Another regulation, 49 C.F.R. §40.331(a) (2001), requires an employer or service agent to release information about an employee’s drug or alcohol tests to an identified person if the employer or service agent receives “written consent from an employee authorizing the release of information to an identified person.” An example of this might be where a former employee requests that his or her drug-testing information be provided to a subsequent employer. In providing the information, an employer or service agent must comply with the terms of the employee’s consent.
This is destined to become a hot issue in regulatory compliance and the courtroom. Don’t become a courtroom casualty.

Risk-Reduction Practical Guidelines

1. Establish written guidelines on exactly how a request for records may be made and the timetable for responding.

2. Ensure that all requests are directed to the appropriate compliance person in your organization. (Also make sure a back-up person is appointed).

3. Develop a form for making the request with space for a signature confirming receipt by the employee.

4. Audit your procedures regularly.

Disclaimer & Acknowledgements: 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 and Mike Jackson are management labor attorneys with the law firm of Wallace, Jordan, Ratliff & Brandt, L.L.C. who advise collection sites, TPAs, employers, workers’ compensation administrators, and MROs on a variety of drug and alcohol testing issues, policy development, and risk-reduction programs. Tom Eden and Mike Jackson may be reached by telephone at (205) 870-0555 or by e-mail at te@wallacejordan.com or mlj@wallacejordan.com. Please visit our web site at www.wallacejordan.com (which contains federal drug-testing regulations and other drug-free workplace resources at www.wallacejordan.com/drugfree.htm).

Over the past few years, DATIA has participated in several roundtables with DOT and HHS, advocating workplace drug testing programs and the "paperless laboratory." The advisory committee will be composed of approximately 20 members appointed by the Secretary from interested parties within the public, and members will be chosen to ensure a fairly balanced membership to bring into account a diversity of viewpoints, expertise, and backgrounds. Representation will include the technical and computer industry, drug testing laboratories, medical review officers (MRO), labor, trade and labor associations, and employers.

The FAA also proposes to revise the timing of pre-employment testing and to modify the reasonable cause and reasonable suspicion testing requirements. The FAA believes that changing the regulations would improve safety and lessen a burden on the regulated public. Comments are due on or before May 29, 2002. For more information visit www.datia.org.

DATIA invites you to assume a leadership position within DATIA by serving as a Committee Member. As a current member of DATIA, you are eligible to serve on its committees, and can take advantage of this benefit of membership.

DATIA’s Legislative & Regulatory, Specimen Collection, Consortium/Third Party Administrator, and Conference Committees are responsible for assisting DATIA in shaping the association’s agenda and programs for the future. We rely on input from Committee members throughout the year for guidance on issues and activities that will affect the drug and alcohol testing industry. Descriptions outlining the role of each committee are included below.

DATIA’s Committees are formed to assist the association in formulating its programs, benefits, activities, and lobbying efforts. The participation of and input provided by Committee members is key to enabling DATIA to act in the best interest of the drug and alcohol testing industry. Our membership contains a well-rounded representation of professionals involved in all segments of the industry and it is through our Committee members that DATIA is able to gain insight into the different opinions and ideas of these varying segments.

As DATIA’s programs and voice expand, we will rely on our committee members to ensure that DATIA’s positions and actions serve the best interest of the majority of our membership. As a committee member, we ask that you participate in the committee’s activities including conference calls, votes, and requests for comments. All committee business is conducted via fax, email, mail, and phone.

To be part of a DATIA Committee, simply complete the online or fax-back DATIA Committee Form available at www.datia.org and return it to DATIA by Tuesday, May 7, 2002. For those that are attending the Conference in San Antonio, a “meet and greet” for committee members will be held on Friday, May 3, 2002 in the Fiesta A room from 11:45 am – 12:30 pm. All current and potential committee members are encouraged to attend.

An overwhelming majority of respondents voted to approve the nominated slate for DATIA’s 2002-2003 Board of Directors. The following new board members will join the DATIA Board of Directors for the 2002-2003 Board’s first meeting on May 3, 2002 during DATIA’s 2002 Annual Conference in San Antonio, TX.

Hank Braner (incumbent)
CEO
Health Awareness Enterprises, Inc.
Savannah, GA

James Campbell (incumbent)
Executive Vice President
Ambassador Medical Testing Services, Inc.
Marlton, NJ

The results of DATIA’s recent mem-
ber survey, received from a quarter of the membership, substantially reflect how the problems associated with employees who work for multiple employers concurrently permeate the drug and alcohol testing industry. Of the respondents, over 61% are aware of employees in their drug and alcohol testing programs that are also concurrently working for other employers. More importantly, 51% of these respondents indicate that the employee is enrolled in each employer’s program meaning that the employee can test positive for one employer and not have this information reach the other employers where he can continue to work in a safety sensitive position despite a positive drug test. Using very conservative numbers based on our survey, over 30,000 employers are affected by this problem.

DATIA pressed the Department of Transportation (DOT) on this issue, including the importance of establishing a working group. In DATIA’s letter to DOT from January 24, 2002, concerning the problems encountered by employers when employing safety sensitive employees who concurrently work for other covered employers, DATIA stated that the problem was larger than DOT had indicated. To show how this problem permeates the drug and alcohol testing industry, DATIA conducted a survey of its members.
In addition, after reviewing the rules of the Federal Motor Carrier Safety Administration (FMCSA), DATIA found that there is current language allowing for and requiring the sharing of drug and alcohol testing information amongst employers who “use” a driver’s services. As DOT seeks to harmonize the rules among the modes to create One DOT, DATIA believes the combination of DATIA’s survey and this FMCSA language underscores the urgent need for a working group on this issue.

The enclosed survey was sent to DATIA’s 1028 members, of which 789 have indicated to DATIA that they perform collection and/or consortium services for employers mandated by DOT regulations. Of these, 180 responded to the survey (23%).

The first question posed to our members was “Are you aware of covered employees in your drug and alcohol testing program that are also concurrently employed by other DOT covered employers?” The majority of respondents (61%) are aware of this situation within their program. The majority of the respondents (69%) say that these employees represent 0-5% of their pool, while 13 % indicate they represent 6-10%, and 15% indicate that these employees with concurrent employers account for greater than 10% of their pool.

Of the greatest significance is that the 180 respondents to the survey alone can account for 4,497 client companies affected by employees working for them while also working for other covered employers. In the DOT’s listening sessions on the new Part 40 regulations, it was stated that there are approximately 673,413 employers within the DOT’s regulatory scope. Using very conservative numbers based on our survey, over 30,000 employers are affected by this problem. While that number may be insignificant to the DOT, it is not insignificant to the affected employers and service providers.