July 31, 2001

Changes Employers Need to Know Regarding DOT's Revised Workplace Drug and Alcohol Testing Rule

By Peter H. Wald , MD, MPH
Board-Certified, Occupational Medicine, Medical Toxicology, Internal Medicine
Principal, WorkCare

More than 8 million private and public sector employees are covered by the U.S. Department of Transportation's (DOT) regulations regarding drug and alcohol testing. Employers regulated by these agencies should be aware of the DOT revised rule governing drug and alcohol testing. Most of the revisions to this law go into effect on August 1, 2001 -although some provisions went into effect on January 18, 2001 . This article discusses the key provisions of the new law that are applicable to employers.

Background

The DOT is responsible for implementing and enforcing regulations that cover the following industries that are represented by the corresponding DOT agency:

Aviation--Federal Aviation Administration
Motor Carriers/Highways-Federal Highway Administration
Mass Transit-Federal Transit Administration
Railroads-Federal Railroad Administration
Maritime-U.S. Coast Guard
Pipeline-Research and Special Programs Administration

The majority of U.S. workers covered by DOT regulations are truck and bus drivers. The definition of who is covered under the Federal Highway Administration (FHA) is an individual with a commercial driver's license (CDL), who operates a commercial vehicle as defined by this agency. Commercial motor vehicle means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle-

Has a gross combination weight rating of 11,794 or more kilograms (26,001 or more pounds) inclusive of a towed unite with a gross vehicle weight rating of more than 4.536 kilograms (10,000 pounds); or
Has a gross vehicle weight rating of 11,794 or more kilograms (26,001 or more pounds); or
Is designed to transport 16 or more passengers, including the driver; or
Is of any size and is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act and which require the motor vehicle to be placarded under the Hazardous Material Regulations.

Key Provisions of Revised DOT Drug and Alcohol Testing Procedures (Known as DOT regulation 49 CFR Part 40) Affecting Employers

Employee Stand-Down

This area of the revised law was the most controversial. The main issue regarding this law is whether an employee should be removed from safety-sensitive duties, known as a stand-down, before a Medical Review Officer (MRO) has verified laboratory Positive test results. The DOT has long been concerned that the innocence of an individual should be maintained prior to the process that authenticates illegal use of a prohibited substance.

Although a number of organizations and individuals appealed to the DOT to allow employers to "stand-down" employees from the time the laboratory notifies the MRO of a Positive test, the DOT continues to prohibit this practice-unless employers apply for a waiver that permits the stand-down. This waiver provision is a new component of the rule.

The request for waiver must be made to the appropriate operating administrations (FAA, FTA, etc.) and must be obtained prior to initiating a stand-down. The agency will grant waivers for compelling reasons. Once the MRO has verified a Positive, Adulterated or Substituted result, employers are advised to not delay removing employees from safety-sensitive work.

Alcohol Testing

There are limited changes in the alcohol testing requirements for employers. Employers are required to removed employees working in safety-sensitive jobs whose alcohol test results are greater than 0.02. A positive test is defined as results greater than or equal to 0.04. A new Breath Testing Form with minor changes is required as of August, 1, 2001.

Return-to-Work Process

The rule includes consequences for employees with Positive tests or who have refused to test. The return-to-duty process is mandatory following any violation of the rules, including a Positive result on a pre-employment test. Employees who have tested Positive may not return to a safety-sensitive position until they have been evaluated and undergone treatment outlined by substance abuse professionals ( SAPs ). If an employee does not complete this assessment or treatment with the current employer, he or she must complete this requirement before being hired for any safety-sensitive position by any other employer who is governed by DOT. See specific details regarding a SAP's role in evaluating personnel who have Positive test results or have refused to test.

Definition of Test Results

Employers should be aware of laboratory reporting language to better understand test results and apply appropriate rules. In addition to drug and alcohol Positive and Negative test results, Negative-Dilute is also used to describe a result when no drug was found in the specimen. The rules have changed in the actions employers may take when a Negative-Dilute result is reported. Employers can accept the test result as negative or they can order a re-collection-not under direct observation. If the employer's policy is to retest, the employer must accept the retest as the only test even if it's a Negative-Dilute. Employers can retest all Negative-Dilutes Pre-Employment test results, but not retest all Negative-Dilute Random or other test types.

Pre-Employment Screening

Employers are required to inquiry about an applicant's prior employers (previous two years) regarding Positive tests, Refusals to Test and Alcohol Tests of greater or equal to 0.04, as well as other DOT alcohol and drug rules, such as Return to Duty and Follow-Up Testing procedures. The employer's application must include a question about any failed or refused DOT-mandated Pre-employment tests taken in the previous two years.

Additional Significant Revisions to 49 CFR Part 40

Validity Testing Validity testing is a process used to deter and detect attempts to change (adulterate) a urine sample to achieve a negative result.

The new rule, effective January 18, 2001 , requires the medical review officer to interview those donors whose specimens are reported as substituted, adulterated or invalid.

Validity testing for all specimens will become mandatory, beginning August 1, 2001 , if amendments to the Department of Health and Human Service Mandatory Guidelines are issued at that time.

PIE: The Public Interest Exclusion

This change went into effect on January 18, 2001 and was designed to protect the public from the effects of serious noncompliance by service agents. Prior to this change, compliance was completely the responsibility of the employer. There was no rule to hold service agents, such as third party administrators, MROs or other agencies involved in the testing process, accountable for their actions. The revised rule allows the government to issue a Public Interest Exclusion (PIE), which prevents a service agent who has been found guilty of an egregious breach of the regulatory process from participating in DOT-required drug and alcohol testing for a period of time.

For more information on these rules, visit the DOT web site at:

http://www.dot.gov/ost/dapc/49cfr40highlights.htm
Highlights of rules

http://www.dot.gov/ost/dapc/main/CFRintro.htm
Full and final rule