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The Department of Transportation has issued its revised rule governing
drug and alcohol testing procedures (49 CFR Part 40). The rule was published in the Federal Register on Tuesday, December
19, 2000, and is on the DOT web site at http://www.dot.gov/ost/dapc/NEW_DOCS/part40.html?proc. Most
provisions of the rule go into effect August 1, 2001, but some provisions – additional
safeguards for employees in validity testing and a service agent accountability
mechanism – went into effect on January 18, 2001. Additionally,
DOT published in the Federal Register a technical amendment to Part 40
on August 9, 2001 to clarify certain provisions of the rule and address
omissions and minor problems. The following are some of the key provisions of the new rule: Specimen Validity Testing (SVT). The requirement for medical
review officer (MRO) review of substitution and adulteration test results
and the employee option to request split specimen testing for these results
went into effect January 18, 2001. Specimen validity testing currently
is voluntary (for emplyers and laboratories) but will become mandatory
when the Department of Health and Human Services (HHS) Mandatory Guidelines
are issued in the near future. Stand-Down. Temporarily removing employees from safety-sensitive
duties after a confirmed positive, adulterated, or substituted laboratory
test result, but before the MRO has verified the result (stand-down)
is generally prohibited. However, employers can request a waiver permitting
stand-down. Waiver requests must include a written stand-down policy
providing, among other things, for confidentiality of information about
the test, paying workers during the stand-down period, and expunging
records of the confirmed test result if the test is verified negative
or cancelled. The request for a waiver must be directed to the individual
operating administrations and must be obtained prior to initiating a
stand-down policy. Public Interest Exclusions (PIE). The final rule includes a
public interest exclusion mechanism designed to protect the public from
the effects of serious noncompliance by service agents. A service agent
who engaged in serious misconduct could be excluded from participating
in DOT-required drug and alcohol testing for a period of time. Employers
will have the ability to determine which service agents have been excluded
through announcements in the Federal Register and by looking at
the DOT web site. In response to comments, the final rule’s PIE
provision lists examples of noncompliance that could subject a service
agent to a PIE proceeding and provides extensive administrative due process
to ensure fairness. The PIE provision went into effect January 18, 2001. Training. A well-trained work force is vital to an accurate
and fair drug- and alcohol-testing program. For this reason, Part 40
includes enhanced training requirements for collectors, breath alcohol
technicians (BATs), screening test technicians (STTs), medical review
officers (MROs), and substance abuse professionals (SAPs). This includes
initial ("qualification") training, refresher training every
five years (for collectors, BATs, and STTs), continuing education (for
MROs and SAPs), and "error correction training" (for collectors,
STTs, and BATs) following a mistake that causes a test to be cancelled. Collection Process. All collections – including those under
the Research and Special Programs Administration (pipeline industry)
and the U.S. Coast Guard – are now conducted as split specimen collections. A
collection under direct observation will be required following a situation
in which a test is cancelled because the split specimen was unavailable,
but not following a negative dilute test result. Otherwise, direct observation
testing is the same as under the previous rule. A body temperature is
no longer required when the first specimen’s temperature is out
of range. An employee’s decision not to drink fluids in a "shy
bladder" situation will not be regarded as a refusal to test. Collectors
will not require employees to remove their boots, but are required to
ask employees to display the contents of their pockets. A new, shorter
version of the Federal Drug Testing Custody and Control Form was developed
for use starting August 1, 2001, together with a standard urine collection
kit. Laboratory Process. All laboratories will be required to initiate
validity testing on all specimens starting August 1, 2001. However,
this requirement will not become mandatory until HHS publishes their
Mandatory Guidelines. The new rule also permits transmission of laboratory
results to the MRO electronically eliminating the need for transmission
of paper documents for negative results. The number of blind specimens
that an employer has to submit to laboratories has been reduced substantially
and laboratory statistical reports have been reduced from four to two
per year. Medical Review Officer (MRO). The prohibition against MROs having
any relationship with a laboratory that may create a conflict of interest
is restated in the new regulation. MROs are required to personally conduct
a verification interview with the employee not only for drug positive
results, but also when the specimen is reported as adulterated or substituted. For
opiate verification, if either morphine or codeine is reported at or
above 15,000 ng/mL, the burden for explaining its presence shifts to
the employee. In specific cases when a result is invalid or rejected
for testing, the MRO may require a recollection under direct observation. The
MRO is required to release certain medical information to third parties
if that information indicates a safety issue related to the employee’s
continued performance of safety-sensitive functions. The rule also indicates
specific situations that the MRO is prohibited from doing during the
verification process. Alcohol Testing. There are few procedural changes
in the alcohol testing requirements. A new Breath Testing Form with
minor changes was developed and its use was required as of August 1,
2001. The rule spells
out procedures to correct problems in the testing process, identifies
fatal flaws, describes what constitutes a refusal, and addresses "shy
lung" procedures. Substance Abuse Professional (SAP) and the Return-to-Duty Process. All
positive tests and refusals to test now have a consequence. SAPs must require
education and/or treatment in all such cases. The return-to-duty process
is mandatory following any violation of the rules, including a positive
on a pre-employment test. The number of follow-up tests remains the
same as under the previous rule: a minimum of 6 tests in the first 12
months following return to duty. Employers may, but are not required,
monitor aftercare for employees who have returned to work following a
violation. Return-to-duty process and follow-up testing requirements
continue to apply even if workers change jobs or have a break in service. Role of Consortia/Third-Party Administrators (C/TPAs). With
some exceptions (e.g., transmission of medical information from MROs
to employers, transmission of SAP reports to employers), employers may
choose to have drug test results and other information transmitted to
them via a C/TPA or directly from the MRO or other person who generates
the information. As service agents, C/TPAs are not "employers" for
purposes of the rule and cannot play the "designated employer representative" (DER)
role for employers. C/TPAs cannot receive test results from laboratories. Other Issues. Employers will be required to obtain, from
an applicant's previous employers over the past two years, drug and
alcohol testing information. "Blanket releases" for
testing informatino continue to be prohibited. The new rule takes steps
to authorize
greater use of electronic means of transmitting and storing data and
also addresses specific requirements for releasing information to employees
at their request and clarifies when such information may be released
to other third parties.
Conforming Rulemakings. All six DOT agencies involved
in the drug- and alcohol-testing program issued proposed modifications
to their
regulations in the Federal Register in late Summer 2001, to ensure
that their regulations are consistent with the new Part 40.
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