AMENDMENTS TO THE DEPARTMENT OF TRANSPORTATION'S
WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS
(published December
2001)
The
Department of Transportation ("DOT") recently, published comprehensive revisions
to its drug and alcohol testing procedures and regulations at 49 CFR Part 40.
The revised Part 40 made numerous changes in the way drug and alcohol testing
would be conducted in the future. Although 49 CFR Part 40 was applicable to
all six DOT agencies, each agency still maintained their own similar, but not
identical, provisions as to how Part 40 was to be carried out. Therefore, on
April 9, 2001, the DOT issued additional amendments to Part 40 in order to
clarify the operating administrative rules, and to avoid duplication and inconsistency
among the agencies. The new final Part 40 revisions will go into effect on
August 1, 2001, the same date that the revised Part 40 takes place. A brief
highlight of these provisions follows.
Substance Abuse Professionals and Return-to-Duty Process
All six DOT agencies shall remove their respective Return-to-Duty ("RTD") and Substance Abuse Processionals ("SAP") rules and use the RTD and SAP provisions of Part 40. Among the provisions in the new Part 40 are requirements for the qualification and training of SAPs, requirements for follow-up tests in all cases of violations, and clarification of the scope of the RTD process.
Pre-Employment Alcohol Testing
For several years, as a result of a court decision and subsequent legislation, pre-employment alcohol testing requirements in several DOT agencies were suspended. The practical effect of the suspension has been to give employers the discretion to conduct DOT pre-employment alcohol testing. To formalize the situation, the new Part 40 rules would authorize, but not require, employers to conduct pre-employment alcohol testing. If an employer chose to conduct pre-employment alcohol testing, under Federal authority, the employer would be required to do so in accordance with all of the new Part 40 requirements.
Split Specimen Testing
The new Part 40 rules would now require all DOT agencies to collect split specimens (two separate specimens) for drug testing. Employees have the right, within 72 hours of being notified of a positive test result, to require a test of the split specimen at a second certified laboratory.
Stand-Down Waivers
The new Part 40 permits employers to petition DOT agencies for a waiver allowing the employer to stand employees down following a report of a laboratory confirmed positive test or a refusal, pending the outcome of the verification process. The stand-down provision contains the substantive requirements for obtaining a waiver, but does not include the specific waiver procedures. Each of the operating administrations has, or will add, its own process for granting waivers from its regulations. At present, the DOT agency involved proposed to connect its own waiver process with the stand-down provision of the new Part 40. In so doing they will inform employers how they should frame stand-down waiver requests, and to whom the requests should be sent.
Definitions
The revised Part 40 includes a number of new or altered definitions of terms. Examples of new terms are: affiliated, adulterated specimen, consortium/third-party administrator ("C/TPA"), and stand-down. Other terms have altered definitions, for example, employer, which now specifies that service agents are not employers. In the interest of consistency and convenience of having a definition in only one place, the DOT agencies are to delete definitions of terms that duplicate terms defined in Part 40 (except where differences or greater specificity are needed in the agency rules). The DOT agency rules will make use of the terms defined in Part 40, and in some cases would be amended to use those terms.
Enforcement Matters
Each of the DOT agency rules incorporates Part 40 by reference. A violation of a Part 40 provision automatically becomes a violation of the DOT agency rule and is subject to the same kind of sanctions as other violations of the agency's rules. Where a DOT agency has predetermined sanctions for different kinds of rule violations, that agency shall, as part of their proposed rules, work Part 40 violations into its sanctions' system. Each of the proposed rules would make clear that a violation of Part 40 is a violation of the DOT agency's rules. In some cases, existing DOT rule language says that in the event of inconsistency or conflict between Part 40 and the DOT agency rule, the latter controls. This language shall be deleted. Where there is a difference between Part 40 and another agency rule (e.g., one required by special circumstance of a particular industry or agency program) the agency rule will state the difference explicitly.
