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DOT Responds to DATIA's Letters Regarding
Multiple Employers
March 29, 2002
Ms. Laura E. Shelton
Executive Director
Drug & Alcohol Testing Industry Association
1600 Duke Street
Alexandria, VA 22314
Dear Ms. Shelton:
Thank you for your letter of January 24 and March 6 concerning the U.S. Department of Transportation's (DOT) drug and alcohol testing program.
The Department has addressed the issue of sharing drug tests results between employers on more than one occasion over the past two years. In our Notice of Proposed Rulemaking (December 1999), we initially raised the issue of Medical Review Officer (MRO) reporting to other employers when the MRO had personal knowledge of an individual being employed, or seeking employment, in a safety-sensitive job subject to DOT agency's drug testing rules. While DATIA was silent on this subject during the comment period, the issues you bring up now were brought up then, and we did get enough comments in opposition to cause us to drop the proposal.
In our final rule ( December 2000), as an alternative, we added the requirement for all gaining employers to query previous employers for drug and alcohol test information prior to hiring anyone into a safety-sensitive job througout transportation. You have pointed out that employees may "selectively omit" employers where they tested positive. This is a possibility; in fact, nothing in our rule can assure that everyone tells the truth.
Secretary Mineta also responded to your letter of November 2001, which applied to release of this information directly by employers without employee consent. He wrote: Confidentiality is a cornerstone of the balance between safety and employee privacy that is crucial to the accpetance and constitutionality of the testing program. This concept is fundamental to the Department's program, not a "loophole".
At this point in time I am not in favor of establishing a working group to study and determine the best possible solution to this single issue. The formation of a working group would have to follow a formal process defined by the Federal Advisor Committtee Act. The FACA setup process is very time consuming, the scope of the Committee is generally very narrow, and the lifespan is finite. However, I will discuss your proposal with the Drug and Alcohol Program Managers at our April meeting and get their opinion before making a final decision. If pursuing a working group is not recommended, maybe we can come up with a suitable alternative. At the same meeting, we will also be discussing the results of the survey that you provided in your March letter. Be assured that we appreciate your suggestions and take a serious view of issues you pose.
If I can be of further assistance, please do not hesitate to contact me.
Sincerely yours,
Kenneth Edgell
Actine Director
Office of Drug and Alcohol Policy and Compliance
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