March 6, 2002
Mr. Kenneth Edgell
Acting Director
Office of Drug and Alcohol Policy and Compliance
U.S. Dept. of Transportation
400 Seventh St., S.W.
Washington, DC 20590
Dear Ken:
In DATIA’s previous letter of January 24, 2002, concerning the problems encountered by employers when employing safety sensitive employees who concurrently work for other covered employers, we stated that the problem was larger than the Department of Transportation (DOT) has indicated. To show how this problem permeates the drug and alcohol testing industry, DATIA conducted a survey of its members. I’d like to take this opportunity to share the results of our members' feedback with you and discuss the situation further.
In addition, after reviewing the rules of the Federal Motor Carrier Safety Administration (FMCSA), DATIA found that there is current language allowing for and requiring the sharing of drug and alcohol testing information amongst employers who “use” a driver’s services. As DOT seeks to harmonize the rules among the modes to create One DOT, I believe the combination of DATIA’s survey and this FMCSA language underscores the urgent need for a working group on this issue.
The enclosed survey was sent to DATIA’s 1028 members, of which 789 have indicated to DATIA that they perform collection and/or consortium services for employers mandated by DOT regulations. Of these, 180 responded to the survey (23%).
The first question posed to our members was “Are you aware of covered employees in your drug and alcohol testing program that are also concurrently employed by other DOT covered employers?” The majority of respondents (61%) are aware of this situation within their program. The majority of the respondents (69%) say that these employees represent 0-5% of their pool, while 13 % indicate they represent 6-10%, and 15% indicate that these employees with concurrent employers account for greater than 10% of their pool. Of the greatest significance is that the 180 respondents to the survey alone can account for 4,497 client companies affected by employees working for them while also working for other covered employers. In the DOT’s listening sessions on the new Part 40 regulations, it was stated that there are approximately 673,413 employers within the DOT’s regulatory scope. Using very conservative numbers based on our survey, over 30,000 employers are affected by this problem. While that number may be insignificant to the DOT, it is not insignificant to the affected employers and service providers.
Other than statements that blanket releases are prohibited, there has been no clear guidance from the DOT on how to deal with the issues surrounding the drug and alcohol testing of employees who work for multiple employers.
Those responding to the survey have multiple ways of reporting these test results and many use multiple means. For example, 51% require the employee to be in each employer’s program and 24% enroll the employee in only one program and report the results to all employers.
Although not official guidance, a DOT representative recently stated in an industry publication that the DOT drug and alcohol-testing program is an employer based program and that employees need to be in each employer’s program for which they work. It is DATIA’s understanding that the DOT drug and alcohol testing programs were developed to ensure the safety of the American public. It is not merely the employer that could jeopardize this safety, but also the individual employees whose actions are daily impacting the safety of America’s transportation.
To look at this situation from the viewpoint of an employer based system as the DOT does, it is DATIA’s opinion that common sense would dictate allowing employers to have full access to their employee’s drug and alcohol-testing records regardless of which DOT covered employer initiated the test. As DATIA has previously pointed out, these tests are available to other employers once the employee has left an employer, why not while the employee is still employed by the employer? To prohibit this information from all current employers makes no sense, and allowing all concurrent employers access to the results of all DOT mandated drug and alcohol test results for their employees does not compromise confidentiality. Further more, §382.301 (c) (2) of the FMCSA regulations require employers who use, but do not employ, a driver more than once a year to gain testing information from the driver’s testing program at least every six months to include violations and testing results. While this portion of the FMCSA regulation deals with the exemption from performing pre-employment testing, it does authorize and actually require the ongoing release of drug and alcohol test results between multiple employers. Furthermore, DATIA is not aware of any problems with confidentiality that have been encountered through this process. It appears from the difference in DOT’s views and regulations that there is a difference between employees who are employed by multiple employers and those that are used by multiple employers, however, DATIA is unsure of how this difference provides more need for confidentiality for those employed rather than used?
DATIA is hopeful that the DOT takes this situation seriously and develops the working group that DATIA has requested. DATIA, along with its members and other industry alliances, have numerous suggestions for solving the problems associated with this situation. Our goal is to work amicably with the DOT to enact meaningful and user-friendly regulations that make drug and alcohol testing programs effective and less burdensome for employers and service agents. We understand that this will be a long process to satisfy the public’s, DOT’s, and the industry’s interests, however, DATIA is positive that a workable solution can be established.
I welcome the opportunity to discuss this with you further, and look forward to a chance to meet or talk via telephone to start the process of working towards a solution. Please feel free to contact me at 703-548-0901 or lshelton@datia.org prior to my follow-up with you.
Sincerely,
 |
Laura E. Shelton
Executive Director
CC: Norman Mineta, U.S. Secretary of Transportation
Michael P. Jackson, U.S. Deputy Secretary of Transportation
