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Inside This Issue:
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DATIA Generates Major Attention at Nation's Capitol
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| Outside the Hyatt Regency on Capitol Hill, more than 50 protestors rallied against student drug testing, while advocates gathered at DATIA's Student Drug Testing Implementation Workshop as the first step in an effort to focus on the resources available to schools for use in combating drug use in children and teens. DATIA hosted the one-day training workshop in order to provide schools and communities with the tools necessary to develop and maintain effective drug testing programs. At the workshop, Congressman John Peterson announced legislation that seeks to provide school districts with the necessary financial and technical assistance to develop and implement random drug testing policies. Peterson's |
legislation would authorize $100 million in grants and technical assistance to help schools develop and implement student drug-testing programs, and will assist school districts in utilizing funds available in the No Child Left Behind Act for student drug testing programs.
The legislation would provide basic guidelines for the funding to ensure accuracy of testing methods, confidentiality of student test results and records, and parental control. But because every community is different, local communities will be in the drivers seat when it comes to implementing their own random drug testing policy.
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DATIA Urges Members to Push for Increases in Funding for Drug and Alcohol Treatment, Testing, Prevention, and Education
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The time has come for Congress to make decisions on appropriations bills for the 2003 Fiscal year, and the White House has requested drastic cuts to many programs and agencies, which will affect the drug and alcohol testing industry. DATIA urges you to contact your local Senator and Representatives to request additional appropriations for drug and alcohol treatment, testing, prevention, and education.
Significant cuts have been requested for the Center for Substance Abuse Prevention and the Safe and Drug Free Schools and Communities Program. Your local Congressmen need to hear the importance that these prevention programs play in decreasing drug and alcohol abuse across the nation especially now that the White House Drug Policy places emphasis on reducing the demand for illicit drugs. Without these important funds to counter and prevent illicit substance use, the problem will only continue to worsen. Specifically, funding for the Safe and Drug Free Schools and Communities Program, which can be used to test school children for the presence of illicit substances and provide education and prevention efforts, needs to be increased now that schools are authorized to expand their testing programs to students participating in extracurricular activities.
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In addition to your requests for increased funding for those programs where requested funding has been decreased, your support of programs with requested increased funding is imperative to ensure that these increases remain in the final approved budget. Increases have been proposed for the Center for Substance Abuse Treatment and the National Institutes on Drug Abuse and Alcohol Abuse and Alcoholism. This increased funding is necessary to provide adequate treatment to those with alcohol and drug addictions, as well as to research the diseases in order to provide more effective treatment and prevention.
We urge you to contact your local Congressmen to fight for increases to the Center for Substance Abuse Prevention and the Safe and Drug Free Schools and Communities Program budgets, and to support the requested increases to the Center for Substance Abuse Treatment and the National Institutes on Drug Abuse and Alcohol Abuse and Alcoholism.
These budget increases will not be possible without your support. Congressional staff members have indicated that this is a very tough budget year and grassroots connections will be necessary to support programs in gaining increased funding.
To contact your local Representative visit www.house.gov, and to locate your local Senator visit www.Senate.gov. On behalf of the industry, DATIA appreciates your support in working to increase this much needed funding. If you have any questions or need further information, please contact DATIA at info@datia.org or 800-355-1257.
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It’s The Law: Are State Laws Inconsistent with the Federal Drug-Testing Scheme Invalid?
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| By Tom Eden & Michael Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C. |
Has Congress preempted drug and alcohol testing for DOT regulated commercial drivers covered by 49 CFR Part 382 so as to render invalid the laws or regulations of California, Oregon, and Washington (or similar laws that may be adopted by other states) that are inconsistent with the federal Omnibus Transportation Employee Testing Act of 1991 (OTETA) and the DOT regulations promulgated under OTETA? It appears that is the case. Although confidentiality safeguards are the first casualty, such inconsistent state laws place employers, Medical Review Officers (MROs), third party administrators (TPAs) and other service providers subject to regulatory and statutory penalties, and unnecessary litigation, when they must chose to disregard certain regulatory mandates so as not to violate state statutory requirements.
The states of California (SB 871 as it amended the Calif. Vehicle Code), Oregon (ORS 825.410), and Washington (RCW 46.25 amended) have enacted laws, which appear to conflict with OTETA or the regulations issued under OTETA in 49 CFR Part 40 and 49 CFR Part 382 by, among other things, requiring the forwarding of test results to a state agency, requiring a pre-employment alcohol test, requiring “pre-employment” testing of independent contractor owner-operators who are considered “employers” under federal law, making a motor carrier that engages an owner-operator responsible for the owner-operator’s compliance, and various other laws governing use of drug and alcohol test results of DOT regulated employees.
Under the Supremacy Clause (U.S. Const. art. VI, cl. 2), Congress has the authority to preempt state law in areas where Congress has power to regulate. Preemption will be found only in those situations where it is the clear and manifest purpose of Congress. OTETA mandates: “No State or local government shall adopt or have in effect any law, rule, regulation, ordinance, standard, or order that is inconsistent with the regulations issued under this section . . . .” This provision seems to indicate a congressional intent to preempt state laws that are inconsistent with regulations issued under OTETA.
The disclosure provisions of the California, Oregon, and Washington laws that are inconsistent with the OTETA regulations in Part 40 and Part 382 violate the confidentiality protections of the federal regulatory scheme, thereby upsetting the delicate constitutional balance under the Fourth Amendment. In Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989), the U.S. Supreme Court noted with approval the regulatory procedures similar to those under OTETA that were designed to protect the privacy of each donor, including the limited number of individuals to whom records could be released, and the Court held that the regulatory scheme of testing did implicate the Fourth Amendment even though the testing was conducted by private entities because the government was encouraging, endorsing, and participating in the testing scheme.
Additionally, the disclosure requirements force a choice for Service Agents and Employers between complying with the state law or complying with the federal law, because the state law requires disclosure to specified agencies and categories of individuals, whereas the federal law only permits certain disclosures, and the ones required by the state laws are not authorized. A few of the DOT regulations that are violated by the state mandated disclosures include: 49 CFR Part 40.321 (general confidentiality requirements of all service agents); 40.331 (release to additional parties and DOT Agency officials); and 40.351 (confidentiality requirements apply to service agents). |
Thus, it appears there is a significant possibility that a Regulatory Authority of the United States Government, or a court, would find the inconsistent disclosure provisions of these states’ laws invalid and preempted by OTETA. The federal drug and alcohol test program is a delicate balance between the need to maintain safety and the donor/CDL holder’s right of privacy. It was not intended to “penalize” rule violators, but to correct their behavior and bring them into compliance with the DOT safety rules. These state laws irreconcilably conflict with the federal scheme, are due to be found preempted pursuant to OTETA, and, therefore, invalid and unenforceable.
DOT has indicated they have concerns and will be reviewing the issues raised by these state laws in order to provide guidance to employers and service agents mandated by CFR 49 Part 40. DATIA believes this is an opportune time for members to voice their concerns to DOT by writing letters to DOT’s Secretary Norman Mineta or the Acting Director of DOT’s Office of Drug and Alcohol Policy and Compliance, Ken Edgell at The Office of the Secretary, Room 10403 (S-1), 400 7th St., SW, Washington, DC 20590.
DATIA Newsletter Correction: In the June/July 2002 Issue of DATIA News, in the "It's the Law" column on page 6, the organization involved with the Delta Airlines case was listed incorrectly as "LabCorp." The organization involved with the Delta Airlines case was "LabOne."
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).
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).
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DATIA’s Officers Announced
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| DATIA would like to congratulate its 2002-2003 board officers including Dean Klassy as Chairman, C.B. Thuss, Jr. as Vice Chairman, Terri Nones as Secretary, and Hank Braner as Treasurer. |
These exceptional DATIA members will serve as the association’s executive committee. We congratulate them on their outstanding achievement!
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DATIA Commends Major League Baseball’s Decision to Drug Test and Urges Proper and Credible Program Be Developed
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DATIA commends Major League Baseball (MLB) and the Major League Baseball Players’ Association for deciding to implement a drug testing program for MLB players, and urges that the planned testing program be implemented in such a way to ensure maximum accuracy and credibility.
DATIA has been highly supportive of measures by Congress that target MLB in an effort to curb illegal steroid use by players, and strongly believes that a drug testing program is a key component of deterring steroid use in sports. Addressing drug use in baseball sends a clear message to our children that steroids are illegal and morally offensive to America’s competitive spirit, and allows the public to refocus on the athleticism of our nation’s pastime.
Since the parameters of the program have not yet been decided on between the owners and the players, DATIA urges that drug testing of MLB players should be conducted by an independent body outside the scope of baseball, which does not have a conflict of interest between MLB players, coaches, owners, and agents. Using an independent third party to conduct drug testing ensures consistency and objectivity in drug testing and maintains the integrity of the drug testing program. Furthermore, DATIA strongly encourages MLB to utilize Medical Review Officers to validate drug testing results and third party testing providers who are knowledgeable on the standards of an effective drug testing program.
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Recently, DATIA submitted a letter to Congress concerning the issue of drug testing in MLB. DATIA’s position illustrated that many professional sports organizations already have implemented drug-testing programs, including the National Football League (NFL) and the National Basketball Association (NBA), who has had a drug-testing program in effect for more than 15 years. The NBA, NFL and Minor League Baseball tests for steroids and other performance enhancing drugs, and DATIA believes that MLB should also be drug testing their players.
DATIA pointed out that the general public is in support of drug testing in MLB. Nearly 80% of baseball fans surveyed in a USA TODAY/CNN Gallup Poll believe steroids have contributed to the offensive explosion in the major leagues in recent years. Furthermore, 86% said testing should be done for steroids or other performance-enhancing drugs.
Congress urged MLB to adopt a mandatory drug testing program. They declared that a rampant, systemic steroid abuse hangs over a game that we love, stating that “It is our belief the only way to send the right message to the public and to protect the integrity of the game is to institute mandatory drug testing.”
DATIA will continue to keep you updated on drug testing in MLB as the testing program develops.
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Employees Working for Small Businesses in Trucking and Maritime Industries Have Highest Incidence of Drug and Alcohol Use
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Since the Department of Transportation’s (DOT) chemical testing program for safety-sensitive employees began in 1989, a simple question needs to be asked on a regular basis: how effective is the mandated drug and alcohol testing program for transportation employers?
The most recently released statistics indicate that positive rates continue to be significant, in two of the six DOT Agencies: the Federal Motor Carrier Safety Administration (FMCSA) and the United States Coast Guard (USCG). With drug and alcohol testing firmly established for safety-sensitive jobs, it is clear that for some percentage of the working population, the allure of using drugs outweighs the risks of being detected as a drug user, with the negative effects of such a discovery including the loss of one’s livelihood. Despite this, testing rates continue to be significant in the trucking and maritime modal agencies compared to the other transportation modes. The FMCSA reported the highest positive random testing rate of 2.0% and USCG published the second highest rate of 1.8% of all the transportation agencies.
What do high positive random testing rates suggest about employers and employees in the federal motor carrier and maritime industries?
First, it must be noted that the FMCSA and the USCG cover the most employers and employees working in the transportation industry, constituting more than 660,000 employers and over 7.4 million employees. The number of employers in these two modes combined make up over 98% of all modal employers and the number of employees comprise over 90% of all modes of transportation. Employers in FMCSA and the USCG consist largely of owner/operators and small businesses with an average of 11 employees per employer. Because employees working in FMCSA and USCG report such high positive random testing rates and these employees make up such a large part of the entire transportation industry, it is apparent that substance abuse and compliance are serious issues in these two agencies.
Despite DOT’s drug and alcohol testing rules requiring safety sensitive employees to stay drug free and the stringent requirements for employers to implement drug and alcohol testing programs, positive testing rates remain high, suggesting that many employed in these two agencies use drugs. Also, such high rates could indicate that many small businesses in these agencies may not be running drug programs as required by DOT rules.
Effectiveness is difficult for policy analysts to discern. Employers have been using drug and alcohol testing as part of an overall plan to increase safety in the workplace for more than a decade. Since the drug and alcohol testing program began, only two of the six agencies have ever seen a significant decline in positive rates to allow them to lower their random testing rates. In 1995, the Federal Aviation Administration (FAA), and in 1997, the Research and Special Programs Administration (RSPA) reduced their random testing rates for covered employees from 50% to 25%, and they currently remain at 25%.2 Since positivity rates have remained the same for most agencies, there continues to be a core level of employees in safety-sensitive positions who continue to use drugs.
Reviewing the results from the 1999 Drug and Alcohol Testing Survey conducted by FMCSA’s Data Analysis Division, only 67% of motor carriers have random testing programs. FMCSA also reports that many FMCSA employers have no drug and alcohol testing program in place. Because not all FMCSA employees participate in drug and alcohol testing programs as required by the DOT regulations, the positive testing rate could be even higher, for not everyone is currently tested.
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Unfortunately, the agencies, including FMCSA have few resources to audit and ensure that companies’ drug and alcohol testing programs are in compliance with DOT rules. With such high positive testing rates indicating the seriousness of substance use in these two agencies, there needs to be more oversight and agency enforcement. The drug and alcohol testing industry has consistently requested more oversight and enforcement so drug and alcohol testing providers can target FMCSA- and USCG-covered employers as potential clients and bring them into compliance.
Another alarming fact is that because of the transient nature and seasonal job availability of the motor carrier and maritime industries, it is common for employees to work for more than one employer and to switch jobs frequently. Without a central database to record those employees who have tested positive, it is relatively easy for an employee to avoid the return to duty process.
Therefore, while the two Agencies have the highest positive testing rates, they also have the highest probability of employers not following the correct procedures to return to safety-sensitive duties. Habitual drug users who choose to not seek treatment and instead move on to another employer could be contributing to these higher positive testing rates by potentially testing positive more than once per year.
Excluding the FMCSA and USCG, the other agencies reported much lower positivity rates for drug use. The Federal Transit Administration (FTA) reported a rate of 1.1%, followed by the Federal Railroad Administration (FRA) publishing a rate of 0.8%. The FAA’s positive random testing rate was 0.7% and RSPA had the lowest positive random testing rate for 2000 at 0.6%. These modes are made up of larger companies, resulting in fewer employers and much lower positivity rates for substances of abuse.
Do larger companies have more resources and dedicated staff that help run more effective drug and alcohol programs? More study needs to be done in this area, but there are several reasonable explanations, including that larger companies may be better equipped and staffed to more efficiently maintain compliance with DOT drug and alcohol testing rules. Also, larger companies may be better positioned to institute substance abuse education for their employees that stress the importance of staying drug free when working in a safety-sensitive position, and may tend to have informal yet well-developed “grapevine” communications among the workforce.
This communication may be more likely to transmit the fact that a fellow employee has been removed from duty or was dismissed, and thereby reinforce the deterrence effect of drug and alcohol testing. Furthermore, larger companies may tend to employ proportionately more full-time employees and rely less on transient and part-time workers.
Overall, drug and alcohol testing is effective to the extent that it removes drug abusers from safety-sensitive positions. However, as the statistical evidence mounts, it is clear that some modes have been more effective than others in reducing the incidence of drug use among safety sensitive workers. The industries where rates remain highest have been less successful in reducing drug usage, which many in the industry attribute to lax enforcement and industry structure.
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DATIA Attends Meeting on Electronic Transmission and Storage of Drug Testing Information
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Recently, the Department of Transportation held the first meeting of its newly established Electronic Transmission and Storage of Drug Testing Information Federal Advisory Committee. Representatives from DATIA member companies participated in the meeting as committee members (Barry Sample - Quest Diagnostics Incorporated, Karam Bedros- MedTox Laboratories, Michael Feldman - Northwest Toxicology, Inc., Neil Fortner - PharmChem, Inc., Eric A. Hess - U.S. Investigative Services, Eric Quilter - Compliance Information Systems, Lisa D. Tarnai - Scientific Testing Laboratories), and Laura Shelton attended the meeting.
Don Shatinsky, DOT, charged the committee with the task of developing the minimum standards for Medical Review Officers, Employers, and Service Agents in transmitting drug testing information electronically. The committee was not charged with creating a “paperless laboratory” or a totally paperless system. Barry Sample, Committee Chairman, further specified that standards need to be developed for data format, record layout, transmission method, transmission security, electronic signatures, and storage security.
Current laboratory procedures for transmitting data electronically were discussed first, with laboratories reporting that multiple electronic record types were currently being used in addition to fax and mail. Many laboratories use more than one type depending on what information the client wants, and more often than not mandated testing and non-mandated testing records are transmitted differently.
Laboratory, employer, and service agent representatives made comments that there is a need for consistency in the transmission of drug testing information. It was also stated that codes used by laboratories for types of test performed, and test results should be made uniform. Since most service agents work with multiple labs, this consistency will enable the service agent to more efficiently receive the results and report them to the employer in a timely manner.
Medical review officers reported on how they currently receive results electronically and report the verified results out. While some MROs utilize very few electronic means, others utilize the technology extensively. For this reason, the guidelines for electronic transmission of results need to make the process easy to use and cost effective. Many comments spoke on how, unlike large laboratories, MROs may not have in-house computer support personnel or the financial ability to install expensive software and hardware necessary for the electronic transmission of results.
One suggestion was for the laboratories to create web based data files where MROs could retrieve test file, thereby requiring MROs only to have a computer with web access. Not related to the specific task of the meeting, it was interesting to note that the MROs in
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attendance reported that approximately 15% of the CCF Copy 2s required to be sent to the MRO within 24 hours or the next business day following a collection never make it to the MRO’s office.
Concerns to be dealt with from an employer’s perspective included making the process flexible to allow employers the ability to receive test results electronically, making the process work for both non-mandated and mandated test results, providing clear and concise instructions on the process, and making the guidelines part of the CFR 49 Part 40 regulations. By adding the guidelines to the regulations, the process easier will be easier for unions and employers to accept. In addition, employers want to make sure that the guidelines for record storage take into account the DOT and modal requirements for audits. Finally, employers want to ensure that the original CCF does not disappear. Should problems arise, that original document is key to defending the drug and alcohol testing process and chain of custody.
In using electronic means to transmit drug-testing information, many items need to be considered for all participants. As far as legal issues are concerned, the electronic transmission process must: (1) provide proof that the communication was received, (2) accurately identify the person sending and the person receiving the communication, (3) provide proof of the intent and nature of the record, (4) contain the complete content of the communication, (5) prove that the transmission was not altered, and (6) be retained and be available. To provide for all of these requirements, information presented during the committee meeting pointed to the use of Public Key Infrastructures (PKI) as the preferred electronic security methodology.
The question arose as to whether positive results and negative results needed to be transmitted utilizing the same level of security, and the committee agreed for the most part that they must follow the same procedures. First of all, negative results may contain other information such as the fact that the negative result was for a follow-up test. Secondly, what if an unauthorized person intercepted the results and through deduction (i.e. John Doe reported for a random test along with 10 other employees, all were reported on the negative report data file except for John Doe) determined that an employee must have tested positive. Thirdly, standard operating procedures whereby employees always utilize the same procedures further reduces the chance for error.
During the final portion of the meeting, the committee formed sub-committees that will work on specific areas and report back to the committee. The full committee will meet again in late September. The sub-committees are (1) Data Elements and Record Layout, (2) Digital Signatures and Security of Transmission of Drug Testing Information – chaired by Eric Quilter, (3) Security and Storage of Drug Testing Information – chaired by Neil Fortner.
A transcript of the meeting and all presentations made will be posted on the DOT’s docket along with any comments received from the public. To view the docket go to http://dms.dot.gov/search and search for docket number 12148. DATIA will keep you informed as progress is made on this issue.
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