of comments are from substance abuse professionals (SAP) and other individuals who provide treatment to drug and alcohol abusers. Most of them favor DO collections for return-to-duty and follow-up collections on the basis that these individuals have already provided evidence that they are users and/or dependent on drugs. In the SAP’s experiences, drug addicts often revert back to their destructive behavior and will use any means possible to avoid detection of their continued drug use. Drug testing is one way to not only detect use, but to also help and deter these individuals from reverting to their drug use behavior. Additionally, some SAPs indicated that many employers are reluctant to direct DO collections for return-to-duty and follow-up tests, thereby providing a potential opportunity for an employee who already is at risk to try and cheat on a drug test. Many of the comments state that if the concern is for safety of the traveling public, then DO collections for return-to-duty and follow-up are more than appropriate.

Collection Facility Comments
A number of collection sites made comments that they would not be able to meet these new DO requirements because their entire staff is female and most of the employees requiring drug testing are male. Here again, if this is what an employer hears from a collection site, the employer needs to ask what the site is doing now to meet the current DO requirement. There were some comments suggesting that if employers/ supervisors identified an individual for testing (return-to-duty and follow-up) and then accompanied that individual to the collection site, there would be no opportunity for the employee to obtain adulterants or prosthetic devices prior to the test. That may be true, but most employers do not follow these procedures, plus a return-to-duty test is usually scheduled to a certain degree.

BOTTOM LINE: Direct observation testing, to include raising shirt and lowering pants/skirt is here to stay. An employer and/or collection site must conduct these under certain criteria spelled out in the regulations. Mandatory DO collections for return-to-duty and follow-up testing is suspended until November 1, 2008 (Note: employers currently have the option to require this type of collection.) As an employer, you have the opportunity to make comments to the DOT docket on this issue (htt;://www.regulations.gov The Docket number is OST-2003-15245). Your comments are always important.

Stay tuned to this publication; as soon as DOT makes a determination related to mandating DO collections for return-to-duty and follow-up, we will publish the information in this Newsletter.

What are an employer’s responsibilities...

2008-08-20T06:31:00.000-07:00

...when an applicant admits to testing positive on or to refusing to take a pre-employment test within the past two years?

The Department of Transportation (DOT) drug and alcohol testing rule (49 CF Part 40) specifically spells out in Section 40.25 what an employer has to do to check an applicant’s prior alcohol and drug testing history with previous employers for whom the individual performed safety-sensitive functions during the previous two years.

Some employers do not realize that paragraph (j) of that section explicitly directs the employer to “ask the employee (i.e., applicant) whether he or she has tested positive, or refused to test, on any pre-employment drug or alcohol test administered by an employer to which the employee (applicant) applied for, but did not obtain, safety-sensitive transportation work covered by DOT agency drug and alcohol testing rules during the past two years.” What this means is that an employer or its service agent (Third Party Administrator (TPA)) must ask this question as part of the hiring process for DOT safety-sensitive positions and this needs to be documented in a manner that can satisfy an auditor.

Getting back to the original question, what is the employer to do when an applicant admits to testing positive or refusing to take a pre-employment test? Obviously, the individual did not get hired and as an employer, you need to now determine if the applicant followed all the procedures spelled out in the Federal regulations and complied with the return-to-duty requirements – that is provided you still want to hire that individual. This means that you must obtain documentation that the applicant went to a Substance Abuse Professional (SAP) for an initial evaluation, followed all the recommendations of the SAP for education and/or treatment, obtained a follow-up evaluation from the SAP, and complied with the SAP’s recommended follow-up tests.

If an applicant admits to testing positive or refusing to test on a previous pre-employment test:
This procedure looks formidable so let’s break it down to a more practical process. Probably in the majority of cases, if an applicant admits to testing positive or refusing to test on a previous pre-employment test, he/she was not hired and probably did not go to see a SAP. In that case, you may not use that individual in a safety-sensitive position until he/she goes for the initial SAP evaluation, follows the recommended program, and has a follow-up evaluation that indicates the individual has progressed to the extent that he/she can return to safety-sensitive duty. As an employer, if you want to hire this individual you are not required to pay for the SAP evaluations and education/treatment, although you may do so if it is consistent with your policy.

Verifying a that an applicant saw a SAP
Now lets suppose the applicant tells you that he/she did see a SAP and followed a program and is now ready to return to safety-sensitive duties. If you want to hire this individual you must obtain documentation of this return-to-duty process. The applicant may have documents from the SAP indicating the progression of evaluation and treatment and recommended follow-up. However, since documents can be compromised, it is always a good idea to contact the SAP and verify this information. In some cases, you may want to receive copies of these documents directly from the SAP, especially if the applicant does not have them, but is willing to have the SAP provide them to you.

If you want to hire the Applicant
We are now at the final step. As an employer, you want to hire the applicant and you have all the relevant SAP documents. In all cases, the SAP must recommend a minimum of six drug or alcohol or both tests within 12 months following return-to-duty. In most likelihood these have not been done since the applicant has not been in a safety-sensitive position. These will have to be done by you as the new employer and that is in addition to enrolling the individual into your random testing program. One final step; there is a requirement that before this individual can go back to safety-sensitive functions, he/she must have a “return-to-duty” drug and alcohol test which is negative. In most cases, DOT agency regulators have permitted this test to serve two functions and be combined into one test, i.e., as a pre-employment test and as a return-to-duty test – just make sure you document this in some manner.

Important Issues for Employers:

The Federal Motor Carrier Safety Administration’s (FMCSA) rule (49 CFR Part 391) requires information from previous employers be obtained for three prior years. So, although Part 40 requests two years of alcohol and drug history from prior employers, in reality for employers who come under the authority of FMCSA this translates to three years of prior information.

As an employer if you have someone who refuses or has a positive drug or alcohol pre-employment test, you are obligated to provide that individual with several names, addresses, and telephone numbers of SAPs, even if you do not hire that individual. This information may be provided by you or your MRO or TPA and neither you nor your service agents may charge the applicant for this information.

If the applicant tells you that he/she refused or tested positive on a pre-employment test, but no documentation exists that the applicant successfully completed the return-to-duty process, a current return-to-duty process must occur before the applicant can again perform safety-sensitive functions.

If the applicant admits to a violation of the drug and alcohol testing rules, has completed all the return-to-duty procedures and is now in the follow-up stage and employed in a safety-sensitive position by another employer, and you hire this individual, you will be responsible to “finish” the follow-up testing. What this means is that the SAP may have directed that the applicant undergo 10 follow-up drug tests within the first year after returning to safety-sensitive duty and the applicant’s current employer has completed six of these tests. If you hire this individual you will have to complete the other four follow-up tests that were required as part of the SAP’s follow-up plan.

Impact on Employers of New DOT Rule Regarding Specimen Validity Testing

2008-07-14T08:47:00.000-07:00

What exactly is SVT and why is it so important for DOT to make it mandatory? SVT is a series of procedures that drug testing laboratories are directed by the Department of Health and Human Services (DHHS) to conduct on all urine specimens to determine if the specimen has been adulterated or substituted and to determine if it is truly a specimen that could be produced naturally by an individual. Most laboratories were conducting some variation of SVT prior to this, but the new rule will now make it mandatory that every drug testing laboratory follow the DHHS Mandatory Guidelines for performing SVT on urine specimens collected under DOT requirements.

Over the years, there has also been an increase in products designed to adulterate specimens and their use has increased as individuals attempt to mask their use of illegal drugs. There are also various prosthetic devices on the market that store clean urine at body temperature and permit individuals to provide a urine specimen under direct observation without detection that the specimen is not actually emerging from the individual’s body.

Given these factors, DOT determined that provision of less privacy during directly observed collections would guard against individuals using these prosthetic devices to circumvent the collection process. To that extent, DOT directed that during a directly observed collection, the individual will be asked to raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist and to lower clothing and underpants to show that there are no prosthetic devices hidden under the clothing. It is also good to remember that a directly observed collection only happens when there is reason to suspect that the individual may have tampered with the specimen or because the individual had a previous non-negative result.

You may be asking yourself what does this have to do with an employer – or even with the Designated Employer Representative (DER)? You have to remember that the DOT program is one of deterrence rather then detection. Individuals need to be aware of the fact that under the new rule, all directly observed collections will require the individual to show the observer/collector that there are no prosthetic devices to interfere with the collection. Additionally, the requirement to conduct a directly observed collection is now mandatory for all return-to-duty and follow-up tests (prior to the new rule, it was optional based on employer’s policies). Knowledge that this requirement exists may prevent some individuals from using illegal drugs since one avenue of “cheating” on the test will no longer be available.

This means that as an employer or DER, you need to ensure that your safety-sensitive employees are aware of these changes. You do not want to have an individual go for a collection and be told that they have to partially disrobe. Not knowing that this is now a Federal requirement, some individuals may refuse to partially disrobe for the collector, which would be considered a refusal to test. Preparation and assurance that this is a legitimate requirement will go a long way to temper the unease that some individuals may have in regards to this new collection procedure.

New Refusal to Test Classification
By the way, when discovered, use of a prosthetic device will now be considered a refusal to test; so will refusal to wash hands and admission to the MRO of adulteration or substitution of the specimen.

The rule also modified some of the procedures and reports related to invalid results. These are defined as a “result reported by a laboratory for a urine specimen that contains an unidentified adulterant, contains an unidentified interfering substance, has an abnormal physical characteristic, or has an endogenous substance at an abnormal concentration that prevents the laboratory from completing testing or obtaining a valid drug test result.”

Here is something to remember:

If the first test is an invalid result and the second collection is also invalid for the same reason, the test will be cancelled. If there is a requirement for a negative, i.e., pre-employment or return-to-duty, the rule now requires a medical evaluation to determine if there is any evidence of illegal drug use.

If the second test is an invalid result for a different reason from the first test, the MRO will direct a third test (without discussing this with the individual). And yes, you as the employer will have to pay for all three tests. The rules are written to provide a balance between unreasonable requirements versus concern for public safety, and this is the best that DOT could do at the present time.

There is another change that the employer needs to be aware of: if the individual admits to the MRO to drug use during a verification interview related to an invalid result, the MRO will notify the DER, who then must take action under the Agency rules; in the highway industry, this is related to actual knowledge.

Another change that you and your DER need to be aware of is that if there are multiple collections for the same event (e.g., first specimen’s temperature is out of range, requiring a second collection under direct observation) and the first specimen is reported at negative, the MRO is now directed to “hold” this report until the results of the second specimen are reported by the laboratory. This was done to prevent employers from placing individuals into safety-sensitive duties based on the first negative and then subsequently receiving a positive result for the second directly observed collection. Of course, if the first specimen in non-negative (positive) the MRO will report this to the employer immediately.

An added item to remember, both for your policy updates and to inform your employees, is that there is no authorization for testing of a split specimen for a sample that has been reported as invalid. That’s pretty simple and easy to interpret.

And finally, DOT did not change the employer’s option related to negative results that are also dilute. As an employer you still have the option of requiring a re-collection (but not under direct observation) and the test result of record would be the result of the second test.

All of this sounds a lot more complicated than it is; however, the bottom line is – just follow the rules!

Note from previous Federal Corner: Last month the discussion centered on requirements directing employers, MROs, and Breath Alcohol Technicians to report refusals and positive results to several State licensing authorities.

As of May 2008, South Carolina initiated legislation to require similar reporting. As a recap, the following States now require some form of reporting: Arkansas, California, Oregon, North Carolina, South Carolina, New Mexico, Texas, and Washington.

State Requirements for Employers to Report Positive Drug & Alcohol Results

2008-06-16T06:26:00.000-07:00

Based on a number of recent inquiries, it seems that many employers are not aware of requirements to notify or report to certain State regulatory licensing authorities when a driver tests positive for drugs or alcohol or refuses to test.

Surprised? This requirement is not widely publicized partially because only seven States have this requirement: Arkansas, California, Oregon, North Carolina, New Mexico, Washington, and Texas. To add to the confusion, requirements vary from State to State. For example, some require reporting of positive results for drugs and alcohol while others require reports only for drugs – no refusals or alcohol results; some only enter this information into a data base and others actually disqualify the driver. Confusing – of course.

Lets simplify the process. First of all, these States have initiated legislature to try and close the loop where a driver has a positive drug or alcohol test result, but maintains his/her commercial drivers license (CDL) and continues to drive. All of the States attempted to mirror as closely as possible the DOT regulations. These are directed at the highway industry and drivers with CDLs who come under the authority of the DOT drug and alcohol testing requirements.

Keep in mind that each State has regulatory authority only over those drivers to whom the state issued a CDL. For example, Texas requires reporting of positive results and refusals for drugs and alcohol, but this affects only those drivers who have a CDL issued by the State of Texas. However, you have to remember that the driver does not have to be working in Texas to come under this requirement. The driver could be in Maryland where the employer is located, but if he/she has a drug positive result, the employer and the MRO (or Breath Alcohol Technician (BAT) – if the result is for alcohol) must report this to the Texas Department of Public Safety, Motor Carrier Bureau – and, it does not matter that the employer’s MRO is in New York.

On a practical level, this means that as an employer, you have to know which of your drivers have CDLs issued by one of the seven States listed above. Visit each of the States’ web sites and obtain the proper forms and instructions for filling them out. Although the forms will indicate what information is requested by each State, it would help if you identified these differences for yourself and ensure that your MRO is not only aware of these requirements and has copies of the forms, but also knows what to report to each State. Also, remember to send some documentation to the MRO as to which drivers are affected by this requirement; the same should be done for those States that require reporting of alcohol results by BATs. Generally, neither the MRO nor the BAT will know or even ask a driver what State issued the CDL, so it is up to you, the employer to make sure your MRO and BAT have this information.

Finally, Arkansas, Oregon, and Texas make their data base available to prospective employers with the applicant’s consent. If your business is located in one of these States, it probably is a good idea to query this database as part of your pre-employment background check of the applicant’s drug and alcohol history.

Co-incidentally, the DOT published an Interim Final Rule (IFR) on Friday, June 13, 2008 in the Federal Register [Vol. 73, No. 115, page 33735] addressing this very issue. This IFR authorizes employers and third party administrators (TPA) for owner-operators to comply with State laws and provide to the State CDL licensing authorities information about all violations of DOT drug and alcohol testing rules. And, more importantly, this release does not require the driver’s consent.

The DOT published this rule to avoid any potential conflict between the stringent privacy requirements under 49 CFR Part 40 and State laws requiring release of this information. The DOT felt that State action to suspend or revoke the CDLs of these drivers until they demonstrate that they have successfully complied with the Substance Abuse Professional (SAP) return-to-duty process, was justified because of safety benefits to the traveling public.

DOT Publishes Guidance to Employers

2008-05-16T07:17:00.000-07:00

The Department of Transportation (DOT) just published a manual titled “What Employers Need to Know About DOT Drug and Alcohol Testing”. This 60-page document provides guidance and best practices to employers on how to implement the regulatory requirements for drug and alcohol testing programs. A copy of the manual can be downloaded from the DOT web site at: http://www.dot.gov/ost/dapc/testingpubs/what_employers_need_to_know.pdf

Employers, even those who have their programs operated by Third Party Administrators (TPA), should obtain a copy and read it! The DOT made a tremendous effort to present the rather complex drug and alcohol testing rules in a readable and easy to understand format. Although this is not a beach read, it certainly will not put you to sleep like reading the actual Federal rules.

Why does an employer need to read this manual? First, it will really provide you with a simple and concise overview of what DOT requires from employers in the drug and alcohol-testing arena. Secondly, if you are using TPAs for any portion of your program (e.g., collections and/or medical review officer functions) or even if you have turned over the whole implementation of the program to a TPA, the information gleaned from this manual will help you to determine if your TPA is, in fact, providing the required services and at the appropriate level. For example, a collection site may tell you that their staff is trained in the collection procedures, but do you know how to verify if this is true? Remember, if your TPA is in non-compliance, the DOT will hold you, the employer, responsible!

Now that your interest has been peaked, let’s take a quick look at what these guidelines state. The manual provides an overview of the regulatory requirements, issues related to program implementation, and how to identify employees who are subject to testing. Most of this is common sense, but a review will trigger issues that many employers have forgotten.

Section III is important in that it addresses program policies and specifically addresses issues related to the relationship between DOT policies/programs and those of the employer.

Section IV is a must read for employers. It talks about selecting service agents (TPAs) and the roles that TPAs play in support of the program. A review of this section will certainly provide the employer with information that will be useful in not only selecting a TPA, but how to evaluate their performance. The issue of contracts is addressed and worth paying attention to the suggestions.

Section VI spells out drug and alcohol testing requirements and is a very important section. It clearly delineates the differences between the various transportation modes and also describes the differences in post-accident testing requirements among the modes. This is especially critical to understand for those employers who come under the regulatory authority of more than one operating administration (e.g., Federal Motor Carrier Safety Administration and the Federal Transit Administration). The difference in post-accident testing is one area that employers must understand; non-compliance, even if due to ignorance, does not protect the employer from DOT sanctions during audits. For example, did you know that for certain accidents, the Federal Railroad Administration requires the collection of not only urine specimens, but also blood specimens and that the U.S. Coast Guard permits the collection of blood specimens for certain Serious Marine Incidents? Yes, there are significant differences and as an employer who comes under the authority of more than one operating administration, you must know these differences.

This section also addresses submission of “blind specimens” to laboratories. This is a little understood requirement and the manual clearly spells out who has to comply with this requirement.

Section VII clearly covers the various scenarios related to what constitutes a refusal to test. This is probably one of the most important items that an employer should review. It will save you countless hours of sleepless nights and keep your legal fees more reasonable. Read this section carefully and determine if your company policies address the consequences related to each of the reasons for refusal.

Section VIII addresses the various requirements for record keeping. Each operating administration has slightly different requirements, so it is wise to review these to ensure that you and/or your TPA are in synch with the regulatory requirements. And finally, Section IX provides a short overview of what an employer should expect from a DOT audit. Understanding these requirements will help employers prepare for an audit and should lower your anxiety level – provided you have all your records in order.

DOT also provides seven appendices ranging from samples of forms that they require to post-accident testing criteria. The DOT is especially concerned with collection site security and appropriate collection procedures. They provide an appendix with 10 items that are critical in the collection process. As an employer, these are items that you should periodically review or have your TPA review to ensure that collection sites are following proper procedures. The collection process is still seen as the weakest link in the drug and alcohol testing process and needs everyone’s attention.

This manual contains very useful information and as an employer, you need to make sure your TPA has a copy of this manual, has reviewed it, and where needed, upgraded their services to match the DOT requirements. Of course, the manual is not a substitute for the actual Federal rule, but rather a readable summary of the various testing requirements. The Federal rule itself should be used in determining legal issues related to implementation or interpretation of drug and alcohol testing procedures.

When is Random Testing Really Random?

2008-04-07T06:13:00.000-07:00

Some employers will say they don’t really worry about random selection or testing because they contracted this process out to a third party administrator (TPA). So, should I worry?

Yes, as an employer you do need to know what the Department of Transportation (DOT), and especially the Federal Motor Carrier Safety Administration (FMCSA) have to say about random testing.

Here are some statements by naïve employers:

We pick all of our random selections for the whole year in January and then use that list for random testing throughout the year.
We conduct two (2) selections a year.
We select on a quarterly basis; if someone is not available to be tested in the quarter they are selected, we make sure to get them tested by the end of the year.If an individual is not available (not on site, or performing a task that prevents that individual from coming to the collection site for testing on the day a collector arrives), we pick an alternate person.

Lets start from the beginning and ask the question – What is the purpose of random testing?

DOT’s intent in establishing a random drug and alcohol testing program was to deter individuals in safety-sensitive positions from using illegal drugs and misusing alcohol. The bottom line was that if an individual did not know when and where he/she could be tested for drugs or alcohol, this would encourage them not to use these substances, prevent potential job loss, and improve public safety.

The corner stones of this program are:

Each person in the random testing pool must have an equal chance of being selected.
Selection is done with replacement (if a person is selected and tested, his/her name goes back into the pool).
Testing must be spread evenly through out the year.
Times when testing is conducted should not be predictable.Selection time may not be longer than 3 months, i.e., one quarter (FMCSA).

This seems pretty straightforward, but implementation sometimes gets pretty hairy. Here are some best practices:

Do Not select a year ahead of time. If you make your selection in January, then anyone hired after that during the rest of the year would not be subject to testing. Remember, anyone performing safety-sensitive functions must have an equal chance to be picked for a random test. Note: Even with quarterly selections there will be situations where an individual is hired right after the quarterly selection and even if his/her name is placed into the random pool, that individual will not be tested that quarter. DOT is aware of this wrinkle in the process, but considers it a reasonable compromise. Just make sure that all new safety-sensitive employees are immediately placed in the random testing pool and, of course, remove those who are no longer performing these functions or have left your employment. Leaving these individuals in the pool “dilutes” it and may subject you to monetary fines during an audit.
If someone is not tested during the selection cycle, you cannot test that person during the next selection period. If the individual was not tested, then his/her name goes back into the pool for the next selection time frame.
Do test the individual anytime during the selection time frame. This means that as an employer, you know when that individual will be available for a test. You know the work schedule, when the individual will be on leave, etc. It is up to you to ensure that this individual is tested during the selection window. And NO, you can’t just substitute someone else because they are more readily available to be tested. Reminder: DOT will want to see written documentation why the selected individual was not tested. Did not get around to it, is not going to be a reason they will accept.
If you know that an individual will be on extended sick leave you can skip selecting this individual if you know he/she will be gone throughout the entire testing period and select another alternate individual from the pool using a scientifically approved method. Or, you can set aside this individual’s name until that person comes back from extended leave, and you can conduct the test at that time, provide the individual returns before the next selection.
You cannot require an individual to report for a test in the middle of vacation time, while sick, or on other types of excused leave. You can call the individual in for work and then conduct a test.

Lets look at a few other issues that come up frequently.

Notification: When and how do you do this? Basically, random testing is “short notice” type of testing. You should not give the selected individual excessive notification time that he/she must go for a test. For example, you should not call the individual at the beginning of his/her shift and indicate that he/she is to report to a clinic for a drug test at the end of the shift. This only provides the individual with time to drink copious amounts of water to dilute the specimen, obtain products to adulterate the specimen, or obtain substituted urine specimens.

DOT directs employers to ensure that once a selected individual is notified, they must proceed immediately to the collection site. “Immediately,” in this context, means that all the individual’s actions, after notification, lead to an immediate specimen collection. So, as an employer, if you know that an individual will not be able to leave the work site immediately, don’t make the notification until such time when the individual can secure his/her worksite and is able to go to the collection site. The definition of “immediately” should be clearly spelled out in the employer’s drug and alcohol testing policy. For example, if your collection site is within five minutes of your work site, you should clearly indicate in your policy that when individuals leaves to go to the collection site, they must get there within 10 or 15 minutes, other wise it will be considered a refusal. In a previous article, it was pointed out that only rare and documented incidents should be accepted by the employer as legitimate excuses for not showing up at the collection site within a reasonable time.

Finally, what about alcohol testing? There are some different requirements for random alcohol testing. An individual is subject to random alcohol testing only while performing safety-sensitive functions, just before performing safety-sensitive functions, or just after performing these functions. Performing a safety-sensitive function includes being immediately available to perform such functions. This means that although an individual may be performing clerical duties, if he/she is on call (i.e., ready to perform) they may be subject to a random alcohol test, even if they are not at that time performing safety-sensitive functions. Once again, make sure you have this clearly explained in your policy.

Employers need to be aware of the fact that testing for alcohol should not be confined only to testing before the individual starts a safety-sensitive function. Some tests should be scheduled during the shift and others when the individual finishes the safety-sensitive duty. Randomness and unpredictability are the corner stone of a good random alcohol testing program.

Of course, it goes without saying that only individuals in safety-sensitive positions should be in the random pool. You cannot mix DOT and non-DOT personnel in the same testing pool. You can have one random testing pool for both drugs and alcohol provided you have documentation of how the process works and that the method is scientifically valid and impartial regarding who gets selected. You can have two separate pools (one for drugs and one for alcohol testing) or if you have one pool, you can first select individuals for drug testing, and then conduct another selection for alcohol testing. You could also select the first 20 percent of the individuals selected for drug testing to also be subject to alcohol testing. Bottom line is – documentation!

Does possession of a Commercial Drivers License (CDL) automatically place the holder into the DOT drug and alcohol testing program?

2008-03-14T05:29:00.000-07:00

A number of employers have asked a variation of this question and we will try to answer some of their concerns. First, the mere possession of a CDL does not automatically require the individual to be included in a DOT drug/alcohol testing program.

A simple question to answer: does the individual have a CDL and does that individual drive a Commercial Motor Vehicle (CMV)? If the answer is "yes" to both of these, then you must place that individual into a DOT testing program.

However, here are some of the areas that cause confusion. As an employer, you must know the DOT definition of a CMV. For purposes of drug/alcohol testing, this is a vehicle that has a gross weight (or combination weight) rating of 26,001 or more pounds; or is designed to transport 16 or more passengers, including the driver; or is of any size and is used in transporting hazardous materials requiring a placard under the Hazardous Materials Regulations (49 CFR par 172, subpart F).

So, where is the confusion coming from? Here are some of the questions raised by employers.

Situation #1. An employee has been working for me for several years and just recently obtained a CDL. Do I have to test this employee?

Answer: Only if this individual will now be driving a CMV. Having a CDL does not require drug testing unless that person also drives a vehicle as defined above.

Situation #2. This same individual has been in my company non-DOT drug testing program for a number of years. Do I still have to conduct a pre-employment drug test?

Answer: Yes. You must conduct a DOT pre-employment test before placing that individual into a DOT defined safety-sensitive position (i.e., driving); company tests may not be used in place of a DOT test.

Situation #3. I have some individuals who hold a CDL and volunteer to drive passenger vehicles (more than 16 passengers) for a non-profit organization. Do they have to be tested under DOT requirements?

Answer: Yes. The definition of “driver” in 382.107 and the definition of “employee” in 383.5 both include “any” operator or person who operates a CMV; there are no exceptions for volunteer drivers.

Situation #4. I have several supervisors with CDLs who are on call to drive if one of the regular drivers is not available. This happens rarely; do I still have to have these supervisors in a random testing pool?

Answer: Yes. These individuals must be in a random testing pool at all times, just like a full-time driver. A drug test must be administered each time the individual’s name is selected from the testing pool – even if they are not scheduled to drive. DOT considers these individuals ready to perform a safety-sensitive function at any given time, and therefore, they are subject to drug testing.

Situation #5. Are these individuals also subject to alcohol testing?

Answer: Alcohol testing may only be conducted just before, during, or just after the performance of safety-sensitive functions. If the individual’s name is selected, the employer must wait until the next time the employee is performing a safety-sensitive function, just before, or just after performing a safety-sensitive function, to administer an alcohol test. If a random selection period expires before the individual performs a safety-sensitive function, no alcohol test should be conducted; the individual’s name is returned to the random testing pool, and the number of individuals subsequently selected for alcohol testing should be adjusted accordingly to achieve the required testing rate.

Situation #6. If an individual (driver) is off work due to a temporary lay-off, illness, injury or vacation, should I remove that individual’s name from the random testing pool?

Answer: No. The individual’s name should not be removed from the random testing pool so long as there is a reasonable expectation of the individual returning to work.

Situation #7. Can I combine my DOT regulated employees with non-DOT employees into one random testing pool?

Answer: No. DOT is very specific that DOT regulated employees are to be separated from any non-DOT employees in the implementation of the drug and alcohol testing program.

As you can see, there are a lot of scenarios that frequently confuse employers. As an employer, if you run into a situation where you are unsure if DOT testing is required, refer back to the Federal rules – they really do contain most of the answers. Otherwise, call your Third Party Administrator; they are knowledgeable about all of the various rule requirements and will guide you through this complex maze.

Why Can’t I Test for Other Drugs Besides the 5-Panel Authorized By DOT?

2008-02-13T08:36:00.000-08:00

The simple answer is because the Department of Transportation (DOT) only authorizes testing of the five drugs (amphetamines, cocaine, marijuana, opiates, and PCP) and prohibits regulated testing for anything else. Before you get discouraged with the heavy hand of bureaucracy, let’s examine the rationale for this Federal prohibition and see what other alternatives exist.

The Omnibus Transportation Employee Testing Act of 1991 directed the DOT to test transportation workers for the five most commonly abused illegal drugs and permitted the use of random testing. Since random testing is not based on any suspicion of drug use and can be construed as a search and seizure, the government was very careful to limit the number and type of drugs for which testing could be conducted under government auspices. Some prescription medications may produce the same laboratory result as use of an illegal drug, so DOT created the role of the medical review officer (MRO) to address this issue. They also built into the process the MRO capability to identify an individual to the employer if that individual’s use of a legally prescribed medication could interfere with the performance of safety-sensitive functions.

Back to the issue of testing for other drugs -- 49 CFR Part 40.13 specifically directs the employer “not to perform any tests on DOT urine or breath specimens other than those specifically authorized...For example, you may not test a DOT urine specimen for additional drugs, and a laboratory is prohibited from making a DOT urine specimen available for a DNA test or other types of specimen identity testing.”

A number of employers, because of employee or union pressures, want to permit an employee to have a DNA test performed to assure everyone that the test result (usually a positive report) truly belongs to that individual. Employers’ intentions are good, but are not supported by DOT. In fact, DOT addressed this subject extensively in the preamble to 49 CFR Part 40, published in the Federal Register on December 19, 2000.

In summary, their contention was that a proper chain of custody conclusively establishes the identity of the specimen and no additional tests are permitted or required to confirm this. In addition, the only thing that a DNA test would determine was if the original urine specimen and the one submitted for DNA testing was produced by the same individual. Since there is no way of knowing if the original sample was the individual’s or a substituted sample, or if the DNA specimen was the individual’s or from another individual, DOT will not accept the outcome of such a test. Nor will they accept another urine or blood test conducted by the individual’s own doctor.

The single exception to this prohibition is when a DOT drug test collection is conducted as part of a physical examination required by DOT agency regulations. It is permissible to conduct required medical tests related to this physical examination (e.g., for glucose) on any urine remaining in the collection container after the drug test urine specimen have been sealed into the specimen bottles.

So, what’s an employer to do if it wants to have a more stringent policy and test for other than the 5 DOT drugs?

You can still test for other drugs, but it has to be accomplished under your own company authority. You can test for prescription medications that may impact safety-sensitive performance (driving) or other non-safety related duties performed by any employee. However, you should make sure that this policy includes: who will be tested, type of drugs, cutoff levels, and consequences for use that are clearly spelled out in writing. This policy should be distributed to everyone who will be affected by the testing.

For the highway industry, 49 CFR Part 382.213(c) states “An employer may require a driver to inform the employer of any therapeutic drug use.” This gives you the authority to require drivers to disclose to you the use of certain medications that may affect performance. Here again, you should have this requirement and consequences of failure to comply clearly identified in your policy.

Some employers want to conduct alcohol testing on the urine specimen – usually in their company non-DOT program. There are problems in utilizing urine for alcohol testing, however discussion of these is beyond the scope of this article. Suffice it to say, that it is safer and less problematic to use evidential breath testing devices instead of urine.

On a final note, some employers want to also use alternative methodologies, e.g., hair, saliva, or sweat, as additional tests to ensure more accurate results. You have to understand the advantages and disadvantages of these different methodologies (we will address these in a future article) before implementing a them into your substance abuse program. However, at the present time, DOT does not permit the use of these alternative specimen-testing methodologies, with one exception – saliva screening for alcohol. It is also superfluous to permit an employee to use one of these methods to challenge a DOT test result. The DOT will not recognize the outcome of this type of test.

Bottom line – as an employer, you can conduct tests for other types of drugs, but only under your own authority. Although you can test both DOT and non-DOT regulated employees under your own policy, you should ensure that the distinction between the DOT and your company program is clear and known by your employees. Also, some states prohibit random drug testing (of non-DOT employees) and you should take this into consideration as you develop your policy.

Record Keeping – Is There an Easier Way?

2008-01-15T07:22:00.001-08:00

Records, documents, files, paper everywhere! Are you drowning in paper or is everything in an electronic database and you are keeping it forever?

The Department of Transportation (DOT) directs employers to maintain certain records related to the drug and alcohol testing program. Additional requirements are also placed on employers by the various modal administrations (Federal Motor Carrier Administration FMCSA, Federal Aviation Administration, etc.) and are specific to that particular transportation industry. The following comments are geared primarily to employers subject to FMCSA regulations.

As an employer, you have enough problems keeping track of all the governmental and bureaucratic requirements related to your core business. Tracking record requirements for your drug and alcohol program is probably your least favorite thing. However, during an audit if these records are not up to par, you may face some serious fines. Did you know that in some cases, using a driver whose record indicates a positive test result, but does not show that the driver went through a substance abuse professional (SAP) evaluation and treatment, may subject you to a $10,000 a day fine? That is definitely not good for business.

As an employer you have a few options:
· Keep all required records yourself at your place of business.
· Keep some of your records at your place of business and other records by your Third Party Administrator (TPA) with whom you have a contract for your drug and alcohol testing program.
· Let your TPA keep all your records for you.

Here are the regulatory requirements (FMCSA) that you have to follow:

Subpart D - Handling of Test Results, Records Retention, and Confidentiality
§ 382.401 Retention of records.
(a) General requirement. Each employer shall maintain records of its alcohol misuse and controlled substances use prevention programs as provided in this section. The records shall be maintained in a secure location with controlled access.

(b) Period of retention. Each employer shall maintain the records in accordance with the following schedule:
(1) Five years. The following records shall be maintained for a minimum of five years:
(i) Records of driver alcohol test results indicating an alcohol concentration of 0.02 or greater,
(ii) Records of driver verified positive controlled substances test results,
(iii) Documentation of refusals to take required alcohol and/or controlled substances tests,
(iv) Driver evaluation and referrals,
(v) Calibration documentation,
(vi) Records related to the administration of the alcohol and controlled substances testing programs, and
(vii) A copy of each annual calendar year summary required by §382.403.
(2) Two years. Records related to the alcohol and controlled substances collection process (except calibration of evidential breath testing devices).
(3) One year. Records of negative and canceled controlled substances test results and alcohol test results with a concentration of less than 0.02 shall be maintained for a minimum of one year.
(4) Indefinite period. Records related to the education and training of breath alcohol technicians, screening test technicians, supervisors, and drivers shall be maintained by the employer while the individual performs the functions which require the training and for two years after ceasing to perform those functions.

Note: Paragraph (c) of this rule text provides further descriptions of the types of records that are to be maintained. If you are maintaining your own records, you need to read this section. One other gem of wisdom from this paragraph: “If the record is required to be prepared, it must be maintained.”

This sounds like a lot of stuff to be worried about; and it is! If you opt for maintaining all files/documents yourself, then you have to follow the above requirements to the letter. If you want your TPA to maintain your files, there are a few items you need to consider.

First of all, you or the TPA must be able to produce copies of all the files needed for an audit within two business days. This can be a problem for many larger companies with multiple sites if the TPA stores the paper files exclusively in a central location. That is why maintaining electronic files with your TPA can be especially helpful because the files are always accessible to the satellite locations.

If you want to keep some files yourself and have the TPA keep other files, you need to determine who maintains which files. You don’t want to be in a situation where during an audit you think the TPA has certain files and they tell the inspector that they thought you kept the files. However, if you have the TPA image all of your documents to an electronic format, you can be assured that you always have access to any file.

So, it’s a no-brainer that if you keep your own files, you have to keep all of them for the required time spelled out in the regulations.

If a TPA maintains some of your files, you should still keep copies of the employer’s chain of custody form (CCF), the MRO results report, copies of the SAP reports, and certainly relevant documentation related to reasonable suspicion and post-accident testing. Auditors will generally want to see these “original” copies.

There are some advantages to a TPA maintaining your files. Usually, TPAs are more knowledgeable than employers as to what the regulations require and how to implement these requirements. They also have much more sophisticated computer systems on which to maintain all of these records.
For example, besides maintaining all files related to random selection and testing, data for the annual MIS report, results of all tests conducted, etc., a TPA can maintain all of your driver qualification files on their system, providing you with notifications of specific actions required to update the files, trigger various reports, arrange for medical examinations, and any other action required to maintain the files in accordance with the regulations. This can certainly remove some of the paper work burden facing an employer and streamline the whole process.

As an employer, you need to determine what other files you want the TPA to maintain for you. Do you want them to keep copies of reports explaining why a reasonable suspicion test was conducted; reports of why a post-accident alcohol or drug test was not performed within the specified time frame; alcohol and drug information from previous employers; supervisory training records, etc., or will you be more comfortable having these records at your place of business?

Once you bite the bullet and make some of these decisions, your life should get a lot easier and you will not have to panic when you hear the word audit!

Are There Holes In The DOT Drug Testing Program...

2007-11-29T11:04:00.000-08:00

Or Are You Getting Your Money's Worth?

The Subcommittee on Highways and Transit met on November 1, 2007 and reviewed testimony related to vulnerabilities in the Drug and Alcohol Testing programs administered by motor carriers. A number of incidents prompted the Subcommittee to direct the General Accountability Office (GAO) to conduct an in-depth review of conditions at facilities that perform urine specimen collections for drug tests regulated by the Department of Transportation (DOT).

On February 19, 2007, Fox News report aired in Minneapolis, MN indicating problems in four out of five collection facilities, which afforded employees opportunities to cheat or circumvent the urine specimen collection process. Another important figure released was a recent Oregon State Police report that showed an 8.9% positive rate on their most recent roadside Operation Trucker Check. The DOT estimation of the positive drug rate is 1.7%.

To make matters worse, in 2005 GAO testified before Congress that approximately 400 products were available on the market specifically designed to beat a drug test. The lack of consistent and secure procedures in the collection facilities only seems to contribute to the Congressional concern about the effectiveness of the drug testing program.

There are a number of ways to look at these contradictory data, but suffice it to say, not all collection problems are of such nature that they would increase the possibility of someone cheating on a drug test. In fact, the high percent of positive results in the Oregon report includes the detection of prescription drugs (which DOT does not test for) and does not include potential “down grades” to negative results by a medical review officer.

So, is the program successful and are you getting your money’s worth?
You bet the program is working! Quest Diagnostics, one of the larger Health and Human Services certified drug testing laboratories, publishes a Drug Testing Index which shows a dramatic decrease in drug positive rates from 1988 to 2006: 13.6% versus 3.8% for more than 9 million tests in 2006. A breakout for Federal and DOT results indicates a positive rate for of 2.0% for 2006. You can check this out on their web site at: http://www.questdiagnostics.com/employersolutions/dti/2007_03/dti_index.html.
Drug testing in general has decreased drug usage by individuals in safety-sensitive jobs (e.g., drivers). Therefore, how could an employer increase the likelihood that a drug program will be successful?

First of all, as an employer, you have little impact on what happens at the collection site. You have to assume that the staff conducting the collections has been properly trained and are aware of procedures that hey have to use. Of course, one major problem is that urine specimen collection generally is not a clinic’s primary function and it may not receive the attention it deserves.

Lesson #1
There is nothing wrong with periodically asking one of your employees who went through the collection process to describe to you what the procedures were like or to specifically tell you if there were any actions which may have appeared as inappropriate. Of course, you have to take these second hand reports with a grain of salt, but if you hear the same potential problem from two or three of your employees, you need to take action. This could be as simple as calling the collection site and asking them what their procedure is in that particular area. (We have to assume that as an employer, you have some knowledge of what constitutes a proper collection.) If you use a third party administrator (TPA), you should pass your concerns on to them for resolution. The TPA can visit the collection site, can review their procedures, and can correct any deviations.

Lesson #2
Devote some time and thought is to your drug and alcohol policy and what it states in reference to certain procedures. For example, how much notice do you give to applicants about when they are to go for a drug test? By the way, this is really an IQ test; if you tell an applicant to take a drug test three days from now and they come back positive, not only do you not want to hire them because they are using drugs, but they are also not very smart!

Your procedure should give applicants minimal notice of when a drug test will be conducted and the process should not be predictable. The same goes for your current employees. When you tell one of them to take a drug test, what is the time span for arrival at the collection site? Do they have the whole day during which they can go to the clinic? In other words, if you tell an employee in the morning to go sometimes that day to the clinic for a drug test, that individual has all day to try and obtain some adulterants, a prosthetic device, clean urine, etc. At this point, you have just wasted your money on a drug program that will not be effective.

Your policy should state that the employee has a specific time to get to the collection site (based on travel distance, etc.) and that the only exceptions would be documented problems, such as an auto accident, emergency room visit, or abduction by space aliens. Arrival after that time is considered refusal to test. Make it plain and simple.

Some employers make a glaring mistake when they identify an employee who is acting in such a way that a reasonable suspicion test is required. (Same goes for post-accident testing.) They either tell the employee to go on his/her own to the collection site or they tell the employee to finish working and then go to the collection site. In either case, the employer is risking potential legal liability. All you need is a subsequent accident on the job or on the way to the collection site and you are up to your armpits in litigation. Bottom line: if you think a reasonable suspicion test is required, take the employee yourself to the collection site or have a collector come to the work-site.

On-Site Collection
Every employer should seriously consider having the urine specimen collection conducted at the job site. Many TPAs train and employee individuals who can conduct urine specimen collections and breath alcohol tests outside a clinic environment, right on the jobsite. This prevents the employees being tested from having any opportunity to obtain adulterants, clean their urine, or develop excuses for why they could not make it to the clinic. Additionally, the cost of an on-site collection may not be as expensive as it may appear initially. Don’t forget to factor in the cost related to having two or three employees on the clock, but not working while they go to a clinic for a drug test. If the average salary is $30.00 per hour and the round trip to the clinic plus the time spent providing the sample averages out to three hours; three employees taking a drug test will cost you $270.00 in non-productive work time. On-site testing could bring that down by a third.

Getting back to the GAO and the Oregon State Police data; what does it indicate? There is some difference between the Oregon data and what DOT and Quest Diagnostics are reporting. There probably are some problems at collection sites and there are employees who will try to subvert the system. You can’t catch everyone who is trying to cheat, but you can certainly make it a lot harder. Will these few simple actions on your part improve the actual urine specimen collection process? Probably not significantly, but it may decrease the ability of certain individuals to “plan” on how to overcome a drug test. It is important that you don’t give them that extra time and opportunity when you notify them about an upcoming test. A little effort on your part will save you money in the long run.

About the Author
Don Shatinsky Former Senior Drug and Alcohol Policy Advisor at DOT, one of the authors of the Federal drug/alcohol testing regulations (49 CFR Part 40), and now a consultant in the drug testing field and a Regional Representative for Concorde, Inc. The opinions expressed in this Blog are for educational and informational purposes only. Any personnel or legal actions should be based on the actual rule text.

Post-Accident Testing

2007-11-02T09:36:00.000-07:00

POST-ACCIDENT TESTING WHAT DO THE FEDS WANT?
By Don Shatinsky
Former Senior Drug and Alcohol Policy Advisor at DOT and one of the authors of the Federal drug/alcohol testing regulations (49 CFR Part 40), now a consultant in the drug testing field and a Regional Representative for Concorde, Inc. The opinions expressed in this Blog are for educational and informational purposes only. Any personnel or legal actions should be based on the actual rule text.

ACCIDENTS HAPPEN – RIGHT?

You bet, that’s why they are called accidents, and you have no control over them. What you do have control over is what happens following the accidents. Do you wind up doing something stupid that may result in fines and/or litigation or do you know what to do and stay out of trouble?
Just a Note: we are talking here about the highway industry. Approximately 90% of the Department of Transportation (DOT) drug and alcohol testing is in this category. Post-accident testing for aviation or rail is significantly different, but comprises only a small percentage of the over all transportation testing.

All good questions and the following will hopefully help you sleep better. There are really two decisions you have to make:
· The accident meets DOT criteria, or
· The accident does not meet DOT criteria

Simple, right? No, because many safety managers test everyone and then try to sort out if it was supposed to be a DOT test or non-DOT test.

Remember this!!! To apply this simple rule, you have to know which drivers are covered by DOT regulations. Again, simple, but there are still managers and supervisors who miss the boat.

Your driver comes under Federal regulations if:
The driver is using a commercial driver’s license (CDL); and
Operates a commercial motor vehicle (CMV) that has a gross vehicle weight rating of 26,001 pounds or more; or
Drives a vehicle designed to transport 16 or more passengers, including the driver; or
Drives a vehicle of any size used in the transportation of materials found to be hazardous under the Hazardous Materials Transportation Act and is required to be placarded under 49 CFR Part 172, subpart F.

One last two-step process. Drivers who are subject to post-accident testing are those who:
While performing safety-sensitive functions (i.e., driving a CMV) are involved in an accident resulting in a loss of human life, or While performing safety-sensitive functions are involved in a nonfatal accident resulting in the driver receiving a citation under State or local law for a moving traffic violation arising from the accident.

The question that frequently comes up is that the citation by law enforcement is not issued until the next day; say 12 hrs after the accident. What is the employer to do? For drugs you have up to 32 hours following the accident to perform the test. However, since the 8-hour window for alcohol testing has passed, you cannot test for alcohol. Once the clock runs out, you may not conduct any DOT testing.

Why is it important to determine if a test is supposed to be a DOT test or one under company policy? Because the government has limited authority to order an individual to provide a urine specimen for a drug test. When a company conducts a test using the Federal Chain of Custody Form, the company is notifying the driver or employee that the government is requiring this test. If it was supposed to be a non-DOT test, the government gets very unhappy – because you as an employer are misrepresenting their authority – and they have no problems levying fines for such actions on your part. Enough said; play by the rules and you should not be afraid of an audit.

Couple issues to remember. If you don’t do the alcohol test within 2 hours you must maintain a record of why the test could not be performed; then you have up to 8 hours in which to try and conduct the breath alcohol test – and again document why it could not be done earlier. The same goes for a drug test: if you cannot perform a drug test within the 32 hr. time frame you need to document the reason(s) and maintain that file.

And finally, drivers subject to post-accident testing must refrain from using alcohol for 8 hours following the accident or until completing a post-accident alcohol test, whichever comes first. It is imperative that the employers provide drivers with necessary post-accident information, procedures, and instructions prior to their operating a CMV, so that they and the employer will be able to comply with the rules.

Bottom line – know the rules and follow them!