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

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.