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.

Are You a Grinch Employer?

DRUG/ALCOHOL TESTING AND THE HOLIDAY SEASON;
Are you going to be a “Grinch” employer?

Note: Although this is not a specific Federal issue, the following applies to both Federal and non-Federal programs.

Yes, the year is coming to a close. Time to close the books, estimate the damage/profit for this year, and maybe end the year with a couple of company parties to keep employees happy – instead of giving bonuses. Drug or alcohol test anybody at this time? Why? The year is almost over, you have met your random testing quota, and besides, who would be doing drugs during Christmas?

Well, you have to remember the purpose for having drug/alcohol testing programs – deterrence! Yes – unexpected, unannounced testing helps some of your employees to abstain from using drugs and from inappropriate use of alcohol. Unfortunately, the Holiday season is one where there are a lot of different pressures on many individuals. It is a time when some people get depressed (for a number of different reasons), some get more stressed out with the increased pace, shopping, family issues, etc., and others just get carried away with year-end celebrations.

The end result is that many people “self-medicate” themselves with prescription medication, illegal drugs, and/or increased alcohol use. Regrettably, this behavior is frequently accepted by co-workers and employers; the fact that an employee is a little off kilter, more abrasive, louder than usual, angrier are all attributed to the stress of the Holidays. Rarely, are these behaviors seen as something to get concerned about.

By the way, many employers stop all drug and alcohol testing two to three weeks before the end of the year. Frequently, this is common knowledge at the company and really a “get out of jail” card for those who want to celebrate a little harder. Also, many employers feel that since they have met their minimum random testing quota, this is all the testing they can or should do. This is a misconception. An employer can always test more than the minimum and some employers will tell their employees specifically that testing will be conducted through the Holidays – just in case some of them are planning on stepping over the line.

If you have a 24/7 operation nothing prevents you from testing even on Christmas Day. It may cost you just a little more to conduct a test, but it may potentially save you a lot more money in the long run by possibly preventing an accident that could be attributed to drug or alcohol impairment. Will some of your employees call you a Grinch? Maybe, but consider what you may have accomplished: you may have saved an employee’s life or that of someone else on the road and at the same time kept your company from facing devastating litigation.

Take a look at your random testing schedule. When was the last test conducted? What kind of testing did you conduct during this same time frame last year? Did you ever test during the Holidays since the start of the program? All of these questions should help you determine if and when you should conduct drug/alcohol tests during the Holiday season.

A more problematic issue is that of office parties and the approval or permissive use of alcohol. Many employers now have strict policies about office parties and availability of alcohol. They have learned that in most states courts will hold them accountable if an employee leaves an office party inebriated and subsequently has an accident while driving – or even falling down a staircase. This is frequently true even if the company-sponsored event is held off company premises. Obviously, if a company office party will include alcohol, make sure that there are non-alcoholic beverages available, that whoever is serving drinks pays attention to how much someone is ingesting (similar to bartenders), have food available, and of course make provisions to drive or get a taxi for anyone who is unable to drive. For sure, you do not want someone who is scheduled to start a safety-sensitive function to stop by at the party and have a drink before they go on the job.

BOTTOM LINE: You should spell out your specific concerns and requirements so that everyone knows about them – either as a Holiday reminder of company policy or maybe as part of the announcement about the party. Reaffirm that drug use during this time is not condoned and emphasize that the company may conduct drug/alcohol testing during this time frame. If you do not permit alcohol use at company parties, make sure you state that in no uncertain terms. Common sense is a key ingredient here, but you have to use it – and enjoy the Holidays!

An Employer's Right to Hire and Fire

Is the Federal government infringing on an employer’s rights to hire or fire; can I hire anyone I want; do I have to keep a drug user employed and pay for treatment?

These are still some of the questions that periodically are asked by employers, many of whom have had drug and alcohol programs in place for some time, but have not had to deal with positive test results or with workers seeking help with their addiction.

To add to this confusion, on September 8, 2008, the U.S. Department of Labor, Mine Safety and Health Administration (MSHA) published in the Federal Register a proposed drug and alcohol rule for the mining industry. Although this rule stated that drug and alcohol testing procedures would generally follow those of the DOT rule (49 CFR Part 40), there were some differences in a number of policy requirements. One of these was that when a miner had a violation (positive test, refusal, etc.) and subsequently successfully completed treatment, the employer was obligated to return the individual to employment. In other words, the employer would have to return the miner to safety-sensitive work after the first violation of the rule.

This proposal, and please note – this is just a proposal at this point, triggered many comments from mine operators expressing concerns that this was an infringement on their company authority related to personnel action and hire/fire authority. Many mining operations also employ drivers who come under the authority of the Federal Motor Carrier Safety Administration (FMCSA) and some are wondering if this proposal will somehow overflow into FMCSA regulations.

At this point, the only concrete regulatory requirement addressing drug and alcohol violations and employer personnel actions – other than for Federal agencies – is the DOT Part 40 rule. Most of what is required from the employer is spelled out in Subpart B-Employer Responsibilities. Granted, the rule is complex and sometimes hard to understand – even though it was one of the first Federal rules written in “plain English”. There are a lot of requirements that an employer has to meet and these often seem to be stringent and confining on what actions employers can perform.

Believe it or not, nowhere in the rule is there any requirement that has a direct impact on the employer’s decision to hire, promote, fire, etc. Lets look at the whole employment process – within the transportation industry - and see what is really being asked of the employer. A critical issue to remember is that all of these regulatory requirements affect only those individuals who are applying for or are working in safety-sensitive (SS) positions.

In the pre-employment process, DOT requires a negative drug test for applicants who will be performing SS functions. Nowhere in the rule text does it say you may not hire the individual; it states that you may not use that individual in a SS position until there is a negative pre-employment test result.. An applicant is required to sign a release form to permit you to obtain drug and alcohol testing information from previous employers. If the applicant refuses to sign you can still hire that individual, but you cannot use that person in a SS position.

When an employee who is working for you violates the rules, you are required to remove the individual from SS duties. Again, there is no rule requirement that this individual be terminated from your employment. Another frequently asked question is related to employer responsibility to provide treatment following a violation. Section 40.289 is clear: “As an employer, you are not required to provide a SAP evaluation or any subsequent recommended education or treatment for an employee who has violated a DOT drug and alcohol regulation.”

Generally, there is a second part to that question and that is who pays for SAP evaluations. Again, Part 40 is clear on that; Section 40.289 continues with: “Payment for SAP evaluations and services is left for employers and employees to decide and may be governed by existing management-labor agreements and health care benefits.”

And finally, the question of returning someone who violated the rule back to employment. DOT does not require an employer to return that individual to employment or to SS duties. It is entirely an employer’s option based on company policy. In fact, if an employee does not show progress in treatment, DOT provides the employer an open-ended option in Section 40.301: “As the employer, following a SAP report that the employee has not demonstrated successful compliance, you may take personnel action consistent with your policy and/or labor-management agreements.”

Bottom Line: All personnel actions (hire, fire, suspension, promotion, etc.) are at the employer’s option. DOT does not mandate any of these functions. True, they have established criteria for SS positions in the transportation industry based on safety and protection of the traveling public. These criteria only control who and when an individual can perform these SS functions – all personnel actions are in your hands.