Well, this is the start of a new year and a time to reassess where we have been, where we are, and where we are going. Last year, 2009, was a year that concentrated primarily on one item in the DOT drug-testing program – direct observation testing for return-to-duty and follow-up testing. All the energies and efforts of the DOT were spent defending their decision – and they were ultimately successful in the courts.
Interestingly enough, although this seemed a controversial subject, there really was little fallout from this policy decision – collection sites seemed to accept the fact that they now had to do direct observation collections in these situations (something that employers had an option to do anyway under the previous policy) and employers seemed to accept this change as the price of doing business. Other then that and the fact that the economy was taking a hit, 2009 was a dull year.
Current status? Employers must continue to meet the Federal regulatory requirements for conducting drug and alcohol testing; the program is not going away. As the economy improves, employers must not forget that drug testing is one of those operational necessities that must be in place – no different than other personnel and operational policies and procedures that they have to have in place to meet Federal and other legislative requirements to stay in business. As employers return to a hiring posture, more pre-employment drug and alcohol testing will have to take place and employers need to plan for this added cost increase.
The future – since no one can predict it – is a lot more fun! What will happen is any ones guess. However, there are a few indicators that the program will get a little more complicated and require more diligence to implement. Two things will be happening within the next few months. On November 25, 2008, the Department of Health and Human Services (HHS) published a revision of their Mandatory Guidelines for Federal Drug Testing Programs, which will become effective May 1, 2010. This Final Notice addresses collection and testing of urine specimens, the requirements for the certification of Instrumented Initial Test Facilities (IITFs), the role of and standards for collectors and Medical Review Officers (MROs), and adds additional drugs to those currently being tested. A copy of the revised guidelines is available at: http://workplace.samhsa.gov/DrugTesting/Files_Drug_Testing/Federal/frmanguide2008.pdf.
Proposed Revisions to the Mandatory Guidelines addressing the use of point of collection testing (POCT), oral fluid testing, sweat patch testing, hair testing, and associated issues will be published at a later date. According to the HHS, with regard to the use of alternative specimens including hair, oral fluid, and sweat patch specimens in Federal Workplace Drug Testing Programs, significant issues have been raised by Federal agencies during the review process, which require further examination, and may require additional study and analysis. When and if HHS approves use of alternative specimens, then the whole landscape of Federal drug testing will change. Employers will have major changes to contend with and a staggering amount of new procedures to implement.
The second item of interest is that HHS published a Notice of Proposed Revisions to the Federal Custody and Control Form (CCF), revising the form to conform to the revised Mandatory Guidelines, which will expand the drug testing profile to include new drug analytes:
- methylenedioxymethamphetamine (MDMA) commonly known as ``ecstasy,''
- methylenedioxyamphetamine (MDA), and methylenedioxyethylamphetamine (MDEA) which are close chemical analogues of MDMA.
A major change is to discontinue recording split specimen test results on Copy 1 of the Federal CCF. Instead, Step 5b of Copy 1 will be used to identify the split testing laboratory (i.e., laboratory name, city, and State), to indicate that the split specimen was tested, and to refer to a separate laboratory report for the split specimen test results. These new regulatory actions will require that the Federal CCF be modified to accommodate the new rule changes. Employers, and especially collection sites and MROs are encouraged to review this document and provide their input to HHS by January 19, 2010. (A copy of the Notice is available at http://edocket.access.gpo.gov/2009/pdf/E9-27371.pdf.)
So, what does all this have to do with the DOT drug testing requirements? Good question and here is the final answer – everything. The Omnibus Transportation Employee Testing Act of 1991, requires the DOT to use the laboratories certified by, and testing procedures of, the U.S. Department of Health and Human Services to ensure ``the complete reliability and accuracy of controlled substances tests.'' Since Congress specifically limited the scientific testing methodology upon which the DOT can rely in making its drug and alcohol testing regulations, The DOT must follow the HHS scientific and technical guidelines, including the amendments to their Mandatory Guidelines. However, the DOT has some options on procedural aspects of the program and these may, in fact, be different from those published by the HHS.
What does this mean in the long run? Well, the DOT will have to publish interim guidelines or interim rule making, give the public time for comments, and then publish a final rule. All of this will take time and the DOT will probably set up reasonable time frames to accomplish these changes. Forewarned is forearmed; employers will have to be aware of these upcoming changes and in some cases, like the additional drugs for testing, will have to add these changes to their current policies.
Bottom line: stay tuned to this publication and we will keep you up to date. Lets hope that 2010 will be a more productive year for everyone.