DOT Drug and Alcohol Testing - Past, Present and Future

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.

Medical Marijuana and the DOT

U.S. Department of Justice Guidance on Medical Marijuana and Its Impact on DOT Drug Testing

On October 19, 2009, the U.S. Department of Justice (DOJ), Office of the Deputy Attorney General, issued a memorandum providing guidance to prosecutors in states that have authorized the use of medical marijuana. Because laws vary in their substantive provisions and in the extent of state regulatory oversight, both among the enacting states and among local jurisdictions within those states, DOJ felt that rather than develop different guidelines for every possible variant of state and local law, uniform guidance to federal investigators and prosecutors in these states would provide consistent and uniform enforcement. To a large degree, the memorandum was intended to address the shortfall of resource allocation in the field.

Part of the memorandum states, “The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department's efforts against narcotics and dangerous drugs, and the Department's investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.”

This, of course, generated a myriad of questions from transportation employers, employees, and the general public. The core of the questions was does this guidance in any way now “authorize” or sanction the use of medical marijuana and how are employers to treat employees in those states that have legalized medical marijuana?

The DOT Office of Drug and Alcohol Policy and Compliance in a recent statement indicated that they have also received several inquiries about whether the DOJ advice to Federal prosecutors regarding pursuing criminal cases will have an impact upon the Department of Transportation’s longstanding regulation about the use of marijuana by safety-sensitive transportation employees – pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire-armed security personnel, ship captains, and pipeline emergency response personnel, among others.

DOT made it clear that the DOJ guidelines will have no bearing on the Department of Transportation’s regulated drug testing program. DOT will not change their regulated drug-testing program based upon these guidelines to Federal prosecutors. The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.

That section states:
§ 40.151 What are MROs prohibited from doing as part of the verification process?
As an MRO, you are prohibited from doing the following as part of the verification process:

(e) You must not verify a test negative based on information that a physician recommended that the employee use a drug listed in Schedule I of the Controlled Substances Act. (e.g., under a state law that purports to authorize such recommendations, such as the “medical marijuana” laws that some states have adopted.)

Therefore, Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use “medical marijuana.” DOT also noted that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.

So much for the legal parameters surrounding this issue. What is the average employer to do when he/she is challenged by an employee that a drug positive result should be overturned because the employee was told by a physician to us marijuana and that even the Department of Justice is no longer considering it a “crime”. Well, for starters, you should try to nip this issue in the bud. Ensure that your drug and alcohol policy (if it does not already state this) specifically indicate that use of “medical marijuana” is not an acceptable medical explanation for a drug positive result. You may even want to state that even if the employee has “not been charged” with the crime – use of marijuana – that still does not supercede the DOT position. Any use of marijuana, even if it is unintentional – someone slipped me marijuana-laced brownies – is not an acceptable medical explanation.

Going back to the DOJ memorandum, we need to look at the following: “Indeed, this memorandum does not alter in any way the Department's authority to enforce federal law, including laws prohibiting the manufacture, production, distribution, possession, or use of marijuana on federal property. This guidance regarding resource allocation does not "legalize" marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter. Nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.”

Bottom line is that the DOJ memorandum has absolutely no impact on the DOT drug and alcohol program nor does it impact on an employer’s enforcement of the current drug testing requirements.

DOT MAKES A FINAL, FINAL, FINAL DECISION ON DIRECT OBSERVATION COLLECTIONS

Those of you who have been reading this column over the last few months are probably saying enough is enough, and rightfully so. It has taken DOT a year to resolve a simple aspect of their rule – mandatory direct observation (DO) urine specimen collection for return-to-duty (RTD) and follow-up (FU) drug testing. As the saying goes, the wheels of government grind slowly.

So, what is the final, final answer? Believe it or not, confusion still reigns. Although DOT has to be complimented on sticking to their guns, the courts dragged this issue out ad infinitum. So, here is the final, final answer: as of August 31, 2009, all RTD and FU urine specimen collections must be conducted using DO procedures; no ands, ifs, or buts.

Now you are asking yourself, so what’s the big deal? Well, not everyone gets the word and not everyone interprets it the same way. Some individuals and organizations are interpreting this final rule guidance from DOT as meaning that the requirement to lower pants/skirt and raise shirt/blouse as affecting only RTD and FU collections. Wrong! First, the whole legal issue for a year has been about making DO mandatory for RTD and FU. That’s it!

The requirement to drop pant/skirt and raise shirt/blouse for DO collections has been in effect for all DO collections since August 25, 2008 – to include DRT and FU if the employer directed it. So, the bottom line for this item is: ALL DO COLLECTIONS REQUIRED BY THE RULES ARE MANDATORY AND REQUIRE DROPPING PANTS/SKIRT AND RAISING SHIRT/BLOUSE. In other words, as an employer, you now have no discretion to determine if a DO collection should or should not be conducted. At this point, these are the triggering events that cause a DO collection – and you must do that – no options:

· The employee attempts to tamper with his or her specimen at the collection site.
-- The specimen temperature is outside the acceptable range;
-- The specimen shows signs of tampering ~ unusual color / odor / characteristic; or
-- The collector finds an item in the employee’s pockets or wallet, which appears to be brought into the site to contaminate a specimen; or
-- The collector notes conduct suggesting tampering.

● The Medical Review Officer (MRO) orders the direct observation because:
-- The employee has no legitimate medical reason for certain atypical laboratory results; or
-- The employee’s positive or refusal [adulterated / substituted] test result had to be cancelled because the split specimen test could not be performed (for example, the split was not collected).

● The test is a Return-to-Duty or a Follow-Up test.

What else is happening? Well, there are collection sites that apparently still have not gotten the word and conduct RTD and FU collections under the old procedures. Guess what? If that happens, you as the employer will be out some money! Why? Because § 40.67(n) reads: As the collector, when you learn that a directly observed collection should have been collected but was not, you must inform the employer that it must direct the employee to have an immediate recollection under direct observation.

This statement is a little confusing because it lays the responsibility on the collector, but that’s because § 40.67 addresses the whole direct observation collection process – and that mostly deals with the collector. In essence, as an employer, if you find out that a DO collection was to take place and did not, your responsibility is to send the employee for another test and ensure that it is done under DO conditions. Here’s the catch: you will have to pay for another test, because the first one (not observed) does not count.

If you have any employees who will be returning to safety-sensitive duty or are currently in a FU program, it is to your benefit to do two things. One, inform these employees that the rules have changed – when they take an RTD or FU test, it will be observed (and don’t forget to tell them that they will have to drop their pants/skirt and lift their shirt/blouse – if they don’t know this, they will absolutely go bonkers and may refuse to take the test). Secondly, when an RTD or FU collection is to take place, make the effort to call the collection site and ensure that they know what to do and that they have available a same gendered individual to conduct the collection. If need be, as an employer, you may have to send a management person with the employee to be the observer. It would also not hurt to contact your consortium/third party administrator (if you have one) to make sure that they are also on the same sheet of music.

Bottom line: All DO collections involve the employee having to drop his/her pants/skirt to mid-thigh, raise shirt/blouse up to the navel, and turn around completely once. The observer must be of the same gender. The employer no longer has the option to determine if a DO collection is to be conducted; if it’s required by the rules, it must be done. And finally, all RTD and FU collections must be conducted using DO procedures. If the required DO is not accomplished, a second re-collection under DO must be done. So, lets shelf this DO issue and concentrate on operating a viable and cost-effective drug and alcohol testing program.