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Inside This Issue:
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DATIA
Members Take Charge of Their Future
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By the closing date of April 7, 2000, the DOT docket received more than 380
comments, over 25% of which were the result of DATIA members. Although DATIA was
hoping for a greater response from its members, DATIA commends those that did
submit comments to the docket regarding the recommended changes to the Department
of Transportation's (DOT) 49 CFR Part 40, considering the significant impact the
proposal will have on their businesses.
DOT indicated that they will give individual comments with anecdotal examples
from industry professionals greater consideration and several DATIA members responded
with incisive comments and illustrative examples that complemented DATIA's comments
to the docket. One member wrote, "The release of test results from the MRO to
an intermediary/TPA is time and cost efficient. Example: The MRO has 20 TPA clients;
each TPA has 500 accounts. The proposal would require the MRO to directly contact
10,000 companies instead of 20." Another DATIA member explained, "I disagree with
DOT's current proposal that says that collectors be trained by 'another person(s)
sufficiently knowledgeable in the application collection procedures of this part.'
This statement does not tell how the knowledge of this person can be measured
and therefore does not set a standard." Such comments illustrate the importance
of writing to the docket and what could be at stake in the final outcome of the
revision.
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Some members even encouraged their clients to send comments to the docket.
DATIA's Chairman Dean Klassy took the lead and encouraged eight of his clients
to send comments explaining their concerns about the proposed changes.
DATIA's comments on behalf of its constituency were based upon and identified
by DATIA's response to: Two comprehensive membership polls; legislative alerts
and e-mails; individual testimony provided at the three DOT listening sessions;
various comments submitted to the association following publication of the Notice
of Proposed Rulemaking; collected input on the industry's views at the recent
DATIA conference; and, by DATIA staff. DATIA's comment was comprehensive and succinct,
including a unique perspective for a small business differential for the applicability
of provisions of the proposed regulation (see page 4). To read the complete text
of DATIA's response visit http://www.datia.org/resources.
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It's the Law: Pre-Employment Drug
Testing of the Public Employee: Walking the Fourth
Amendment Tight Rope [Part III]
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| By:
Tom Eden, Esp. - Wallace, Jordan, Ratcliff & Brandt, L.L.C. |
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[The "It's The Law" article in the DATIA Newsletter from Nov. 1999 and
Jan. 2000 walked you through the post accident legal tight rope of public employee
drug testing both for safety sensitive and non-safety sensitive employees. This
"It's The Law" article will focus on pre-employment drug testing of applicants
for public employment. To review the Fourth Amendment issues covered in the last
two articles visit www.datia.org/news/news.htm.]
Public employers as well as collectors
and third party administrators working for those entities, who have been included
as named defendants in these type of cases, must be careful not to violate an
employee's freedom from unreasonable searches under the Fourth Amendment to the
U.S. Constitution and under a new federal district court case, this includes pre-employment
testing of job applicants. In Baron v. City of Hollywood, 2000 WL 424180 S.D.
FLA. Apr. 4, 2000 to be reported in F. Supp. 2D, the plaintiff, an applicant,
challenged the drug and alcohol abuse policy of the City of Hollywood, Florida,
specifically the provisions requiring all persons receiving a "Conditional Offer
of Employment" for any full or part time position to undergo a drug test. The
plaintiff claimed that the policy violated his constitutional right to be free
of unlawful searches and seizure under the Fourth and Fourteenth Amendments. The
plaintiff had been offered a job as an accountant in the City of Hollywood's Treasury
Department, but had refused to submit to a drug test and as a result, he was not
hired.
The court noted that the city had produced no concrete evidence or history
of prior use among its accountants or municipal employees generally. The city
defended the policy primarily on the basis of "perceived dangers of mismanagement
of public funds by drug abusing accountants," maintaining its "positive image,"
and providing "tangible assurances that public funds are in good hands and are
not in jeopardy of being squandered by impaired employees." The court concluded
that in light of the U.S. Supreme Court decision in Chandler v. Miller, 520 U.S.
305, 1997, the city's need for drug testing of prospective employees was "merely
symbolic" and "therefore insufficient to establish a special need justifying drug
testing." The court said that the city's desire to hire employees who have been
tested is essentially an effort to provide the same "public confidence" in the
city as Georgia sought by its attempt to drug test candidates for public office
in Chandler, but that the city "has not identified any jobs involving the type
of 'high risk, safety sensitive tasks' with potential for immediate injury to
others that would justify the need for testing."
As such, the court rejected the city's "public integrity sensitive" rationale
for its drug testing policy and therefore found the entire policy to be in violation
of the Fourth and Fourteenth Amendments. The court further noted that the Fourth
Amendment requires that the government connect its interest in testing to the
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particular job duties of the applicants it wishes to test and that, in order
for drug testing policy to be constitutional, the city would have to list all
of its positions and the particular duties of the job that justify drug testing.
Accordingly, it is highly recommended that governmental employers have legal counsel
review their existing policy. Governmental employers should prepare a list of
all positions that are considered "safety sensitive," closely document the job
duties and responsibilities that render the job "safety sensitive," and make such
a list an integral part of the Drug Free Workplace policy not only for purposes
of post-accident and random testing, but also for pre-employment testing. Only
those positions whose duties can be classified as "safety-sensitive" may be tested
as part of the pre-employment drug testing policy.
As noted in the previous articles, safety-sensitive employees are employees
who "discharge duties fraught with risks of injury to others that even a momentary
lapse of attention can have disastrous consequences" or whose duties have the
"potential for immediate injury to others." Skinner v. Railway Labor Executives
Assn. 489 U.S. 602, 628 (1989); Baron, 2000 WL 424180 S.D. FLA. Apr. 4, 2000.
Other court cases provided guidance in classifying jobs as safety-sensitive. See
National Treasury Employees v. Von Raab, 489 U.S. 656, 679 (1989); Ford v. Dowd,
930 F.2D 1286, 1290 (8th Cir. 1991); See also Knox County Educ. Assn. v. Knox
County Bd. of Educ., 158 F.3D 361 (6th Cir. 1998) finding that public school teachers
and administrators can be classified as "safety-sensitive" applicants for safety-sensitive
positions should be notified at the time they apply for employment what positions
are considered safety-sensitive and that they will be tested before they are hired
in accordance with the Employer's Drug Free Workplace policy. Applicants for non-safety-sensitive
positions should not be drug tested. The best protection against a Fourth Amendment
violation and resulting litigation is a well-drafted Fourth Amendment compliant
Drug Free Workplace policy with essential forms, notices, and consents. Our firm
has recently completed such a software project for a 600-member work compensation
fund, which anticipated this very issue.
DISCLAIMER: The above should not be construed as legal advice or legal opinion
as to any specific facts or circumstances. The contents are intended for general
information only, and you are urged to consult your attorney concerning your own
situation and any specific legal questions you may have. Tom Eden is a management
labor attorney with the law firm of Wallace, Jordan, Ratliff & Brandt, L.L.C.
who advises collection sites, TPAs, employers, work comp administrators, and MROs
on a variety of drug and alcohol testing issues and risk reduction programs. Tom
may be reached at (205) 870-0555 or te@wallacejordan.com. Please visit our Web
Site at www.wallacejordan.com (which contains federal drug testing regulations
and other drug free workplace resources).
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Washington Update
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FDA Issues Final Rule on Testing Devices
The U.S. Food and Drug Administration (FDA) has issued
its Final Rule [Docket No. 97N-0135], effective April 9, 2001, to reclassify
over-the-counter (OTC) test sample collection systems for drugs of abuse testing
from Class III (premarket approval) into Class I (general controls) and exempting
them from premarket notification and current good manufacturing practice requirements.
FDA's Final Rule also designates OTC test sample collection
systems for drugs of abuse testing as restricted devices under the Federal Food,
Drug, and Cosmetic Act. It establishes restrictions intended to assure consumers
that the underlying lab tests are accurate and reliable; the lab performing the
test(s) has adequate expertise and competency; and, the product has adequate labeling
and methods of communicating test results to consumers.
In addition, FDA is adding a conforming amendment to
the existing classification regulation for specimen transport and storage containers
to clarify that it does not apply to specimen transport and storage containers
that are part of an OTC test sample collection for the purpose of testing for
the presence of drugs of abuse or their metabolites in a lab. For further information
contact Steven Gutman, Center for Devices and Radiological Health, Food, and Drug
Administration at (301) 594-3084.
FMCSA Denies Random Testing of Drivers Exemption Application
The Federal Motor Carrier Safety Administration (FMCSA) has denied the
application of PacifiCorp Electric Operations for an exemption from FMCSA's controlled
substances and alcohol random testing requirements in the Federal Motor Carrier
Safety of PacifiCorp Electric Operations for an exemption from FMCSA's controlled
substances and alcohol random testing requirements in the Federal Motor Carrier
Safety Regulations. The company requested an exemption because it believed it
had a low percentage of positive random test results since testing was initiated.
PacifiCorp's positive rate for random drug tests is 1%, and its positive rate
for random alcohol tests is 0.8%.
FMCSA denied the application because the company did not explain how it would
achieve a level of safety that is equivalent to, or greater than, the level of
safety that would be obtained by complying with the random testing requirements.
FMCSA stated that some of PacifiCorp's drivers were not deterred from using controlled
substances and misusing alcohol and was, therefore, unreasonable to conclude that
exempting the company from random testing would provide a more effective deterrent
for the company's workforce. For additional information contact Mr. Larry Minor,
Office of Bus and Truck Standards and Operations, FMCSA, (202) 366-4009.
Drug-Free Workplace Act Introduced in
Florida
Legislation introduced recently in the Florida House of Representatives would
require certain state contractors to implement drug-free workplace programs. If
enacted, HB 195 (Suarez) would require building construction, electrical and alarm
system contractors performing work on public school system facilities, public
property, publicly owned buildings or state correctional facilities to comply
with the requirements of the voluntary Workers' Compensation Premium Reduction
Act.
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Covered contractors under the proposed legislation would have to conduct pre-employment,
for-cause, post-accident, and rehabilitation drug tests. Random tests would also
be permitted. The proposal would also mandate written drug-free workplace policy
statements, the use of licensed labs, confirmation of initial positive tests via
GC/MS, and MRO verification of confirmed positives. Covered contractors would
be required to have on hand information on local employee assistance providers,
inform employees and new hires of the availability of employer-sponsored employee
assistance programs, and provide annual employee drug and alcohol abuse education.
HB 195 is currently pending in the Transportation and Economic Development
Appropriations Committee. If enacted, the legislation would become effective October
1, 2000. A similar bill in the Senate (SB 868, King) is awaiting action in the
Governmental Oversight and Productivity Committee.
Sen. Ashcroft Introduces Drug Testing of Federal Prisoners
Legislation
United States Senator John Ashcroft (R-MO) recently introduced legislation
to require the Bureau of Prisons to establish and implement a mandatory pre-release
drug testing program for Federal prisoners. The bill, S. 2008, would require each
prisoner submit to a drug test not less than 30, nor more than 60 days prior to
their release. If a prisoner tests positive, the Bureau would be required to notify
the Attorney General of the positive test. The Attorney General would then issue
an arrest warrant for the prisoner if the Attorney General has reasonable cause
to believe, based on test results, that the prisoner has violated a prohibition
against providing or possessing contraband in prison, a prohibition under the
Controlled Substances Act against simple possession of a controlled substance,
or any other provision of federal law.
S. 2008 also authorizes appropriations for the establishment of an office within
the Justice Department for the investigation and prosecution of prisoners for
whom an arrest warrant is issued following the Attorney General's determination.
S. 2008 is currently pending in the Senate Judiciary Committee.
ACLU of Washington State Challenges Suspicionless
Urine Testing for Students
Recently, two sets of parents filed a lawsuit challenging
the Wahkiakum school district's recently adopted policy of suspicionless
drug testing for students who participate in extracurricular athletic activities.
The lawsuit contends that the policy was adopted without any convincing evidence
that there is a significant problem among students with use of illegal drugs or
that disciplinary problems have increased as a result of student drug use.
The lawsuit further charges that urine collection procedures substantially
invade personal privacy and violates the "privacy clause" of the Washington Constitution,
which provides that "no person shall be disturbed in his private affairs, or his
home invaded, without authority of law." A 1985 Washington Supreme Court ruling
stated that it was unconstitutional for public schools to search a student without
individualized suspicion that he or she was breaking the law or a school rule.
The Wahkiakum collection procedure requires students to shed all extraneous clothing
and urinate in close proximity to an official. A student who is unable to provide
a sample without a medical reason is deemed a drug user and will be barred from
all extracurricular athletics.
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Consortium/TPA
Seminar Attendees Push for Recognition
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With over 12 Consortium/TPA Management Seminars already presented, and much
feedback gained from the over 350 attendees, it is clear that there is a high
demand for education on professional standards in the area of Consortium/TPA Management
and recognition for those that meet those standards. Attendees consistently express
that their reasons for attending the seminar are to learn how to effectively manage
a Consortium/TPA when there are so many intricacies and gray areas to be considered,
as well as to show their clients that they are dedicated to their program's compliance.
After a full day of detailed discussions and instructions, attendees leave
with solid answers to their most pressing questions. DATIA stresses the importance
of consortia creating their own "brand identity" within the parameters of the
industry standards to allow each Consortium/TPA to differentiate themselves from
others and compete for new clients. This means that once returning to work, the
Consortium manager needs to ask him/herself "Which way will we do this? How can
we provide our clients with the best service, and stand out next to ABC Consortium?"
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With Consortium/TPA managers coming from very diverse backgrounds, there exist
many different areas of expertise among these managers. In surveys of course attendees,
over 80% of the attendees have been managing Consortium/TPA operations for over
a year, 99% have experience in performing collections, 30% have experience as
a Medical Review Officer, and 10% have Laboratory working experience. Clearly,
most consortium managers have gained significant industry experience before moving
into the Consortium/TPA management arena. Most have received certifications in
one or more of these backgrounds, but not in total program management. Many course
attendees have fervently requested that DATIA recognize those Consortium/TPA operations
that are clearly striving for and meeting the industry standards of excellence.
They indicate that many more potential clients are seeking proof of industry recognition.
DATIA is currently working with the Consortium/TPA Committee to develop a program
to officially recognize those Consortia/TPAs that consistently provide their clients
with exceptional customer service and 100% client compliance. We look forward
to meeting our members' needs, and announcing the Committee's developments later
this year. For information visit www.datia.org/calendar/maincalendar.htm.
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DATIA Announces
New Executive Director
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DATIA is pleased to announce the promotion of Laura Norfolk to the position
of DATIA Executive Director effective May 1, 2000.
Laura has shown an excellent dedication and aptitude for DATIA issues and programs.
She has been employed by DATIA since the first DATIA conference, and has been
instrumental in creating top-notch conferences and DATIA programs ever since.
Over the past two years, she was responsible for the successful
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change and expansion of the DATIA collector certification programs and training
courses. Laura's excellent membership service and dedication to the membership
has warranted such a promotion. Congratulations Laura!
Jeffrey C. Smith will revert to Managing Director (as it was at NACS/DATIA's
creation) and will continue to work closely with Laura and the Board to ensure
that DATIA continues its growth and influence as the largest and most effective
association representing the drug and alcohol testing industry.
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Sponsor Drugtestingnews.com
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DATIA invites your corporate or organizational sponsorship for the first and
only comprehensive web site on drug and alcohol testing news. This new site is
limited to six sponsorships, which will prominently appear on the homepage, with
a link to the sponsor's web site.
Drugtestingnews.com is the first one-stop all-inclusive "web portal" encompassing
all areas of drug and alcohol testing news and information. Drugtestingnews.com's
mission is to contain a central source of information on drug and alcohol testing
articles in the national media, federal and state government, the private sector,
and the judicial system. It is a one page daily resource containing links to all
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necessary information for all persons affected by drug and alcohol testing.
DATIA closely monitors federal agencies, new regulations, drug-testing technology,
court cases, and prevention and treatment to provide the most comprehensive web
site available to members of small business, substance abuse professionals, drug-alcohol
testing professionals, and the general public.
Each sponsor of Drugtestingnews.com will have its company or organization's
logo appear on the web site's homepage. From this logo, a viewer will be able
to link to that organization's web site. DATIA will accept six sponsors. For information
on sponsorship, please contact Laura Norfolk, DATIA Executive Director at 800-355-1257.
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DATIA Responds
to Part 40 Proposal
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DATIA, in its comments to the docket on the U.S. Dept. of Transportation's
(DOT) proposal to revise its 49 CFR Part 40 drug and alcohol testing program regulations,
cited the need for a small business differential for the proposed regulation.
Other highlights of DATIA's comments to the docket include:
1. PUBLIC INTEREST EXCLUSION: DATIA's comments suggested producing, in cooperation
with the testing industry, an objective and specific list of violations that would
trigger Public Interest Exclusion (PIE) by DOT. Also suggested were monetary fines
rather than business suspension, adding new elements to increase the "due process"
of the PIE procedure, and phasing in enforcement procedures.
2. REPORTING OF TEST RESULTS: It is essential for consortia and third party
administrators to receive test results from the MRO after they have been verified
and report them to the employer. The ability to do so has assisted DOT tremendously
over the past 12 years in maintaining a high level of program compliance, especially
by small businesses.
3. SERVICE AGENT ASSURANCE: DATIA members overwhelmingly support accountability
in the testing program through a written contract between service provider and
client. DATIA does recommend that DOT implement a phase-in period of not less
than one year for this proposed requirement.
4. DEFINITION OF EMPLOYER: Removal of the term "consortia" from the definition
of employer is strenuously opposed. DATIA proposes allowing small employers to
continue to use consortia to fulfill necessary roles on their behalf, and maintain
a high level of compliance among the mandated testing community.
5. STATISTICAL REPORTS FROM LABORATORIES: None of DATIA's members have ever
reported any real utility from these reports, despite their high costs. DATIA
supports either completely eliminating statistical reporting, or limiting it to
those employers of greater than 50 employees.
6. MRO AND COLLECTOR TRAINING: In general, DATIA believes that in an effort
to maintain the quality and integrity of the services provided and ultimately
the safety of the public, all service agents in the drug and alcohol testing industry
should be certified as to their proficiency.
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7. FAILURE TO DRINK LIQUIDS AS INSTRUCTED: DATIA supports the precept that
failure to provide a specimen will result in a refusal to test, as will a failure
to cooperate with any part of the testing process, including refusing to drink
liquids as instructed.
8. DIRECT OBSERVATION IMMEDIATELY FOLLOWING A DILUTE SPECIMEN: DATIA supports
maintaining the requirement of an immediate direct observation specimen when the
original is dilute. Such a provision will help to validate the testing process
relative to substituted or altered original specimens.
9. ADULTERATED, SUBSTITUTED, AND DILUTE TESTS: Adulteration andsubstitution
of specimens in an attempt to frustrate the testing process is a very serious
threat to the DOT testing program, the testing industry, and most importantly
to public safety. DATIA members overwhelmingly support validity testing.
10. DRUG TESTING FORMS AND MATERIALS: DATIA supports the use of a universal
chain of custody form with a check box indicating a "Federal" or "non-Federal"
test as a way to lessen the chance of completing an incorrect form and reducing
printing costs. Members also support use of a testing kit conforming to DOT standards.
Members felt that current security measures for testing materials and supplies
were adequate and did not warrant additional requirements.
11. ELECTRONIC RECORDS AND SIGNATURES: DATIA recommended that DOT work cooperatively
with the U.S. Dept. of Health & Human Services (HHS) to permit the optional
use of e-forms and e-signatures within three years.
12. BLIND SPECIMENS: DATIA recommends that the blind specimen requirement be
eliminated entirely, based on the fact that labs certified by HHS ensure compliance
of all necessary requirements already.
To view a complete copy of DATIA's response, visit http://www.datia.org/resources/part40comments.htm.
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New CCF and Changes
to Part 40
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The Department of Health and Human Services (DHHS) antici-pates the Office
of Management and Budget (OMB) approval of the Custody and Control Form (CCF)
in May, and in approximately two months time the new form will be available. The
final rulemaking for 49 CFR Part 40 is still many months away, but the provisions
of the CCF will have a significant impact on the drug testing procedures incorporated
into the Part 40 revision. The Department of Transportation (DOT) will have to
conform with DHHS' changes to the CCF and tailor certain sections of Part 40 in
order to comply with the new version. In addition, the Notice of Proposed Rulemaking
(NPRM) addressed issues based on the old CCF.
At this time, how the new CCF will ultimately affect the final rulemaking for
Part 40 is not clear. With the open public hearings and comment period by DOT
having concluded, professionals working in all capacities of the drug and alcohol
industry have not been able to review or evaluate the Part 40 proposal in its
entirety while taking the new CCF into consideration.
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The CCF is mentioned in several sections of the NPRM including: drug testing
forms and materials, electronic records and signatures, the collection process,
the definition of Chain-of Custody, and in at least forty other areas. With the
comment process exhausted by DHHS and DOT, industry professionals can only hope
for a reasonable resolution with manageable changes after 10 years since a major
re-write of the rules.
DOT assures the industry that prompt completion of the rulemaking will have
important benefits for employers, employees, service providers, and DOT, with
the Part 40 comment period extended twice the length of most rulemakings. DOT
suggests that in instances where the Part 40 NPRM refers to the CCF, the substantive
effect of these references will not change due to the publication of the new version
of the CCF. DOT will make the ministerial changes concerning sections that will
be affected.
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Question of the
Month
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Q. A member of our consortium of trucking companies plans to move a non-safety
sensitive employee into a safety sensitive position, thus requiring him to be
added to the consortium random pool. Since this person is not a new hire, can
he just be added to the pool per Federal Highways?
A. No, even though this employee is not a "new hire," they will be entering
a safety sensitive and DOT covered position for the first time, which requires
a pre-employment test. Failing to either conduct the pre-employment test with
a negative result received or meeting the exception requirements will put both
the company and the consortium pool in non-compliance.
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The company can opt to exempt the employee from a pre-employment test ONLY
if the employee has been in a drug testing program for the previous 30 days, has
not violated a DOT agency's controlled substances rule within the last 6 months,
AND has either been tested for controlled substances within the last 6 months
or has participated in a random testing program for the last 12 months. The testing
program that the employee has been participating in must meet the DOT requirements.
Unless the company can verify that these qualifications are met, the employee
must have a pre-employment test completed.
Many employers do not understand this rule. Therefore, it is up to the consortium
to provide this education as part of their services. Other modes differ, please
check the regulations for each modal agency to ensure compliance.
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