July 31, 2001
Changes
Employers Need to Know Regarding DOT's Revised
Workplace Drug and Alcohol Testing Rule
By Peter H. Wald , MD, MPH
Board-Certified, Occupational Medicine, Medical
Toxicology, Internal Medicine
Principal, WorkCare
More than 8 million
private and public sector employees are covered
by the U.S. Department of Transportation's (DOT)
regulations regarding drug and alcohol testing.
Employers regulated by these agencies should be
aware of the DOT revised rule governing drug and
alcohol testing. Most of the revisions to this
law go into effect on August 1, 2001 -although
some provisions went into effect on January 18,
2001 . This article discusses the key provisions
of the new law that are applicable to employers.
Background
The DOT is responsible
for implementing and enforcing regulations that
cover the following industries that are
represented by the corresponding DOT agency:
- Aviation--Federal
Aviation Administration
- Motor
Carriers/Highways-Federal Highway
Administration
- Mass Transit-Federal
Transit Administration
- Railroads-Federal
Railroad Administration
- Maritime-U.S. Coast
Guard
- Pipeline-Research and
Special Programs Administration
The majority of U.S.
workers covered by DOT regulations are truck and
bus drivers. The definition of who is covered
under the Federal Highway Administration (FHA)
is an individual with a commercial driver's
license (CDL), who operates a commercial vehicle
as defined by this agency. Commercial motor
vehicle means a motor vehicle or combination of
motor vehicles used in commerce to transport
passengers or property if the motor vehicle-
- Has a gross
combination weight rating of 11,794 or more
kilograms (26,001 or more pounds) inclusive
of a towed unite with a gross vehicle weight
rating of more than 4.536 kilograms (10,000
pounds); or
- Has a gross vehicle
weight rating of 11,794 or more kilograms
(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 the transportation of materials
found to be hazardous for the purposes of
the Hazardous Materials Transportation Act
and which require the motor vehicle to be
placarded under the Hazardous Material
Regulations.
Key Provisions of
Revised DOT Drug and Alcohol Testing Procedures
(Known as DOT regulation 49 CFR Part 40)
Affecting Employers
Employee
Stand-Down
This area of the revised
law was the most controversial. The main issue
regarding this law is whether an employee should
be removed from safety-sensitive duties, known
as a stand-down, before a Medical Review Officer
(MRO) has verified laboratory Positive test
results. The DOT has long been concerned that
the innocence of an individual should be
maintained prior to the process that
authenticates illegal use of a prohibited
substance.
Although a number of
organizations and individuals appealed to the
DOT to allow employers to "stand-down"
employees from the time the laboratory notifies
the MRO of a Positive test, the DOT continues to
prohibit this practice-unless employers apply
for a waiver that permits the stand-down. This
waiver provision is a new component of the rule.
The request for waiver
must be made to the appropriate operating
administrations (FAA, FTA, etc.) and must be
obtained prior to initiating a stand-down. The
agency will grant waivers for compelling
reasons. Once the MRO has verified a Positive,
Adulterated or Substituted result, employers are
advised to not delay removing employees from
safety-sensitive work.
Alcohol Testing
There are limited changes
in the alcohol testing requirements for
employers. Employers are required to removed
employees working in safety-sensitive jobs whose
alcohol test results are greater than 0.02. A
positive test is defined as results greater than
or equal to 0.04. A new Breath Testing Form with
minor changes is required as of August, 1, 2001.
Return-to-Work
Process
The rule includes
consequences for employees with Positive tests
or who have refused to test. The return-to-duty
process is mandatory following any violation of
the rules, including a Positive result on a
pre-employment test. Employees who have tested
Positive may not return to a safety-sensitive
position until they have been evaluated and
undergone treatment outlined by substance abuse
professionals ( SAPs ). If an employee does not
complete this assessment or treatment with the
current employer, he or she must complete this
requirement before being hired for any
safety-sensitive position by any other employer
who is governed by DOT. See specific details
regarding a SAP's role in evaluating personnel
who have Positive test results or have refused
to test.
Definition of
Test Results
Employers should be aware
of laboratory reporting language to better
understand test results and apply appropriate
rules. In addition to drug and alcohol Positive
and Negative test results, Negative-Dilute is
also used to describe a result when no drug was
found in the specimen. The rules have changed in
the actions employers may take when a
Negative-Dilute result is reported. Employers
can accept the test result as negative or they
can order a re-collection-not under direct
observation. If the employer's policy is to
retest, the employer must accept the retest as
the only test even if it's a Negative-Dilute.
Employers can retest all Negative-Dilutes
Pre-Employment test results, but not retest all
Negative-Dilute Random or other test types.
Pre-Employment
Screening
Employers are required to
inquiry about an applicant's prior employers
(previous two years) regarding Positive tests,
Refusals to Test and Alcohol Tests of greater or
equal to 0.04, as well as other DOT alcohol and
drug rules, such as Return to Duty and Follow-Up
Testing procedures. The employer's application
must include a question about any failed or
refused DOT-mandated Pre-employment tests taken
in the previous two years.
Additional
Significant Revisions to 49 CFR Part 40
Validity Testing Validity
testing is a process used to deter and detect
attempts to change (adulterate) a urine sample
to achieve a negative result.
The new rule, effective
January 18, 2001 , requires the medical review
officer to interview those donors whose
specimens are reported as substituted,
adulterated or invalid.
Validity testing for all
specimens will become mandatory, beginning
August 1, 2001 , if amendments to the Department
of Health and Human Service Mandatory Guidelines
are issued at that time.
PIE: The Public
Interest Exclusion
This change went into
effect on January 18, 2001 and was designed to
protect the public from the effects of serious
noncompliance by service agents. Prior to this
change, compliance was completely the
responsibility of the employer. There was no
rule to hold service agents, such as third party
administrators, MROs or other agencies involved
in the testing process, accountable for their
actions. The revised rule allows the government
to issue a Public Interest Exclusion (PIE),
which prevents a service agent who has been
found guilty of an egregious breach of the
regulatory process from participating in
DOT-required drug and alcohol testing for a
period of time.
For more information on
these rules, visit the DOT web site at:
http://www.dot.gov/ost/dapc/49cfr40highlights.htm
Highlights of rules
http://www.dot.gov/ost/dapc/main/CFRintro.htm
Full and final rule
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