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June/July 98 DATIA News |
Workplace Drug Testing Initiative Congress has introduced the most comprehensive legislation to date to encourage drug testing in small businesses. DATIA is urging Congress to expedite passage of this legislation in order to give small businesses incentives to develop workplace drug-testing programs. DATIA will actively support this measure to win passage before the fall elections. The bill, HR 3853 was introduced by Representative Rob Portman (R-OH) and received overwhelming support from the business industry, but was viewed with concern by the insurance industry and was opposed by the American Civil Liberties Union (ACLU). For the most part, Congress seemed to support the general policies defined in this measure, however, some Congressmen were concerned about privacy issues, that employees testing positive received treatment and that positives are confirmed before the employee is fired. Specifically, the bill would establish a drug-free workplace demonstration program making $10 million worth of grants available to provide financial and technical assistance to small businesses that develop and participate in drug-free workplace programs. The bill also would instruct small business development centers to provide information and assistance to small businesses in developing these programs. Although small businesses make-up approximately 50% of the workforce, very few of those companies drug test their employees. Considering that 74% of adults who use drugs are employed, it is clear that Congress sees the value of these programs. State Regulatory Briefs Each state has significantly different drug testing laws with some prohibiting any drug testing and others allowing expanded drug testing rights for the employer. As a service to members, DATIA follows and reports on what's happening in the states with drug testing. It is incumbent on DATIA members, however, to fight locally for increased and expanded laws on the state level while DATIA continues to advocate on the national scene. The following are some brief highlights from states that have recently been active on these issues. Contact your statehouse for more information. The New Jersey Assembly just passed a workplace drug-testing bill that permits and encourages workplace drug testing. The bill permits drug testing as part of the routine physical of an employee by the employer if there is reasonable suspicion of drug abuse, and would allow drug testing for job applicants as part of their pre-employment requirements. Of significant note, the bill allows the use of alternative specimens including tissue, breath, urine, saliva and on-site tests for initial screening. Maryland Maryland lawmakers rejected a measure that would allow employers to utilize on-site testing for job applicants to be used as a preliminary screening. Proponents of on-site testing indicated that election-year politics played heavily in the bill's failure. Although the bill would have only allowed the use of on-site testing for job applicants and required laboratory confirmation of the results, it gained little support from lawmakers. Virginia passed a bill permitting employers to deny unemployment benefits to employees testing positive for non-prescribed controlled substances. Despite an earlier bill including positive alcohol tests as reasonable denial of unemployment benefits, the final bill did not include it. Also included in the bill, is a provision allowing the Virginia Employment Commission to review evidence of mitigating circumstances. Although current law denies unemployment benefits for employees testing positive for drugs or alcohol, Colorado law allows unemployment benefits for an employee who produces evidence of a medical diagnoses of alcoholism or drug addiction. If this bill is passed it would deny unemployment benefits to individuals in this situation who: (1) did not work for a period of time because of alcohol for drug addiction treatment; (2) received unemployment compensation during said treatment; (3) were determined by a licensed physician that the individual could return to work; and (4) for individuals who have already filed claims for unemployment benefits for reasons of alcohol or drug addiction. Tennessee lawmakers are considering a bill that would institute certain requirements in order for the employers to deny unemployment benefits when an employee tests positive for alcohol and is fired. In order to be considered positive (at a level high enough to deny benefits), the employee must have a blood-alcohol concentration level equal or greater than 0.10 percent for non-safety sensitive employees and 0.04 percent for safety sensitive employees. Georgia lawmakers are considering two measures aimed at drug testing. The first would significantly reduce the worker's compensation premium for employers offering a drug free workplace to 15 percent. This measure was offered after the immense success of previously reducing the rate to 7.5 percent. The second measure would reduce the statewide worker's compensation contribution reserve ratio by 0.2 percent for employers with a drug-free workplace program. Essentially, employers would have to contribute 0.2 percent less than the rates specified for employers without the program. In a state that has historically had a dismal drug testing record, Iowa lawmakers recently passed a law broadening the employers' right to test employees for drugs. Now employers in Iowa can conduct pre-employment, reasonable suspicion, post-accident, random and post-rehabilitation drug and alcohol tests. Most important is the repeal of a law that prohibited employers from imposing sanctions on employees who test positive. Niagara County, NY lawmakers approved pre-employment drug tests in 1997, but when the costs of the tests were realized, implementation of the program was delayed. The county did not expect each test to cost as much as they did, but after some "shopping around" the county settled on a program and is now conducting the urine drug tests. Hair was originally considered, but the cost of that program would have been triple the cost of the urine tests and the county could not expend the funds. Congress To Study Police Collections On Highways DATIA opposes the responsibility of post-accident alcohol testing being moved from the employer to law enforcement officers. Taxpayer dollars should not be spent on law enforcement testing when there are thousands of collection sites already in place with the ability to handle post-accident collections. Late last month, Congress passed sweeping legislation that included a requirement for Congress to conduct a study to evaluate the use of law enforcement officers to administer post accident alcohol testing of commercial drivers. The American Trucking Association (ATA), the main proponent of this study, argues that collection facilities are not within a few hours of many accidents thereby making collections very difficult. DATIA alone, has approximately 1,000 members located in every region of the country and in almost all cases can reach an accident site within the two-hour limit. In addition, Congress may look into modification of the random testing rate for each commercial driving company. DATIA also opposes such a provision because it would be very difficult to regulate companies when each random rate is set at a different rate. Postal Service Delivers On-site Testing On-site testing gets another big boost with the announcement that the US Postal Service will be using on-site tests on a trial basis for pre-employment screening until the end of this year. DATIA came out in support of on-site testing at the Annual Meeting in March. The Postal Service will use the on-site test for preliminary analysis only and will continue to use laboratory confirmation and medical review before a result is verified as positive for drugs. Roche Diagnostics won the contract for the on-site tests.
Possible Date Announced For Opiate Cutoff Changes At the latest meeting of the Drug Testing Advisory Board Meeting, HHS announced that they are working with the laboratories to meet a November 1, 1998 deadline to implement the changes to opiate cutoff levels. HHS delayed the May 1, 1998 implementation date to raise the opiate cutoff levels in order to allow laboratories and kit manufacturers to make appropriate changes to meet the new cutoff levels. Raising the cutoff level for opiate metabolites is expected to decrease the number of false positives while continuing to detect drug users.
US House Can't Agree on Drug Testing Program Despite the overwhelming support of a Congressional Drug testing program, the US House of Representatives cannot agree on it's implementation. Despite pro-workplace drug-testing legislation coming out of the House (see front-page story), the House continues to be reluctant in passing comparable legislation for themselves. In January, the House overwhelmingly passed rules that would require every lawmaker and staffer to submit to a drug test. This rule expires at the end of this session and does not apply to the next session of lawmakers in January 1999. Concerns surround how to proceed when elected officials test positive on a drug test--how do you fire an elected official? These constitutional questions are being researched by lawyers, but don't expect Congress to be subject to the these rules anytime soon even though some conservative Members are advocating a full range of drug testing in Congress.
SmithKline Beecham reported that the drug-test positive rates were down for 1997 for the eleventh straight year. The rates for 1997, 5.0 percent positives is the lowest rate since 1987 (18.1% positives) which is the first year they began tracking the positive rates. Included in the study are nearly 5 million workplace drug-tests conducted at SmithKline Beecham labs in 1997 of which 250,000 were positive. Marijuana use was up by 6 percent in 1997 but cocaine use was down 7 percent in 1997.
The Drug Testing Advisory Board (DTAB) met June 8th to continue consideration of alternative specimen use in Federally mandated programs. DTAB announced that they are still seeking information from industry experts on specific components of alternative specimen drug testing. The Department of Health and Human Services (HHS) issued draft guidelines on use of alternative specimens in drug testing and many holes remain. Until HHS gets answers to these questions, Federal use of alternative specimens will be delayed. At the DTAB meeting, there was a presentation on Liquid Chromatography/Mass Spectrometry, which is an alternative confirmation process to Gas Chromatography/ Mass Spectrometry. LC/MS has been used mostly in the pharmaceutical industry, however, many in the forensic community say that although this technology is costly, it is faster, more accurate and requires less maintenance than GC/MS. More information will appear in the next newsletter.
Issued: FHWA, December 19, 1997 Q: A motor carrier uses a consortium to conduct its random selections of drivers' names. The consortium has many motor carriers in its random selection pool. The consortium has set up its random selection program to pick driver names and notifies the motor carrier whose driver the consortium selected. The motor carrier notifies the consortium that the driver is presently on long-term layoff, illness, injury, or vacation. The motor carrier also notifies the consortium that it does not expect the driver to return to duty before the consortium's next selection of driver names. The consortium then randomly orders and selects a driver's name from the same motor carrier as the driver who is presently absent rather than selecting the next name on the random selection list. Is this a scientifically valid and impartial method for selection drivers for random testing in motor carrier's program?
A: Yes. This procedure is a scientifically valid method for selecting drivers' names. This method is similar to methods used by organizations, including the Department of Labor's Bureau of Labor Statistics, to randomly order, select, and substitute names for sampling with replacement of groups of individuals and companies. This procedure has a small degree of theoretical bias for a simple random sampling selection procedure. The theoretical bias, though, is so minimal that FHWA does not believe the agency should prohibit its use. This method is useful for operational settings, such as the FHWA's motor carrier random testing program. The method is less impartial toward drivers than other theoretical methods, but maintains a deterrent effect for both motor carriers and drivers. This method should deter motor carriers from claiming drivers are unavailable each time the consortium selects one of its drivers, thereby never having its drivers subject to actual random tests.
Issued: Department of Transportation June 4, 1998
The Department of Transportation (DOT) issued formal support for the policy and procedures outlined by the Department and Human Services (DHHS) that directs DHHS certified laboratories and medical review officers (MROs) to follow specific procedures in testing split specimens for adulterants. The policy, which was reported in the last newsletter, says that when the initial test is positive and the split specimen is negative, all split specimens must be tested by a third lab for adulterants. DOT has received many inquiries about whether the adulterant testing applies to DOT-mandated testing. The DOT has clarified that these policies and procedures for MROs and laboratories apply to all split specimens collected under DOT authority.
Train the Trainer courses are scheduled for the following dates. If you have not yet registered, contact Becky Norton at (800) 355-1257 to reserve your space. These courses continue to sell out, so we advise you to register early. Saturday, August 15, 1998 Sunday, August 16, 1998 Dallas, TX St. Louis, MO *These courses occur immediately prior to and following the 1999 Annual Conference scheduled for April 23-24, 1999. Member Profile Don Rothschild The Compliance Alliance was formed in 1994 for the specific purpose of assisting companies with managing drug-free workplace programs and DOT compliance. As Operations Manager, Don is responsible for training his staff in urine, breath and saliva collections. The site achieved Accredited Status in April of 1998. Don reports that The Compliance Alliance is considered the local authority on drug testing, and that his clients are very pleased to see that the site is accredited. They appreciate the fact that they can be assured they will receive professional collections in a timely manner. Don feels that the most important issue affecting the industry today is the quality of collections. In Don's area, he encounters clinics that undercut the Compliance Alliance's collection rates, but also offer a lower standard of service. Clients have been reported to have waited over two hours in the clinic's waiting room for a collection, and then the collectors were not careful when actually performing the collection. This has turned out to be a competitive advantage for The Compliance Alliance. They can honestly tell potential clients that they offer professional work with a short turn around time. Many collectors are worried that the much anticipated rewrite of CFR 49 part 40 will include increased collector liability. Don, however, feels that such a provision would not affect his daily business operations. His greatest service to the customer is already liability issues. The Compliance Alliance currently addresses these issues on a daily basis for their clients, and will continue to do so. Don looks forward to such a provision as it would increase the professionalism of collections across the nation. The Compliance Alliance has never been to court, and they don't plan to in the future. |
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