Highlights of new department of transportation rule on workplace drug and alcohol testing procedures (49 CFR part 40)

The Department of Transportation has issued its revised rule governing drug and alcohol testing procedures (49 CFR Part 40). The new rule is based on our thorough review of the comments of over 400 interested people and organizations.

The rule was published in the Federal Register on Tuesday, December 19, 2000. It is on the DOT web site at www.dot.gov/ under "DOT Links" button.

Most provisions of the rule go into effect August1, 2001, but some provisions - additional safeguards for employees in validity testing and a service agent accountability mechanism - will go into effect, on January 18, 2001.

The following are some of the key provisions of the new rule:

Validity Testing. Medical Review officer (MRO) review of substitution and adulteration test results and split specimen testing for these results will be required beginning January 18, 2001. Validity testing will become mandatory August 1, 2001, for all specimens, based on amendments to the department of Health and Human Services (HHS) Mandatory Guidelines that are expected to be issued by that time.

Stand-Down. Temporarily removing employees from safety-sensitive duties after a confirmed positive, adulteration, or substituted laboratory test result, but before the MRO has verified the result (stand-down) is generally prohibited. However, employers can request a waiver permitting stand-down. Waiver requests must include a written stand-down policy providing, among other things, for -confidentiality of information about the test, paying workers during the stand-down period, and expunging records of the confirmed test result if the test is verified negative or cancelled.

Role of Consortia/Third-Party Administrators (C/TPAs). With some exceptions (e.g. transmission of medical information from MRO's to employers, transmission of substance abuse professional (SAP) reports to employers), employers may choose to have drug test results and other information transmitted to them via a C/TPA or directly from the MRO or other person who generates the information. As service agents, C/TPAs are not "employers" for purposes of the rule and cannot play the "designated employer representative" role for employers.

Public Interest Exclusions (PIE). The final rule includes a public interest exclusion mechanism designed to protect the public from the effects of serious noncompliance by service agents. A service agent who engaged in serious misconduct could be excluded from participating in DOT -required drug and alcohol testing for a period of time. In response to comments, the final rule's PIE provision lists examples of noncompliance that could subject a service agent toa PIE proceeding and provides extensive administration due process to ensure fairness. The PIE provision goes into effect January 18, 2001.

Training. A well-trained work force is vital to an accurate and fair drug and alcohol testing program. For this reason, Part 40 includes enhanced training requirements for collectors, breath alcohol technicians (BATs), screening test technicians (STTs), MROs, and substance abuse professionals (SAPs). This includes initial ("qualification:) training, refresher training every five years (for collectors, BATs, and STTs), continuing education (for MROs and SAPs), and "error correction training" (for collectors, STTs, and BATs) following a mistake that results in a test being cancelled.

SAPs and the Return-to-Duty Process. All positive tests and refusals to test will have a consequence. SAPs must require education and/or treatment in all such cases. The return-to-duty process is mandatory following any violation of the rules, including a positive on a pre-employment test. The number of follow-up test remains the same as under current rules: a minimum of 6 tests in the first 12 months following return to duty. Employers may, but are not required, to monitor aftercare for employees who have returned to work following a violation. Return-to-duty process and follow-up testing requirements continue to apply even if workers change jobs or have a break in service.

Collection Process. All collections - including those under RSPA and USCG rules - will be split specimen collections. A collection under direct observation will be required following a situation in which a test is cancelled because the split specimen was unavailable, but not following a negative dilute test result. Otherwise, direct observation testing is the same as under current rule. An employee's decision not to drink fluids in a "shy bladder" situation will not be regarded as a refusal to test. Collectors will not require employees to remove boots, but will require employees to display the contents of their pockets.

Other Issues. Employers will be required to obtain, from an applicant's previous employers over the past two years, drug and alcohol testing information. The new rule takes steps to authorize greater use of electronic means of transmitting and storing data. The new rule mandates use of new, clearer drug and alcohol testing forms, as well as a standard urine collection kit. "Blanket releases" for testing information continue to be prohibited.

Conforming Rulemaking. All six DOT agencies involved in the drug and alcohol testing program will issue proposed rules early in calendar year 2001 to modify their rules to be consistent with the new Part 40. More information will be provided as available on the subject of modal conforming rules.