ISSUE:
Small employers in the transportation industries (marine, air, rail, road) may face an increased regulatory burden if a proposal from the Department of Transportation is adopted to restrict their ability to use "third party administrators" to perform drug and alcohol test result reporting.
BACKGROUND:
Ever since the U.S. Dept. of Transportation in 1989 mandated drug and alcohol testing for employees in "safety sensitive" positions, employers, especially small enterprises, have relied upon the value-added services provided by consortia and third party administrators (C/TPA).
The C/TPA offers full regulatory compliance with drug and alcohol testing, analogous to a payroll service provider. Consortia and third party administrators assist the business community and maintain public safety by implementing a compliant drug screening program, administering the entire screening process, reporting results, maintaining records, guiding the employer through the employee sanctioning process, and assisting in seeking substance abuse treatment. Without C/TPAs, many small businesses (and a surprising number of larger businesses) would find it very difficult to implement a compliant drug and alcohol screening program for their employees, much less be knowledgeable of the additional procedures required when an employee tests positive.
THE DOT PROPOSAL:
On December 9, 1999, DOT issued its much anticipated Notice of Proposed Rulemaking (NPRM) to revise the drug and alcohol testing program regulations found at 49 CFR Part 40. In it, DOT seeks to codify the language from a previous 1995 guidance that would prohibit the C/TPA from acting as the agent of the employer in receiving test results, forcing the Medical Review Officer (MRO) to report test results directly to the employer. This arrangement would be fraught with the potential for misunderstanding, error, and delay.
Under the DOT NPRM, the burden of receiving test results and agency reporting of positives would be put on the small employer, causing likely delays and mishandling of safety related information. Currently, many C/TPAs receive test results from the MRO on behalf of the employer. This ensures that positive drug test results are reported directly to the federal agency, the employee is removed from safety sensitive duties, and that proper information is provided as to the rules before the employee can return to work. None of these steps is likely to occur if a positive test result is reported directly from a doctor to the single operator or small business.
Current DOT regulations, in effect for 11 years, clearly define the C/TPA in the same definition as the employer, allowing the C/TPA to receive test results. 49 CFR part 40, Section 40.3 define the "Employer. An entity employing one or more employees that is subject to DOT agency regulations requiring compliance with this part. As used in this part, employer includes an industry consortium or joint enterprise comprised of two or more employing entities." [Underlining added] This means that the MRO may report results directly to the C/TPA because they are acting as the "agent of the employer." This arrangement is critical in that it ensures compliance among small companies and owner-operators. For example: a small trucking company employing five drivers does not have the expertise, time or resources to administer any part of the complex drug-testing program required by DOT. The revised December 9 proposal would no longer include "consortium" as part of the employer.
ACTION REQUESTED:
DATIA is seeking Congressional assistance to ensure that DOT clearly defines and maintains the role of consortia and third party administrators as "agents of the employer" as it rewrites 49 CFR Part 40. DATIA believes that this can be accomplished by one of the following methods: allowing C/TPA's to continue acting as "agent of the employer" for those business entities with 50 or fewer employees; or, allowing C/TPAs to continue acting as "agent of the employer" for all business entities.
DATIA is requesting your assistance by writing to Secretary of Transportation, Rodney Slater urging him to clearly define the critical role played by consortia and third party administrators in the DOT mandated drug and alcohol testing program as an "agent of the employer." In addition, we are asking you to contact Rep. Bud Shuster, Chair of the House Transportation and Infrastructure Committee, requesting his intervention on behalf of the drug and alcohol testing industry.
CONCLUSION:
Over 80% of DATIA's 1,100 members provide C/TPA services. There are approximately 2,500 consortia in the U.S. helping businesses both large and small comply with mandated drug and alcohol testing rules and, therefore, protecting the safety of the general public. To eliminate the critical role of intermediary provided by C/TPA's would force businesses to more closely deal with a bureaucracy that is adequately and professionally assisted by C/TPA's; increase the risk of misunderstanding, error, delay, costs and danger to the public; and, effectively eliminate an entire professional industry that has been serving the interest of public safety for 11 years.
