DOT DOES IT AGAIN – ANOTHER DRUG/ALCOHOL FINAL RULE

On Monday, August 16, 20010, the Department of Transportation (DOT) published a Final Rule (FR) to its Procedures for Transportation Workplace Drug and Alcohol Testing Programs. The purpose of this FR is to provide consistency between the DOT regulation and the Department of Health and Human Services (HHS) Mandatory Guidelines for Federal Workplace Drug Testing Programs.

Some employers may wonder what these two regulations from different agencies have to do with the DOT requirements for drug and alcohol testing in the transpiration industry. The simple answer is that the DOT is required by the Omnibus Transportation Employee Testing Act of 1991 to follow the HHS scientific requirements for drug testing procedures and the type of illegal drugs that are tested. For those who are interested, the preamble in the FR provides a clear and lengthy historical background related to this requirement.

As a result of this mandate, the DOT is required to follow most of the HHS laboratory testing procedures, use HHS certified drug testing laboratories, and test for those drugs that are authorized by HHS. There are procedures, such as collection of urine specimens or medical review officer (MRO) reporting, that are not tied to HHS requirements and in those areas, the DOT sometimes varies in its procedures from those required by HHS.

Bottom line question – what is the impact on the transportation employer who is under DOT regulatory authority? Again, the simple answer is not much, but there are a few items that will have impact on the testing process and employers must be aware of these.

The first major issue that faced the DOT was the HHS procedure permitting the use of Instrumented Initial Testing Facilities (IITF) to conduct initial drug testing. What this means is that HHS would certify a facility that would perform only the initial screening testing of urine samples. If the initial screen was negative, a negative report would be sent to the employer. If the initial screen was non-negative, the specimen would have to be sent to a “full-fledged” laboratory for confirmation testing.

The DOT’s interpretation of the Omnibus Act was that the Act precluded the DOT from using IITFs since it requires “that all laboratories involved in the controlled substances testing of any individual under this section shall have the capability and facility, at such laboratory, of performing screening and confirmation tests.” Since IITFs do not have any confirmation capabilities, the DOT’s position is that IITFs may not be used in the DOT drug testing program. This means that employers must be vigilant in their dealings with laboratories or third parties that provide drug testing services and ensure that specimens are not sent to IITFs.

The second major change is related to the DOT including the HHS expanded amphetamine testing. Initial and confirmatory testing will be conducted for Methylenedioxymethamphetamine (MDMA) – also known as Ecstasy, and confirmatory testing for Methylenedioxyamphetamine (MDA) and Mehylenedioxyethylamphetamine (MDEA). The impact of this change on employers may be that those employers who specifically identify in their policy the type of drugs for which they test, may now need to go back and add these analytes to that list and, of course, ensure that this information is provided to all their safety-sensitive employees.

Again, following the changed HHS requirements, the DOT is also lowering the cutoff testing levels for cocaine and amphetamines. The initial test cutoffs for cocaine metabolites would go from 300 to 150 ng/mL, while confirmation test cutoffs would go from 150 to 100 ng/mL. For amphetamines, the initial cutoffs would go from 1,000 to 500 ng/mL, while confirmation tests for amphetamines and methamphetamines would go from 500 to 250 ng/mL.

Based on the change in cutoff levels, employers may experience an increase in the number of positive results reported to them, especially for cocaine. It probably would be beneficial to ensure that the lowering of the testing cutoffs is well publicized to those in safety-sensitive positions.

Under their new Mandatory Guidelines, HHS is directing laboratories to conduct testing for 6-Acetylmorphine (6-AM) on all initial tests on all specimens. 6-AM is a unique metabolite produced when a person uses heroin. Since all DOT drug testing is conducted in HHS-certified laboratories, all urine specimens collected under DOT authority will now be tested for 6-AM. The DOT is including this process in its FR to ensure that the transportation industry understands this change.

The FR also eliminated the requirement for each MRO to take 12 hours of continuing education every three years. Instead, each MRO will need to be re-qualified, including passing an examination given by an MRO training organization, every five years. And finally, for consistency, the DOT is harmonizing a number of definitions in its rule with definitions in the HHS Mandatory Guidelines and adding several new ones.

This Final Rule is effective October 1, 2010. A copy may be viewed on the DOT website at: www.dot.gov/ost/dapc.

TWO MORE QUESTIONS RAISED BY A FEW EMPLOYERS: INADVERTENTLY ADMINISTERED ALCOHOL TESTS AND WHAT IS THE STATUTE OF LIMITATIONS ON A POSITIVE TEST?

Many times, it’s the simple questions that prove the most troublesome to some employers. One of the old questions is raising its head again – what to do with an alcohol test that was administered to an employee who was not scheduled for an alcohol test. In many programs, selections for alcohol testing are combined or added to those selected for drug testing. Because of the difference in the annual rate for testing for drugs versus alcohol, a very small percentage of employees who are tested for drugs, are also tested for alcohol.

An employee goes for a drug test and the collection site inadvertently also administers an alcohol test. Of course, as is frequently the case, this alcohol test is positive. The employee claims that he/she was not supposed to have an alcohol test. The form provided by the employer indicated that only a drug test was scheduled. On top of all of this, some employees are very convincing in showing that they have a legitimate complaint and that the test should not be accepted.

The employer now is in a dilemma – cancel the test, make it a non-DOT test, ask for a second test, etc. The simple answer is to go back to the rule text and see what the regulation requires. Section 40.275 What is the effect of procedural problems that are not sufficient to cancel an alcohol test? – specifically addresses this issue. Paragraph (b) states: No person concerned with the testing process may declare a test cancelled based on a mistake in the process that does not have a significant adverse effect on the right of the employee to a fair and accurate test. For example, it is inconsistent with this part to cancel a test based on a minor administrative mistake (e.g., the omission of the employee's middle initial) or an error that does not affect employee protections under this part. Nor does the failure of an employee to sign in Step 4 of the ATF result in the cancellation of the test. Nor is a test to be cancelled on the basis of a claim by an employee that he or she was improperly selected for testing.

Although this is considered an error that is not sufficient to cancel an alcohol test result, the employer may, nevertheless, face enforcement action under DOT agency regulations.

The second question involves how far back in time does a violation have to be considered by an employer? As one employer asked, “What is the statute of limitations on a drug or alcohol positive result?”

The bad news is that there is no such thing as a statute of limitations on drug or alcohol positive test results. Where some confusion arises is the regulatory requirement to go back for three years to check on an applicant’s drug and alcohol testing history and on the fact that records of positive test results are kept by employers for only five years. Some employers and employees interpret these two regulatory requirements as meaning that test results outside of these two time frames do not have to be considered.

The following is an example of what sometimes happens. An applicant for Company A has a positive drug test on the pre-employment test. The applicant is not hired and either goes to work in a safety-sensitive job somewhere else or in a non-safety-sensitive job with another employer. The applicant does not go through the return-to-duty SAP process.

Seven years later, this same applicant comes back to Company A and applies for a safety-sensitive job. However, the company either still has a record of the previous pre-employment drug positive result or someone in personnel remembers what happened seven years ago. A more frequent occurrence is that the company’s Consortium/Third Party Administrator, who scheduled the pre-employment test seven years ago, still has this record and notifies the company that the applicant had a positive result at that time.

Given the above scenario, applicants and some employers are saying that since the positive test result was prior to the three-year record review and/or that there are no records at the company of the positive result, that the previous positive results can be ignored. Unfortunately, this is not true. There is no time limit on the requirement that following a drug or alcohol violation, an individual must complete a SAP evaluation and the return-to-duty process before being able to perform safety-sensitive duties. This responsibility not only rests on the employer’s shoulders, but also on the individual.

Once again, going back to the rule text, Section 40.285 When is a SAP evaluation required?- spells out the regulatory requirement in paragraph (a):

As an employee, when you have violated DOT drug and alcohol regulations, you cannot again perform any DOT safety-sensitive duties for any employer until and unless you complete the SAP evaluation, referral, and education/treatment process set forth in this subpart and in applicable DOT agency regulations. The first step in this process is a SAP evaluation.

SOME OLD QUESTIONS WITH THE SAME OLD ANSWERS

Recently, a couple of old questions have come up again and may warrant a response for the benefit of those employers who have not heard them before or who have forgotten the answers.

If an employee (driver) fails to show up at a collection site, who makes the determination that this is a refusal? Believe it or not, we got several different answers from employers. In this case, the first thing to do is see what the rule text actually states. Yes, the rules do provide answers in most cases.

Part 40.61(a) directs the collector to do the following: “ When a specific time for an employee's test has been scheduled, or the collection site is at the employee's work site, and the employee does not appear at the collection site at the scheduled time, contact the DER to determine the appropriate interval within which the DER has determined the employee is authorized to arrive. If the employee's arrival is delayed beyond that time, you must notify the DER that the employee has not reported for testing…”

So what is a refusal? Per 40.191(a)(1), a refusal is when employees: Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer. This includes the failure of an employee (including an owner-operator) to appear for a test when called by a C/TPA (see §40.61(a));

The confusion here lies in the interpretation of who actually makes the final decision that this is a refusal to test. It is obvious that the collector makes the call that a particular situation exists, i.e., the driver did not show up for testing or appeared several hours after the time designated by the DER. However, in most cases, it would be the DER who attempts to discover all the details of what actually happened. Was the driver notified of the requirement to go to the collection site, when was the notification issued, what extenuating circumstances occurred during this scenario, and what are company policies related to this subject.

Lets break down in more detail the process described above. The rules require the driver to proceed to the collection site immediately after notification. Part 382.305(l) states: Each employer shall require that each driver who is notified of selection for random alcohol and/or controlled substances testing proceeds to the test site immediately; provided, however, that if the driver is performing a safety-sensitive function, other than driving a commercial motor vehicle, at the time of notification, the
employer shall instead ensure that the driver ceases to perform the safety-sensitive function and proceeds to the testing site as soon as possible.

The issue here is, was the notification properly carried out and when did the driver actually leave to go to the collection site. Some employers actually tell a driver that he/she has to be at the collection site “that afternoon” or “before the day ends”. This generally gives the driver who is using drugs sufficient time to obtain substituted urine or an adulterant before coming to the collection site. It is also not the correct procedure that the employer should follow.

Presuming the notification was done correctly, the DER then has to determine why the driver did not show up or was late at the collection site. Was the driver given the correct address of the collection site? Yes, there have been situations where the DER was not aware that the company’s collection site had changed and sent the driver to the wrong place. Is this a refusal? Of course not. The driver complied with the proper instructions and it is not the driver’s fault that he/she was sent to the wrong collection site. Being late for the collection because the driver had to pick up the kids at school is not an appropriate reason for being late or not showing up at the collection site. Being in a car accident on the way to the collection site is a reasonable excuse, provided the DER can obtain documentation from a police report or other source that the driver was truly involved in an accident that prevented him/her from proceeding to the collection site.

And finally, what is the company policy related to this situation? Does it spell out specifically what a driver has to do once he/she is notified to proceed to a collection site? Does it clearly identify those situations that can be appropriate reasons for being late or not arriving at the collection site versus those that are not acceptable by the company? Remember, your company policy will be used to determine compliance during any legal or administrative proceedings.

Bottom line then, in most cases the DER will make the determination if a refusal to test exists when a driver is late or does not show up at the collection site. However, the DER has to apply this decision in a reasonable manner – it may well be challenged by an inspector during a safety audit. Also, if an employer obtains its services through a consortium/ third party administrator (C/TPA), this third party will generally try to provide guidance to the DER in these cases. The C/TPA is the one who arranges the specimen collections and knows if a test was conducted or not. They will generally contact the DER in the cases discussed above and provide guidance on how to proceed. DERs and companies should pay close attention to this, since most C/TPAs have experience in this area and their goal is to ensure that the employer operates the DOT drub and alcohol program according to the rules.

The second issue that has come up – again – is related to a driver returning to duty after a violation. If the driver has been out longer than 30 days, does the employer have to conduct a pre-employment test and a return-to-duty test?

Here is an interpretation from the Federal Motor Carrier Safety Administration on this issue (382.309): *Question 1: A driver has tested positive and completed the referral and evaluation process up to the point of being released by the SAP for a return-to-duty test. The driver no longer works for the employer where he/she tested positive. The driver applies for work with a new employer. Must the new employer conduct two separate controlled substances tests (one pre-employment and one return-to-duty), or will one test suffice for both purposes? Guidance: An individual, who has complied with the education/treatment process as required under 49 CFR Part 40, Subpart O, but has not submitted to a return-to-duty test, and is seeking employment with a new employer, a single test will suffice to meet the requirements of §382.301 and §382.309 only when the new employer would be required to conduct both tests on the same day. *Editor’s Note: This interpretation was issued after the interpretations were published in the Federal Register in April 1997.
So, yes, the employer could roll up both tests into one if both are to be conducted on the same day. This interpretation was written before the mandated direct observation testing for return-to-duty. However, Part 40 states that if a direct observation collection was to be conducted, but was not, the driver must be recalled for a direct observation collection. So, we would have to assume that this kind of test - even though it is a combined pre-employment and return-to-duty test - would be under direct observation.
Bottom line for all of the above is – document, document, and document.