NTSB and Industry Agree that Drug and Alcohol Testing Background Verifications Fail: National Database Is the Solution
FOR IMMEDIATE RELEASE
Contact: Laura E. Norfolk
DATIA, Executive Director
800-355-1257
Alexandria, VA, September 27, 2001: On September 10, 2001, the National Transportation Safety Board (NTSB) released a Safety Recommendation (in PDF) highly critical of the Department of Transportation’s (DOT) background verification regulation, known as 49 CFR Part 40.25, echoing other industry critics of the regulation. “The failure marks given to the DOT drug and alcohol testing background verification requirement are consistent with the position of the American Trucking Association (ATA) and labor groups, who all urge, along with the Drug and Alcohol Testing Industry Association (DATIA), that a national database be substituted for the failed §40.25 as soon as possible,” stated DATIA’sexecutive director Laura E. Shelton.
This background verification provision was recently expanded to all transportation modes, having been in effect for only the Federal Motor Carrier Safety Administration (FMCSA) for the past five years. An open comment period for one industry (maritime) generated unanimous opposition to the rule by affected employers, but DOT moved forth to implement the new rule effective August 1, 2001. Mrs. Shelton stated, “The NTSB study illustrates and vindicates the concerns of the industry about the ineffectiveness of §40.25, and that a national database could have helped avoid a major accident.”
In the Safety Recommendation to the FMCSA, the NTSB stated, “This investigation found that no mechanism exists for identifying drivers who have tested positive for drugs.” (The background verification provision was in effect for FMCSA at the time of the accident). The investigation of the May 22, 1999 bus accident that killed 22 passengers and injured many more revealed that: (1) When the driver applied for the position, he omitted two employers, in which he had been dismissed for testing positive for marijuana, and (2) The employer sent requests for prior drug and alcohol testing information to the two employers provided on the driver’s employment history, both of which were authorized by the bus driver. However, the employer did not receive a response from either company.
In light of these findings, the NTSB found three key problems with the background check provision. The first problem was that the driver was able to avoid negative scrutiny from his employer by omitting parts of his employment history. In regards to the new requirement for prospective employers to ask applicants if they have a prior positive test result, the NTSB stated, “The Safety Board does not believe this self-reporting method will effectively identify problem drivers because drivers are unlikely to provide information that may limit their employment opportunities.”
The second problem revealed by the investigation was that although the employer obtained the driver’s permission to investigate his employment history, it did not receive a response from any of the former employers it contacted. The third problem identified was that no enforcement mechanism
or incentive existed to compel previous employers to comply with information requests.
The NTSB summed up their findings by stating that “because employees are unlikely to divulge positive drug test results and because prospective employers may not have sufficient employment history or the authority to obtain information from previous employers regarding positive drug tests, the Safety Board concluded that results of tests for controlled substances performed under the U.S. Department of Transportation testing guidelines, even when positive, are often not available to prospective employers, making it difficult for them to make well-informed hiring decisions.” The NTSB also concluded “that the current Federal drug testing regulations cannot adequately identify owner-operators who abuse controlled substances.”
These problems with background checks are not new and are not limited to rare occurrences. ATA, which represents every type and class of motor carrier in the country, refers to these problems as common knowledge. DATIA has addressed these problems in detail to the FMCSA and the DOT on multiple occasions via official letters and comments.
Even with the large amount of opposition to the provision, coupled with the knowledge that the provision is not working as FMCSA intended, it is now a requirement for all DOT-covered safety-sensitive employers. With the new requirement to perform background checks on all DOT covered-employers, however, DATIA’s focus shifted to not only advocating the establishment of a national database for drug and alcohol test histories, but to support the elimination of the current background check provision. If the provision isn’t working, it is simply an unneeded burden for service agents and employers with minimal safety benefits for the transportation industry. DATIA will keep its members and the industry informed as we continue to move forward on this issue.
DATIA was founded in 1995 and has grown to represent over 1,000 members including collection sites, consortia, third party administrators, laboratories, medical review officers, substance abuse professionals, and testing equipment manufacturers. DATIA works closely with key policy makers in Federal Agencies and in Congress to ensure that the interests of the industry are heard and taken in to account when changes are proposed in drug and alcohol testing rules. DATIA works to ensure that these changes foster rather than hinder growth.
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