The Federal Transit Administration (FTA) issued a final rule on the issue of Post Accident testing, allowing state and local law enforcement officers to conduct limited tests for drug and alcohol when employers are unable to do so. This rule was announced in the Federal Register on December 8, 1998. As part of an approval of limited use of drug and alcohol tests conducted by law enforcement officers, the Federal Transit Administration (FTA) addressed several of DATIA's specific concerns.

According to DATIA's Government Relations Representative, "Incorporation of DATIA's concerns on this issue by the FTA means that the Association is doing it's job in identifying problematic regulatory issues and finding solutions for our members." Although DATIA continues to be concerned about untrained and unqualified professionals conducting drug and alcohol testing, they believe that FTA's insistence that the employer continues to be required to conduct post-accident tests means that the law enforcement tests will only be used in very limited circumstances. As part of their acceptance of these post-accident drug and alcohol tests, the FTA said that this change in policy "applies exclusively to those few instances where the employer is unable to perform a post-accident test." This means that the employer must continue to conduct these tests, but in the rare case that they can't, they may use a police initiated post-accident drug and alcohol test.

On November 26, 1997, DATIA (then the National Association of Collection Sites) issued four concerns that the association had with this proposed rule. DATIA's concerns were: (1) law enforcement officers are not trained in specimen collection procedures; (2) employers would no longer be responsible for the tests and would rely on the law enforcement officers to conduct them; (3) employers would not be able to retrieve the tests from the law enforcement officers; and (4) FTA should delay final decision on the rulemaking until 46 CFR part 40 is issued.

Although DATIA believes strongly that specimen collections should be conducted by trained professionals and that all drug and alcohol testing of safety sensitive employees should meet the requirements set-forth in part 40, the FTA officials did answer and address most of DATIA's concerns with the rule. According to Taylor, "In cases where there is no possible way for an employer to get a post-accident drug or alcohol test, it is far better to have the police conduct the collection and testing of the specimen then it is for the employer not to get a test at all. As long as the employer continues to have trained personal to collect the specimen for these tests, we don't really have a problem with this rule."

DATIA will continue to keep you informed of the latest legislative and regulatory issues facing the industry. For more information, and a copy of this rule, see DATIA's website at www.datia.org.

Is it truly random? The question is always posed by those lucky few that have been selected for testing multiple times over the past years while their coworkers seem to always avoid the pleasure of providing a urine sample. Even though DOT testing has made random drug testing a frequent and familiar occurrence in the workplace, few employers and fewer employees understand the process. While you don't need to be a math whiz to run most random software, it's important you know enough to recognize when your program is "off the numbers." Here are a few things to consider in setting up and monitoring your random testing program.

Expected Odds and Probabilities

You can't know if you're on target if you don't know what the target is. Most random testing programs have an annualized rate or goal. The FHWA's minimum annual drug testing rate is 50% or 50 tests for every 100 people in the pool. Not all 50 tests will be performed on 50 different people. If you have a Simple Random Sampling with Replacement (SRS) pool with 100 individuals and a 50% annualized requirement, about 36 people will be tested once, 12 tested twice, and 2 lucky employees will be tested three times each year. (If you would like to see the odds for your pool, you can go to Compliance Software's website at www.compliancesoft.com and run the "Multiple Selection Worksheet".)

Valid Method for Selection

The method is the mathematical process used to select individuals for testing. The method that works best for DOT testing is SRS, which meets the regulatory requirement that each individual have an equal chance of being selected each selection period. SRS can be illustrated in the following example: Assume there are 52 people in a room. Also assume that 5 of the 52 need to be picked at random for drug testing. Take two decks of cards and shuffle them. From one deck pass out a card to each person in the room. Next, have a volunteer pick any 5 cards from the second shuffled deck. The five cards will match to five people holding the same cards from the first deck. These five have been "randomly selected" for testing. We can then have everyone turn in his or her cards and repeat the experiment again and again.

Cards are great in casinos but not so great for drug testing. Regulators and labor relations experts are more keen on computerized selection methods. Computerized methods can be audited and tested. And make sure that you use a computerized method of selection that has been validated by an expert with credentials that will satisfy legal scrutiny. Just saying that someone else is handling it at the infamous "arm's length" does little good in an arbitration.

Data Management

This is the curse of every random drug program manager. No matter how "random" your process is, you can toss it out the window unless the membership of each pool group is accurate each time a selection is run. Most employers, especially those with multiple locations or those subject to multiple random requirements (i.e. multi-modal DOT companies) have a difficult time a) identifying who needs to be in the pool, and b) providing that information in a timely fashion to the person running the random lists. If a pool has members that either should not be subject to testing or simply won't be available for testing in a given selection period, bias is introduced against the remaining members of the pool. This is one of the primary causes of multiple selection complaints. From a regulatory and deterrence perspective, everyone that has moved into a covered position should be available for selection no later than the next selection period. Conversely, everyone that has moved out of a covered position should be removed before the next selection to avoid pool group dilution.

Administration of Tests

While data management is a hassle, test administration is what gets most employers in hot water. Compliance and deterrence objectives are more easily achieved if there is sufficient attention paid to what happens after a list is generated. First, a set of criteria should be established (and religiously adhered to) for excusing random tests. At the end of the selection period, any tests not conducted can be excused. Remember, in random testing, the goal is to perform a given number of tests, not to hunt down each individual selected. Second, reconcile test results with the current list as much as possible before the next selection period which makes it easier to determine the "running rate" (something DOT cares about) and how many tests you will need in the subsequent selection. Third, the more evenly you spread testing throughout the year, the greater the level of deterrence. Keeping track of the numbers also pays off in reduced risk exposure and hard dollars saved from not doing more tests than you need to meet your program goals. And finally, remember that while random selection may be a science to those "in the business", it is an emotional process for those subject to testing programs. A little education goes a long way to make donors less suspicious of the process.

Eric Quilter is President and CEO of Compliance Software in Salt Lake City, Utah. You can reach him via email al equilter@compliancesoft.com or at (800) 647-9070 ext. 115.

The year 1998 produced fewer legislative changes than the preceding year 1997, which produce an abundance of expansive legislative changes. However, the 1998 changes confirm that the trend among the states is to promote and support employer efforts to maintain drug-free workplaces. Even the most restrictive states have loosened the ties that bound employers' attempts to use drug testing as a means to achieving drug-free workplaces. The two most significant changes this year include the revision of the Iowa testing statute and the enactment of the federal Drug-Free Workplace Act of 1998.

The Iowa revisions expanded an unduly restrictive and vague law. The law continues to be one of the more restrictive laws, by mandating a review by a medical review officer (MRO) and automatic rehabilitation for employees who have positive alcohol test results. However, the revisions broadened the forms of testing (pre-employment testing, reasonable suspicion testing and random testing) and provided clarifying language and structure to a formerly cumbersome law. Also, the Iowa law now provides protection against certain lawsuits for employers who comply with its statutory dictates. These changes are indicative of the statutory changes that have occurred in the last few years in the state legislatures, as legislators respond to employers increasing demands to ensure safe and productive workforces.

The Drug-Free Workplace Act of 1998 passed in October, due in part to the concerted efforts of DATIA. The 1998 Act promotes and encourages small businesses to implement drug-free workplace programs. The new law provides up to ten million dollars in grants to provide technical and financial assistance to small businesses. The law sets high standards that will ensure small businesses adopt effective drug-free workplace programs. Some of the mandates include the use of an MRO, access to employee assistance programs and continuing alcohol and drug abuse prevention education.

Another trend is the adoption of alternative drug-testing methodologies. (Alternative to the specimen and methodologies set by the federal guidelines.) Again, during the last several years the legislatures have responded to employer needs and industry advancements. The most rapid growth has been in hair testing and on-site testing. Four states, Arizona, Florida, Louisiana, Maryland and Utah have recently enacted or amended existing statutes that expressly permit employers to perform drug tests on hair specimens, which addresses employer concerns about invasive procedures. While another four states, Alaska, Idaho, Oregon and Maryland expressly permit an employer to conduct on-site testing, which addresses employer concerns about timeliness and flexibility. This upcoming year will undoubtedly reveal a number of new laws that will further address employer and industry concerns as legislatures continue to recognize the benefits of drug-free workplace programs.

Sandra DeBow, J.D., M.P.H. is an attorney whose professional career has focused on employment and labor law issues. She is a partner of Current-DeBow, a newly formed company that provides technical, legal and educational services to corporations, associations and providers in the drug-free workplace industry.

SBA Slow Moving on Workplace Bill

The Small Business Administration (SBA) says that implementation of the Drug-Free Workplace Bill may take longer than first anticipated. This means that the exact details of how drug-testing providers can apply for the money are not yet available. DATIA will get that information to all members as soon as it is available. Officials at the SBA said that they were not expecting that the Drug-Free Workplace Bill would pass Congress. When the bill was passed during the last days of Congress, officials were not prepared to move forward on developing the regulations and grant procedures. Currently, the SBA is looking at the bill and working out the details of the granting process and they will not give a definitive timeline for their issuance.

Although, DATIA was successful in having Congress recognize that applicants for these grants should not be excluded from using alternative specimens, there is not specific legislative language for their use. Instead, Congress says that SAMHSA certified labs and guidelines approved by the College of American Pathologists (CAP) must be used in the drug testing process. Labs approved by both of these organizations have the ability to conduct testing on alternative specimens. In addition, Congress said that they "do not want to discount the use of on-site testing kits if chosen as part of the drug testing program if all initial positives are sent for confirmation (by a medical review officer) and every attempt is made to ensure the privacy of the individuals whose samples were sent for confirmation."

SBA has said that they have not made any final decision on this issue, but will make every attempt to meet the intent of Congress when drafting these regulations. DATIA will keep you informed the minute any movement is made on this issue. See DATIA's website for additional information on the Drug-Free Workplace Act of 1998 at www.datia.org.

DATIA Requests Participation in CCF Review

The Substance Abuse and Mental Health Administration (SAMHSA) is creating a working group of users for the federal custody and control form (CCF) to develop changes and make revisions to the current form. DATIA has requested to be a participant in that process and will be seeking comments from members on recommended changes to the form. Changes to the form could make the form easier to use, make dissemination of the form more efficient, and ensure less room for mistakes. DATIA expects that one of the considered changes to the form will include converting it to an electronic format, which has been one of DATIA's recommendations. Approval of the form expires on July 31, 2000, so in order to make changes to that form, the working group will begin that process in early 1999. The first meeting is scheduled for mid-January 1999. SAMHSA has said, "it is essential that we begin the process of looking at ways to revise and/or improve the form"

Does Recent Approval of Medical Marijuana Affect You?

Recent approval by five states for use of marijuana as medication for certain medical conditions should not directly affect your drug-testing operations.

Employees who are drug tested may not use the new law as an excuse for testing positive of marijuana.
Officials from the Department of Transportation have said that workers in safety sensitive positions who test positive for any illegal drug may not, under any circumstance, use the new laws as a reason for the positive test. In the November election, Alaska, Oregon, Arizona, Washington and Nevada (with a second voter approval) have joined California and Arizona in authorizing the use of medical marijuana. When California and Arizona first passed their laws in 1996, the Office of National Drug Control Policy (ONDCP) and the Department of Transportation (DoT) issued guidance directly addressing this issue (see DATIA's website for the document).

Clearly, medical marijuana can not be used as an excuse for a positive drug test unless the Medical Review Officer (MRO) finds that it is a valid excuse. Drug-testing providers in the states that approved medical marijuana use should continue their operations following the same policies that they have had in place before the recent vote. As long as you follow the proper policies, your business will be protected.

Opiate Testing Level Raise Formalized December 1

The federal government formally raised the levels of opiate testing cutoff concentrations on December 1, 1998. Specifically, the changes to the mandatory guidelines will increase the initial and confirmatory testing cutoff concentrations for morphine and codeine from 300 ng/ml to 2,000 ng/ml. In addition, testing will also be required for 6-AM, a metabolite that comes only from heroine, when the confirmatory cutoff concentration is greater then 2,000 ng/ml. DHHS expects that fewer false positives will be detected with this change. For more information on this change, contact Dr. Donna Bush (301) 443-6014.

DATIA Member Sends Important Warning

Dear DATIA:

Some news on a new product that has come to my attention, and should be of interest to the DATIA membership due to the safety issues involved. It has been reported that a dry chemistry dipstick assay for creatinine utilizing the Jaffe method (i.e. picric acid/sodium hydroxide) is being offered to on-site testing facilities and collection sites. Because many individuals in this market are not trained chemists, I believe it is important to sound a warning concerning such a test devise.

Any dry chemistry dipstick using picric acid may present a potential explosion hazard. According to Merck Index, this compound "explodes when rapidly heated or by percussion." It recommends that 10 to 20% water be added to safely ship or handle the compound. Beware of any dipstick assay for creatinine that utilizes picric acid via classic Jaffe methodology.

Respectfully,
Jesse Carter
Vice President, Technical
Chimera Research & Chemical
Tampa, FL

Colleen, who is a member of DATIA's Board of Directors, is very active in voicing her opinions and concerns on drug and alcohol testing issues. With so many changes occurring in the industry, it is important for drug and alcohol testing providers to contact key industry and governmental decisionmakers to ensure that new legislation is favorable to the industry.

Earlier this year, Colleen aided DATIA in the passing of the Workplace Drug Testing Bill. She contacted Dirk Kempthorne, her then Senator and now Governor Elect, and voiced her opinions on the pending bill. Colleen made sure that his office was aware of why the bill was important, and why DATIA's recommended amendments were crucial to the future of drug and alcohol testing. Colleen followed up her phone conversations with letters to Senator Dirk Kempthorne and Congressman Mike Crapo.

After the bill passed, Colleen did not stop. She followed up with Mr. Crapo and Mr. Kempthorne to thank them for their support. This was crucial for Colleen's relationship with these decisionmakers in her area. Still working on behalf of the industry, Colleen made sure that her local media was aware of the bill's importance to the industry. She sent the press release prepared by DATIA on the bill to her local newspapers, radio stations, and television stations. Local newspapers and television stations that picked up the story interviewed Colleen regarding the grants allocated in the bill. Legislation occurring on the local level is also a focus for Colleen, who is currently working in her state to help pass legislation on workers compensation premium reductions for drug free workplaces. Colleen has also applied to serve as a member of Governor Elect Kempthorne's Drug Free Workplace Task Force.

DATIA commends Colleen for her efforts on behalf of the industry and hopes that others follow her lead!