federal courts are split over whether arbitrators can reinstate pilots who have flown while intoxicated or who abused drugs. Eastern attorney Roberts told the justices that companies should not be forced to take back recidivist drug abusers. He said the “public-policy” exception should not be limited to awards that require some action contrary to written law, and he emphasized the risks involved in operating tons of heavy equipment. Citing prior cases, Roberts also raised the specter of derelict nurses giving patients the wrong medication, nuclear power plant workers dodging their duties to get to lunch, and pilots flying while drunk.

Mooney responded that a judge could upset an arbitrator’s order only for a public policy that is “well-defined and dominant.” He said there is arguably a competing national interest here in worker rehabilitation and reinstatement. The U.S. government sided with the union. The justices appeared more sympathetic to that position. Although they peppered both sides with questions, they seemed to be most concerned with how any policy that isn’t specifically embodied in federal law could be consistently applied by the courts. Justices Ruth Bader Ginsburg and David Souter emphasized that Eastern’s contract with the union did not include a discharge penalty for repeat drug offenders. Souter also pointed out that the United States has a strong policy respecting arbitration awards. A ruling in the case is expected by summer.

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).

A federal appeals court upheld the tests as legitimate efforts to reduce crack cocaine use by pregnant women. The Supreme Court's ruling, expected by July 2001, could determine whether the hospital reinstates the policy and whether other hospitals consider adopting similar tactics.


Congress Lowers Drunk Driving Threshold

Recently, Congress passed the Department of Transportation’s appropriations bill (H.R. 4475); a provision in the bill establishes the new national blood alcohol standard at .08 percent.

This legislation will force all 50 states to enact this new standard or run the risk of losing much needed federal highway funding. The new legislation would cost states 2 percent of their allotment of highway dollars if they have not enacted the lower blood-alcohol level by Oct. 2, 2003. For more information visit DATIA’s Resource page at www.datia.org/resources/resources_mainpage.htm.


House Bill Would Allow Civil Suits Against Drug Dealers

Producers and sellers of illegal drugs would be subject to civil suits from those they harm under legislation that passed in the House. This measure, passed by voice vote, states that anyone committing a felony by manufacturing or selling a controlled substance would be liable for the harm, direct or indirect, they inflict on individuals, parents, drug-addicted babies, employers, insurers, and other parties.

Twelve states already have civil liability laws for drug dealers, and the legislation would extend to the other 38 states. The bill has yet to be considered by the Senate.

Of equal importance to the industry, the Department of Health and Human Services’ (DHHS) Draft Mandatory Guidelines for Workplace Drug Testing is in its final stages of completion. The final draft is expected at the Drug Testing Advisory Board meeting to be held on December 5, 2000. Once a final draft has been completed and approved by DHHS, the document will enter into formal regulatory procedures to become a final working document for the industry to follow.

DHHS responded to DATIA’s comments submitted for the draft guidelines by incorporating suggested changes such as requiring certification of Medical Review Officers, and not requiring a responsible technician (RT) to be employed at a Point of Collection Test (POCT) Provider. DHHS also incorporated DATIA’s suggestion that there is no need for POCT Providers to be inspected and certified by SAMHSA since collectors/testers are certified, and POCT devices are FDA approved. These changes are significant in that they now contain requirements that will enable more drug and alcohol testing providers to have the opportunity to perform point of collection testing for federal drug free workplace programs.

DATIA will keep you updated on the status of both the 49 CFR Part 40, and Federal Mandatory Guidelines for Workplace Drug Testing.

DATIA commends the Department of Health and Human Services, Center of Substance Abuse Prevention, Division of Workplace Programs and the Drug Testing Advisory Board (DTAB) on the great efforts made in drafting the second draft of the revised Mandatory Guidelines for Federal Workplace Drug Testing Programs.

The second draft of the guidelines, which was made available on September 6, 2000, shows their sincere interest in working with the drug and alcohol testing industry and in encouraging an open forum of communications to address important issues.

There were a total of 26 separate comments submitted regarding the draft guidelines of which DATIA is included. DATIA was exceptionally pleased to see that over 80% of its comments and suggestions were incorporated into the second draft of the guidelines. To view the comparison of the first and second drafts of the Mandatory Guidelines for Federal Workplace Testing with DATIA’s comments, highlighting the major changes

DATIA supports the Department of Health and Human Services (HHS) recently announced investigation into drug testing procedures, in the wake of a Delta Airlines Pilot testing case. DATIA has every confidence in the Department of Health and Human Services’ ability to enforce its comprehensive drug testing regulations to preserve the industry’s integrity and reliability.

The reliability of a drug test has caused HHS to begin inspections of all 65 federally certified labs that test transportation workers for drugs. Five Delta Air Lines Inc. employees, including a pilot, were fired after a certified lab reported their urine samples had been substituted. Delta commented later that those employees will be offered reinstatement because of possible doubts about the reliability of the test results.

The comprehensive and stringent regulations developed by HHS regarding the drug testing procedure have proved very reliable and are enforced through a system of checks and balances, specifically, the National Laboratory Certification Program consists of qualifying evaluations, proficiency testing trials, and on-site inspections. To become certified an applicant laboratory must undergo three rounds of performance testing plus an on-site inspection, and to maintain that certification a lab must participate in a quarterly performance testing program plus periodic, on-site inspections.

The Federal Motor Carrier Safety Administration (FMCSA) recently announced that Raymond Kerr, the operator of Kerr Transportation Services, Inc., a drug-testing consortium based in Vadnais Heights, Minn., was sentenced and required to pay restitution for mail fraud because he violated the U.S. Department of Transportation’s (DOT) federal drug-testing regulations.

Kerr was sentenced on Aug. 16, 2000 in U.S. District Court in Minneapolis, for defrauding hundreds of trucking companies that relied on Kerr for random drug-testing of truck drivers. Kerr originally pleaded guilty and was sentenced to four months’ incarceration and 36 months’ supervised release, and also was required to pay $8,641 in restitution.

DOT regulations require all motor carriers to randomly test their commercial motor vehicle (CMV) drivers for drugs and alcohol. Carriers may choose to form consortia for random drug and alcohol testing on behalf of all drivers within the group formed.

Paramethoxyamphetamine (PMA) closely resembles ecstasy, but experts warn that the newer drug is far more deadly. PMA, taken at the same dosage amount (as ecstasy), produces a less-intensive feeling within the system. People assume that they are getting weak ecstasy and then take more. Within a matter of a few hours after taking PMA, the internal body temperature rises to fatally high levels. At 103 degrees, brain-neuron damage occurs, then at 104 degrees, the body goes into a coma. At 106 degrees the internal organs start to shut down.

PMA has been blamed for deaths in Australia and Canada, but was relatively unknown in the U.S. until recently when dealers and manufacturers began adulterating or substituting PMA for ecstasy because it is easier and cheaper to make. Because the drug is so new

The 106th United States Congress is considering the passage of bill H.R. 2614, which includes reauthorizing appropriations for the Drug-Free Workplace Act, recently renamed the Paul D. Coverdell Drug-Free Workplace Program.

The bill authorizes $5,000,000 for each of the fiscal years from 2001 through 2003 to help fund Drug-Free Workplace Programs. Several DATIA members have received money to implement Drug-Free Workplace Programs for small business.

In response to these questions, Hanrahan explained that he was on prescription medication and that he had been hospitalized twice for mental illness. Approximately one week later, Hanrahan received a letter from American Airlines, Inc.’s Medical Department requesting more information about his use of prescription drugs that he had mentioned during his drug test. Hanrahan complied with this request and compiled information and a note from his doctor identifying Harahan’s disability, noting that his medication did not cause any significant side effects and approved him for employment.

During the next three months, Hanrahan contacted AMR Services, Inc. three times concerning the status of his application. AMR Services, Inc. allegedly provided contradictory information and failed to follow up with Hanrahan as promised. On June 12, 1997, Hanrahan was finally informed by AMR Services, Inc. that had was no longer being considered for the position.

Hanrahan believes that AMR Services, Inc and American Airlines engaged in an unlawful employment decision in failing to hire him based on his disability and in violation of Section 102 of Title I of ADA.

Additionally, EEOC claims that a policy of requiring applicants to disclose information about their use of prescription drugs, medical history, and their disabilities, prior to an offer of employment is in violation of ADA and EEOC Regulations.

DATIA will continue to keep you updated on the status of this case.