In 2001, the U.S. Department of Transportation ("DOT") has announced a rule changes for drug and alcohol testing applicable to transportation workers in safety-sensitive positions. The revised rule, 49 C.F.R. Part 40, addresses in detail procedures to be followed in drug and alcohol testing programs.
In 1988, the DOT first required drug testing of employees in safety-sensitive positions in the aviation, motor carrier, rail, transit, maritime, and pipeline industries. Alcohol testing was added to the requirements in 1994.
The revised rules mandated general split-specimen testing, require validity testing (to detect adulterated, substituted or diluted specimens), expand mandated medical review officer verification and split-specimen testing to adulterated and substituted samples, allow DOT to exclude laboratories and other "service agents" from regulated testing work and bar employers from engaging such service agents for such work, as well as make other changes.
Since that time, the regulations, in accordance with recent federal requirements, are in "plain English," question-and-answer format. They address the reader directly, for example, "If you are an employer, you must . . ." They attempt to describe the obligations of each person or entity in a particular situation. Guidelines have been published by DOT further to explain the requirements of the rule.
Types of Drug and Alcohol Testing
The types of drug and alcohol testing required by DOT remain, specifically, pre-employment, reasonable suspicion, post-accident, random, periodic drug testing (FAA only), return-to-duty and follow-up testing, although follow-up testing now literally may follow the employee from one job to another and continue despite breaks in service. Also, the substances to be tested for will continue to be the "HHS Five", including marijuana, cocaine, amphetamines, phencyclide (PCP), and opiates.
Highlights of the Drug and Alcohol Testing Procedures
Medical Review Officer ("MRO") Verification and Split Specimen Testing Following Adulteration and Substitution Findings
The two main categories of tampering with urine samples are:
adulterating a sample (i.e., putting a substance into a specimen designed to mask or destroy the drug or drug metabolite that the specimen may contain), or
substituting a specimen (i.e., supplying water or some other substance in place of urine).
Under the DOT's rule, if there is a verified finding that an employee's initial drug or alcohol test was adulterated or substituted, the employee may request a test of the split specimen. (Specimens are divided into two containers; the second, or "split" specimen, usually is not tested unless the donor disputes a verified positive finding based on a laboratory analysis of the principal specimen.)
A second laboratory will test the split specimen. The employee will have the opportunity to present a legitimate medical explanation to the Medical Review Officer ("MRO"). An MRO is a licensed physician who is responsible for receiving and reviewing laboratory results generated by an employer's drug testing program and evaluating medical explanations for certain drug test results.
Public Interest Exclusion ("PIE")
"Service agents" are persons and organizations that provide drug and alcohol testing services to employers, such as laboratories, MROs, substance abuse professionals, collectors, breath alcohol technicians, screening test technicians, consortia and third-party administrators. Service agents will be held accountable for "serious noncompliance" with DOT's drug and alcohol testing rule.
The revised regulation will permit DOT, after following a series of procedures, to impose a "public interest exclusion" ("PIE") on the offending service agent. A PIE would direct DOT-regulated employers to not use the service agent for a period of time ranging from one to five years. (The service agent could apply for relief from the PIE after nine months).
Split-Specimen Collections
All collections are required to be split-specimen collections. Employees may request a split-specimen test within 72 hours from the time they are notified of a verified positive drug test or refusal to test because of adulteration or substitution. An employer must assure that such tests may be conducted upon proper request.
Compliance may not be conditioned on the employee's direct payment to the laboratory or MRO, or the employee's agreement to pay for all or some of the costs of testing the split specimen. The employer may seek reimbursement of all or part of the cost of the split specimen from the employee under company policy or a collective bargaining agreement, but DOT takes no position on who ultimately pays.
Validity Testing
Validity testing becomes mandatory. This is testing conducted by laboratories to deter and detect tampering with drug tests. DOT will require laboratories to test all incoming primary specimens for dilution, substitution and adulteration. The Department of Health and Human Services ("HHS") has developed the Mandatory Guidelines for Federal Workplace Drug Testing Programs. (82 FR 7920)
Follow-Up Testing "Follows" an Employee
DOT continues the rule requiring a minimum of six follow-up tests in the first year of safety-sensitive work following the employee's return to duty after a DOT drug or alcohol test violation. It also continues to permit more follow-up testing, in the discretion of the treating substance abuse professional, for a period of up to 60 months.
A substance abuse professional, or "SAP," is a person who evaluates employees who have violated a DOT drug and alcohol regulation and makes recommendations concerning education, treatment, follow-up testing, and aftercare. However, DOT has added a requirement that follow-up testing "follow" the employee from one job to another and persist through a break in service.
Prohibition of "Stand-Down" Unless a Waiver is Granted by DOT
The practice of "stand-down" continues to be prohibited. "Stand-down" refers to the employer practice of temporarily removing an employee from the performance of safety-sensitive duties (driving and related functions) upon learning that the individual had a confirmed laboratory positive drug test, but before the MRO has completed the verification process. (During this process, the MRO attempts to ascertain from the employee whether any legitimate reason may exist to explain the confirmed, positive result).
The revised regulation sets forth a waiver mechanism, however, by which an employer may seek DOT operating authority approval for a specific, written stand-down plan that permits a "stand down," but effectively protects the interests of employees.
Negative Dilute Tests
Employers will be given discretion as to how to handle these situations. An employer may require the employee to submit to a recollection, as long as no advance notice of the recollection is provided to the employee. Recollection generally should not be conducted under direct observation since there may be innocent reasons for the dilute specimen. (Recollections are unnecessary where the test result is both positive and dilute.)
"Shy Bladder" Situations
If an employee has not produced a sufficient specimen by the end of the collection process, the employee must be evaluated by a physician. Unless the physician finds that a medical condition resulted, or could have resulted, in the inability to provide a sufficient specimen, the employee is regarded as having refused to test. A refused test requires the removal of the employee from safety-sensitive duties under the regulations. An employer's own policy, however, may impose other sanctions for such refusal.
Recollection Under Direct Observation In Certain Circumstances
Recollection of a urine specimen under direct observation is required following a verified positive, adulterated or substituted test that is canceled because the split-specimen is unavailable for testing. The unusual requirement of direct observation is warranted here, according to DOT, because split samples generally test consistently with the primary samples, and the original results give a strong indication that a violation has occurred.
Transmission of Information Through Consortia and Third-Party Administrators
The revised rule gives DOT-regulated employers the choice of receiving drug test results directly from the MRO or through a consortium or third-party administrator. Currently, MRO's notify the employers directly.
MRO Prohibition on Release of Information
MRO's are prohibited from releasing information about employees' drug and alcohol tests to any third-party employer. This is true even where, for example, an employee who tests positive in a test administered by one employer "moonlights" in a DOT-regulated safety-sensitive position for a second employer.
Querying of Prior Employers
Employers of a safety-sensitive workers are required to ask a new employee's previous employers about his/her DOT drug and alcohol test information.
Release of Test Information in Court Proceedings
Employers may release test information in a criminal or civil court proceeding resulting from an employee's performance of safety-sensitive duties, if ordered by a court. Otherwise, the information generally may not be released other then to the employee, the DOT, its operating authority, and to a designated employer representative or other authorized person.
Service Agent Contract Language
Contracts between employers and service agents, whether written or unwritten, are deemed, as a matter of law, to require compliance with Part 40. Thus, a DOT violation by the service agent would constitute a breach of contract. This has the potential of placing added responsibility on the employer to police the agreement. Additionally under the Safe Roads Act of 2012, Congress provided authority for civil penalty actions against service agents (49 USC 31306a ).
MRO/Laboratory Conflicts of Interest
MROs and laboratories must avoid conflicts of interest or the appearance of conflicts of interest. An MRO should have no financial interest in the laboratories whose test results he or she must verify.
Collector Training
DOT will require additional training of both new and current collectors. Evidence before the DOT during rulemaking suggested that the mistakes of collectors were most often the reason for invalidating test results.
Electronic Technology Applications
DOT will permit greater use of faxes and scanned computer images for reporting test results.
Custody and Control Form
A revised Federal Drug Testing Custody and Control Form was issued on August 8, 2017. This form made small changes to the CCF form that had been in use since 2010.
Impact of the Revised Rule on Dot-Regulated Employers' Responsibilities
DOT's revised rule affects DOT-regulated employers, as well as laboratories, collectors, MRO's, and other service agents. One important aspect of the drug and alcohol testing regulations is the record keeping requirements for the employer, not only to present to auditors, if requested, but to be able to provide to future employers of the employee. Some of the important provisions which are particularly significant for DOT-regulated employers are below.
Obtain Drug and Alcohol Testing Records of Previous Employers
The DOT has incorporated an existing Federal Motor Carrier Safety Administration regulation into the revised drug and alcohol testing rule. All DOT-regulated employers must, after obtaining an employee's written consent, request the following information from the employee's previous DOT-regulated employers for the two years prior to the employee's hire or transfer into a safety-sensitive position:
Alcohol tests with a result of 0.04 or higher alcohol concentration;
Verified positive drug tests;
Refusals to be tested (including verified adulterated or substituted drug results);
Other violations of DOT drug and alcohol testing regulations; and,
With respect to any employee who violated a DOT drug and alcohol regulation, documentation of the employee's successful completion of DOT return-to-duty requirements (including follow-up tests). If the previous employer does not have information about the return-to-duty process, you must seek to obtain this information from the employee.
If the employee refuses to provide written consent, the employer must not permit the employee to perform safety-sensitive functions. This requirement applies only to employees seeking to begin performing safety-sensitive duties for the first time (e.g., new hires, or a transfer into a safety-sensitive position).
If the employer obtains information that the employee has violated a DOT drug and alcohol regulation, the employer must not use the employee to perform safety-sensitive functions unless the employer also obtains information that the employee subsequently has complied with the DOT return-to-duty requirements. These include evaluation by an SAP, appropriate referral and treatment, return to duty testing, follow-up testing, and additional treatment, aftercare or support group services.
In addition, the employer also must ask the employee whether he or she has tested positive, or refused to test, on any pre-employment drug or alcohol test administered by a prospective employer to which the employee applied for, but did not obtain, safety-sensitive transportation work covered by DOT drug and alcohol testing rules during the past two years.
If the employee admits that he or she had a positive test or refused to test, the employer must not use the employee to perform safety-sensitive functions, until and unless the employee documents successful completion of the return-to-duty process.
Split-Specimen Collections
Employers must ensure that all laboratories they use perform split specimen collections of urine, as described above.
Designated Employer Representative ("DER")
An employer must have a Designated Employer Representative , who is an employee authorized by the employer to take immediate action(s) to remove employees from safety-sensitive duties and to make required decisions in the testing and evaluation processes. The DER also receives test results and other communications for the employer. An employer is prohibited from using a service agent to act as its DER.
Treatment of Negative Dilute Specimens
If a MRO informs an employer that a negative drug test was dilute, the employer may, but is not required to, direct the employee to take provide another specimen immediately. Such recollection must not be made under direct observation, unless there is some other basis justifying the use of direct observation (for example, the original specimen appeared to have been tampered with). All employees must be treated consistently for this purpose.
Responsibility for Obtaining Information from Service Agents
An employer is responsible for obtaining information from its service agents, even if it uses a consortium or third-party administrator to transmit information to it. If, for example, there is a delay in obtaining the results of an applicant's drug test, the employer must not assume that "no news is good news" and permit the applicant to perform safety-sensitive functions before receiving the result. It must affirmatively inquire as to the results. (49 CFR §40.17).
Ensuring That Service Agents Used by the Employer Are Not Subject To A PIE
Employers must ensure that any service agents they engage (e.g., laboratories, collectors, MRO's, SAP's, third-party administrators) are not subject to a public interest exclusion ("PIE"). DOT will issue PIEs to service agents who do not comply with DOT's drug and alcohol testing rule. A PIE directs DOT-regulated employers not to use the service agent for a period of time ranging from one to five years.
Employers are deemed to have notice that a service agent is subject to a PIE when DOT places the service agent on its "List of Excluded Drug and Alcohol Service Agents," found on DOT's website. Once the employer has notice that a service agent is subject to a PIE, the employer has 90 days within which to stop using the services of that service agent. If an employer continues to use the services of that service agent beyond the 90-day notice period, the employer will be in violation of DOT's regulations and may be subject to applicable DOT sanctions (such as civil penalties and withholding of Federal financial assistance).
Conclusion
The summary outlined above mentions only some of the more significant provisions of the drug and alcohol testing rule for DOT-regulated employers. (The rule in its entirety is available on the DOT website, docket OST-99-6578, or on the Federal Register's website).
Employers who are subject to a DOT operating authority should be apprised of the new regulations. They should review their substance abuse and alcohol testing policies, as well as their relationships to service providers, to make sure they will be in compliance with the changes in the DOT rules.