Battle lines are being drawn; labor challenges DOT’s new rule related to direct observation for urine specimen collections.

You may remember reading a couple of months ago about DOT publishing new rules for direct observation collection of urine specimens. Now, DOT is postponing implementation of some parts of that rule until November 1, 2008.

What exactly is going on?

There is definitely some confusion going on, and as an employer, you are not alone in trying to understand the issues that seem to be in question.

Let us look at what actually happened:

On June 25, 2008 DOT published a final rule addressing a number of directives related to specimen validity testing and a modification in procedures for collecting urine specimens under direct observation (DO).

Because of the wide availability of prosthetic devices for providing clean urine, and findings by the Government Accounting Office that collectors are frequently less than diligent in preventing cheating during urine specimen collections, DOT directed that all DO collections also include the employee raising his/her shirt up to the navel and lowering pants/skirt to mid thigh. This was to ensure that no prosthetic devise was concealed on their person. This procedure was explained in the DOT notice of proposed rulemaking (NPRM) published on October 31, 2005.

In the June 25 final rule, DOT also mandated that all return-to-duty and follow-up tests (collections) be conducted under DO. Previously, DO collections for these type of tests were an employer option. Several labor organizations petitioned DOT to suspend this requirement since it had not been discussed in the October 31, 2005 NPRM. On August 26, 2008 DOT published a notice in the Federal Register changing the implementation date (for 40.67(b) – the section addressing mandatory DO collections for return-to-duty and follow-up) from August 25 to November 1, 2008 and provided a 30-day period for interested parties to provide comments.

What does all of this mean to you?

Simply put, all DO collections will require the new procedure to raise the shirt and lower pants/skirt. As an employer, you need to make sure that your collection site(s) or Third Party Administrator is aware of this requirement and will abide by it. Second issue – requirement for DO collections for return-to-duty and follow-up tests will remain employer option – until November 1 – when DOT will make a final decision.

That sounds pretty simple and employers may question what all the fuss is about? To a large degree, it’s all a matter of misinterpretation and misunderstanding. There are about 50 comments in the DOT docket from individuals and associations providing their views on this issue. Some commenters seem to think that DO collections are a new requirement and question the procedure’s invasiveness as well as the difficulty of meeting the requirement to have the same gender observer. This is puzzling, since the DO requirement has been in existence since August 2000. One may suspect that these individuals or companies have not been conducting DO collections in the past and are now surprised and think it is a new requirement.

Individual Comments
Some comments are from individual employees who are subject to these rules. Understandably, many of them are responding to the new procedure of lifting the shirt and lowering pants/skirt as overreaching and invasive to the extreme. Many labor organizations in addition to objecting to the shirt and pants/skirt procedure are lumping together the original DO requirement and the new directive making DO mandatory for return-to-duty and follow-up testing. Their original concern was that there was no comment period for requiring DO collections for return-to-duty and follow-up. DOT is now providing a 30-day period for comments on this subject.

SAP Comments
Quite a number of comments are from substance abuse professionals (SAP) and other individuals who provide treatment to drug and alcohol abusers. Most of them favor DO collections for return-to-duty and follow-up collections on the basis that these individuals have already provided evidence that they are users and/or dependent on drugs. In the SAP’s experiences, drug addicts often revert back to their destructive behavior and will use any means possible to avoid detection of their continued drug use. Drug testing is one way to not only detect use, but to also help and deter these individuals from reverting to their drug use behavior. Additionally, some SAPs indicated that many employers are reluctant to direct DO collections for return-to-duty and follow-up tests, thereby providing a potential opportunity for an employee who already is at risk to try and cheat on a drug test. Many of the comments state that if the concern is for safety of the traveling public, then DO collections for return-to-duty and follow-up are more than appropriate.

Collection Facility Comments
A number of collection sites made comments that they would not be able to meet these new DO requirements because their entire staff is female and most of the employees requiring drug testing are male. Here again, if this is what an employer hears from a collection site, the employer needs to ask what the site is doing now to meet the current DO requirement. There were some comments suggesting that if employers/ supervisors identified an individual for testing (return-to-duty and follow-up) and then accompanied that individual to the collection site, there would be no opportunity for the employee to obtain adulterants or prosthetic devices prior to the test. That may be true, but most employers do not follow these procedures, plus a return-to-duty test is usually scheduled to a certain degree.

BOTTOM LINE: Direct observation testing, to include raising shirt and lowering pants/skirt is here to stay. An employer and/or collection site must conduct these under certain criteria spelled out in the regulations. Mandatory DO collections for return-to-duty and follow-up testing is suspended until November 1, 2008 (Note: employers currently have the option to require this type of collection.) As an employer, you have the opportunity to make comments to the DOT docket on this issue (htt;://www.regulations.gov The Docket number is OST-2003-15245). Your comments are always important.

Stay tuned to this publication; as soon as DOT makes a determination related to mandating DO collections for return-to-duty and follow-up, we will publish the information in this Newsletter.

What are an employer’s responsibilities...

...when an applicant admits to testing positive on or to refusing to take a pre-employment test within the past two years?

The Department of Transportation (DOT) drug and alcohol testing rule (49 CF Part 40) specifically spells out in Section 40.25 what an employer has to do to check an applicant’s prior alcohol and drug testing history with previous employers for whom the individual performed safety-sensitive functions during the previous two years.

Some employers do not realize that paragraph (j) of that section explicitly directs the employer to “ask the employee (i.e., applicant) whether he or she has tested positive, or refused to test, on any pre-employment drug or alcohol test administered by an employer to which the employee (applicant) applied for, but did not obtain, safety-sensitive transportation work covered by DOT agency drug and alcohol testing rules during the past two years.” What this means is that an employer or its service agent (Third Party Administrator (TPA)) must ask this question as part of the hiring process for DOT safety-sensitive positions and this needs to be documented in a manner that can satisfy an auditor.

Getting back to the original question, what is the employer to do when an applicant admits to testing positive or refusing to take a pre-employment test? Obviously, the individual did not get hired and as an employer, you need to now determine if the applicant followed all the procedures spelled out in the Federal regulations and complied with the return-to-duty requirements – that is provided you still want to hire that individual. This means that you must obtain documentation that the applicant went to a Substance Abuse Professional (SAP) for an initial evaluation, followed all the recommendations of the SAP for education and/or treatment, obtained a follow-up evaluation from the SAP, and complied with the SAP’s recommended follow-up tests.

If an applicant admits to testing positive or refusing to test on a previous pre-employment test:
This procedure looks formidable so let’s break it down to a more practical process. Probably in the majority of cases, if an applicant admits to testing positive or refusing to test on a previous pre-employment test, he/she was not hired and probably did not go to see a SAP. In that case, you may not use that individual in a safety-sensitive position until he/she goes for the initial SAP evaluation, follows the recommended program, and has a follow-up evaluation that indicates the individual has progressed to the extent that he/she can return to safety-sensitive duty. As an employer, if you want to hire this individual you are not required to pay for the SAP evaluations and education/treatment, although you may do so if it is consistent with your policy.

Verifying a that an applicant saw a SAP
Now lets suppose the applicant tells you that he/she did see a SAP and followed a program and is now ready to return to safety-sensitive duties. If you want to hire this individual you must obtain documentation of this return-to-duty process. The applicant may have documents from the SAP indicating the progression of evaluation and treatment and recommended follow-up. However, since documents can be compromised, it is always a good idea to contact the SAP and verify this information. In some cases, you may want to receive copies of these documents directly from the SAP, especially if the applicant does not have them, but is willing to have the SAP provide them to you.

If you want to hire the Applicant
We are now at the final step. As an employer, you want to hire the applicant and you have all the relevant SAP documents. In all cases, the SAP must recommend a minimum of six drug or alcohol or both tests within 12 months following return-to-duty. In most likelihood these have not been done since the applicant has not been in a safety-sensitive position. These will have to be done by you as the new employer and that is in addition to enrolling the individual into your random testing program. One final step; there is a requirement that before this individual can go back to safety-sensitive functions, he/she must have a “return-to-duty” drug and alcohol test which is negative. In most cases, DOT agency regulators have permitted this test to serve two functions and be combined into one test, i.e., as a pre-employment test and as a return-to-duty test – just make sure you document this in some manner.

Important Issues for Employers:

The Federal Motor Carrier Safety Administration’s (FMCSA) rule (49 CFR Part 391) requires information from previous employers be obtained for three prior years. So, although Part 40 requests two years of alcohol and drug history from prior employers, in reality for employers who come under the authority of FMCSA this translates to three years of prior information.

As an employer if you have someone who refuses or has a positive drug or alcohol pre-employment test, you are obligated to provide that individual with several names, addresses, and telephone numbers of SAPs, even if you do not hire that individual. This information may be provided by you or your MRO or TPA and neither you nor your service agents may charge the applicant for this information.

If the applicant tells you that he/she refused or tested positive on a pre-employment test, but no documentation exists that the applicant successfully completed the return-to-duty process, a current return-to-duty process must occur before the applicant can again perform safety-sensitive functions.

If the applicant admits to a violation of the drug and alcohol testing rules, has completed all the return-to-duty procedures and is now in the follow-up stage and employed in a safety-sensitive position by another employer, and you hire this individual, you will be responsible to “finish” the follow-up testing. What this means is that the SAP may have directed that the applicant undergo 10 follow-up drug tests within the first year after returning to safety-sensitive duty and the applicant’s current employer has completed six of these tests. If you hire this individual you will have to complete the other four follow-up tests that were required as part of the SAP’s follow-up plan.

Impact on Employers of New DOT Rule Regarding Specimen Validity Testing

What exactly is SVT and why is it so important for DOT to make it mandatory? SVT is a series of procedures that drug testing laboratories are directed by the Department of Health and Human Services (DHHS) to conduct on all urine specimens to determine if the specimen has been adulterated or substituted and to determine if it is truly a specimen that could be produced naturally by an individual. Most laboratories were conducting some variation of SVT prior to this, but the new rule will now make it mandatory that every drug testing laboratory follow the DHHS Mandatory Guidelines for performing SVT on urine specimens collected under DOT requirements.

Over the years, there has also been an increase in products designed to adulterate specimens and their use has increased as individuals attempt to mask their use of illegal drugs. There are also various prosthetic devices on the market that store clean urine at body temperature and permit individuals to provide a urine specimen under direct observation without detection that the specimen is not actually emerging from the individual’s body.

Given these factors, DOT determined that provision of less privacy during directly observed collections would guard against individuals using these prosthetic devices to circumvent the collection process. To that extent, DOT directed that during a directly observed collection, the individual will be asked to raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist and to lower clothing and underpants to show that there are no prosthetic devices hidden under the clothing. It is also good to remember that a directly observed collection only happens when there is reason to suspect that the individual may have tampered with the specimen or because the individual had a previous non-negative result.

You may be asking yourself what does this have to do with an employer – or even with the Designated Employer Representative (DER)? You have to remember that the DOT program is one of deterrence rather then detection. Individuals need to be aware of the fact that under the new rule, all directly observed collections will require the individual to show the observer/collector that there are no prosthetic devices to interfere with the collection. Additionally, the requirement to conduct a directly observed collection is now mandatory for all return-to-duty and follow-up tests (prior to the new rule, it was optional based on employer’s policies). Knowledge that this requirement exists may prevent some individuals from using illegal drugs since one avenue of “cheating” on the test will no longer be available.

This means that as an employer or DER, you need to ensure that your safety-sensitive employees are aware of these changes. You do not want to have an individual go for a collection and be told that they have to partially disrobe. Not knowing that this is now a Federal requirement, some individuals may refuse to partially disrobe for the collector, which would be considered a refusal to test. Preparation and assurance that this is a legitimate requirement will go a long way to temper the unease that some individuals may have in regards to this new collection procedure.

New Refusal to Test Classification
By the way, when discovered, use of a prosthetic device will now be considered a refusal to test; so will refusal to wash hands and admission to the MRO of adulteration or substitution of the specimen.

The rule also modified some of the procedures and reports related to invalid results. These are defined as a “result reported by a laboratory for a urine specimen that contains an unidentified adulterant, contains an unidentified interfering substance, has an abnormal physical characteristic, or has an endogenous substance at an abnormal concentration that prevents the laboratory from completing testing or obtaining a valid drug test result.”

Here is something to remember:

If the first test is an invalid result and the second collection is also invalid for the same reason, the test will be cancelled. If there is a requirement for a negative, i.e., pre-employment or return-to-duty, the rule now requires a medical evaluation to determine if there is any evidence of illegal drug use.

If the second test is an invalid result for a different reason from the first test, the MRO will direct a third test (without discussing this with the individual). And yes, you as the employer will have to pay for all three tests. The rules are written to provide a balance between unreasonable requirements versus concern for public safety, and this is the best that DOT could do at the present time.

There is another change that the employer needs to be aware of: if the individual admits to the MRO to drug use during a verification interview related to an invalid result, the MRO will notify the DER, who then must take action under the Agency rules; in the highway industry, this is related to actual knowledge.

Another change that you and your DER need to be aware of is that if there are multiple collections for the same event (e.g., first specimen’s temperature is out of range, requiring a second collection under direct observation) and the first specimen is reported at negative, the MRO is now directed to “hold” this report until the results of the second specimen are reported by the laboratory. This was done to prevent employers from placing individuals into safety-sensitive duties based on the first negative and then subsequently receiving a positive result for the second directly observed collection. Of course, if the first specimen in non-negative (positive) the MRO will report this to the employer immediately.

An added item to remember, both for your policy updates and to inform your employees, is that there is no authorization for testing of a split specimen for a sample that has been reported as invalid. That’s pretty simple and easy to interpret.

And finally, DOT did not change the employer’s option related to negative results that are also dilute. As an employer you still have the option of requiring a re-collection (but not under direct observation) and the test result of record would be the result of the second test.

All of this sounds a lot more complicated than it is; however, the bottom line is – just follow the rules!

Note from previous Federal Corner: Last month the discussion centered on requirements directing employers, MROs, and Breath Alcohol Technicians to report refusals and positive results to several State licensing authorities.

As of May 2008, South Carolina initiated legislation to require similar reporting. As a recap, the following States now require some form of reporting: Arkansas, California, Oregon, North Carolina, South Carolina, New Mexico, Texas, and Washington.