2010 Year in Review

The year is coming to an end and many of us may wonder what really happened in 2010 in the transportation industry related to our favorite subject – drug and alcohol testing!
Actually, 2010 was much more active and interesting than 2009. Although the economy has not improved much, unemployment is still high, and many small employers are struggling to stay afloat, drug and alcohol testing is not something you can disregard and hope that no one will notice.

Last year, 2009, was a year that concentrated primarily on one item in the DOT drug-testing program – urine specimen collection under direct observation 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.

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 was to become effective May 1, 2010. This Final Notice addressed 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 added additional drugs to those currently being tested.

However, on April 30, 2010, HHS published a Final Rule changing the effective date of the Revisions to Mandatory Guidelines for Federal Workplace Drug Testing Program from May 1, 2010, to October 1, 2010. This was due primarily to the fact that DOT was not able to publish a rule change in time to meet the May 1 deadline.

On November 17, 2009, HHS also published a Notice of Proposed Revisions to the Federal Custody and Control Form (CCF), revising the form to conform to the revised Mandatory Guidelines and expanded the drug testing profile to include new drug analytes: methylenedioxymethamphetamine (MDMA) commonly known as ``ecstasy,'' and methylenedioxyamphetamine (MDA) and methylenedioxyethylamphetamine (MDEA) which are close chemical analogues of MDMA.

To confuse the issue more, on February 4, 2010, DOT published a notice of proposed rulemaking (NPRM) in an attempt to harmonize the transportation drug and alcohol testing requirements with those of HHS and the revised guidelines.

On February 25, 2010, the DOT published a Final Rule authorizing employers in the Department’s drug and alcohol testing program to disclose to State commercial driver licensing (CDL) authorities the drug and alcohol violations of employees who hold CDLs and operate commercial motor vehicles, when a State law requires such reporting. Although this sounds like a simple process, there were a number of questions and uncertainties that produced some confusion for employers.

On August 16, 2010, the DOT published a Final Rule creating consistency with many of the HHS requirements of their Mandatory Guidelines. A major difference was that although HHS permits the use of Instrumented Initial Test Facilities (IITF), the DOT determined that based on the Omnibus Transportation Employee Testing Act of 1991, the use of IITFs within the transportation industry was not authorized.

And, although this is not a drug and alcohol testing issue, the Federal Motor Carrier Safety Administration (FMCSA) finally implemented a testing program in six states of their Comprehensive Safety Accountability 2010 (CSA 2010) – further adding to some anxiety by many carriers as to what the future may hold for them (we addressed this in the April blog). The national rollout of the program was to occur no earlier than December 12, 2010, despite reports to the contrary.

In the June 2010 blog, we addressed a few old questions: if a driver fails to show up at a collection site, who makes the determination that this is a refusal and when a driver returns to duty after a violation, does the employer have to conduct two tests – return-to-duty and a pre-employment test? A question was also raised on how to handle a situation when an alcohol test was administered inadvertently and what was the statue of limitations on a positive test.

A number of employers asked about K2, sometimes known as Spice, and what impact its use had on the DOT program. The November blog gave a summary of what K2 is and some issues related to the use of the drug. It is important to know that on November 24, 2010, The Drug Enforcement Administration (DEA) issued a Notice of Intent in the Federal Register to temporarily place five synthetic cannabinoids (including K2) into the Controlled Substances Act (CSA) pursuant to the temporary scheduling provisions under21 U.S.C. 811(h) of the CSA. What this means is that K2 will be subject to the regulatory controls and administrative, civil and criminal sanctions applicable to the manufacture, distribution, possession, importing and exporting of a Schedule I controlled substance under the CSA. Further, it is the intention of the DEA to issue such a final order as soon as possible after the expiration of thirty days from the date of publication of the notice. What this means, is that with the start of 2011, K2 will probably be illegal and employers will now be able to place in their policies certain sanctions for use and possession of this substance.

And finally, the recent revisions to the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs, which took effect on October 1, 2010, address the role and qualifications of Medical Review Officers (MROs) and HHS approval of entities that certify MROs. On December 8, 2010, HHS published a list approving several entities and boards. Although this should be transparent to most employers, it is something to remember if contracting directly with an MRO for services as opposed to using a Consortium/Third Party Administrator to operate the total program.

The bottom line is that 2010 was an “active” year compared to 2009. What will 2011 bring is another question. However, rest assured that there will be more regulatory changes, regulations, and guidelines to make everyone’s life more interesting. Just remember that drug and alcohol testing is not going away. It is easier to comply with the regulations than to try and avoid them.