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

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.