August 8, 2001
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:
This letter is a follow-up to the Drug and Alcohol Testing Industry Association’s (DATIA) previous letter of April 9, 2001. In that letter, DATIA posed multiple questions to the DOT concerning areas of confusion and frustration for industry professionals within the new CFR 49 Part 40 regulations. I reviewed the recently posted Technical Amendments to CFR 49 Part 40 with great interest in hopes of finding the answers to these important questions. Some were addressed in detail; however, many were not addressed at all. I’d like to take this opportunity to readdress these issues so that industry professionals can be confident they are complying with the spirit and letter of the new DOT regulations.
1. The first issue addresses collector proficiency demonstrations. The required training and proficiency demonstrations are outlined in 40.33 along with the requirements for the monitor of the proficiency demonstrations in 40.33 (c) (2). There remains confusion as to whether the monitor needs to perform the required proficiency demonstrations as well, and, if so, who is to monitor the monitor? While the amendment states that the monitor must receive qualification training and must be a “qualified collector”, they do not specifically address whether the monitor must also perform proficiency demonstrations, and if so, who will monitor the monitor. If a “qualified collector” is a collector who has met the qualification training AND proficiency demonstration requirements, then who will be the first qualified collector to monitor other collectors? As you can see, 40.33 (c) (2) leads to a “chicken and egg” scenario. The consensus view among DATIA members is that if the monitor has met the qualification training requirements and monitor criteria, then he/she should not have to perform the proficiency demonstrations also. It is not feasible for a collector to qualify as a monitor if a qualified monitor must also monitor him/her.
2. In cases where companies contract with a C/TPA to implement and manage their drug and alcohol-testing program, it is imperative that the C/TPA receive the employer copy of the CCF, and that the MRO has the C/TPA contact information for proper delivery of test results. DATIA took this position in our letters to you on April 9, 2001 and July 13, 2001. While the technical amendments published July 31st regarding contact information was changed to indicate that the employer address is not required on the CCF, but the employer fax is required, DATIA believes that some may misinterpret this to mean that if the employer CCF is mailed it will to go to the C/TPA, but if it is faxed it will go to the employer. Since the regulations continually advise service providers to “fax or otherwise transmit” the CCF, DATIA believes most CCFs will be faxed. Since the new regulations require the EMPLOYER’S fax number to be included on the CCF, we believe this will lead many collectors and MRO’s to fax the CCF and results to the employer, not the C/TPA, despite the employer’s desire to outsource this function to the C/TPA. We again request that, as a solution, the C/TPA’s name and contact information be listed on the CCF and that the employer need only be identified by an account ID number on the CCF. This of course would be for those employers who utilize a C/TPA and who have elected to have the C/TPA receive the test results – employers who manage their program in house will continue to include the employer information only on the CCF.
3. The issue of who is responsible for notifying a collection site of a canceled test so that the required error correction training could take place was not addressed in the amendments. Since many collection sites are not privy to test results, should the MRO notify them of canceled tests, or should this responsibility be with the employer or C/TPA? Without a clear responsibility for this required action, DATIA believes that serious noncompliance in the area of error correction training will most definitely occur.
4. Another item not addressed in the amendments concerns whether a C/TPA administrator who is hired by an employer as an “independent” safety consultant can perform the duties of the Designated Employer Representative if the employer has contracted with him/her to execute all aspects of the company’s safety and drug and alcohol testing program? While this is not a widespread practice, both employers and C/TPA principals have presented the situation to DATIA and request clarification.
5. In DOT’s response to comments on the pre-employment inquiry requirement, the DOT states “If an employee tests positive for Employer A, quits or is fired, and them applies for work with Employer B, without having completed the mandatory return-to-duty process, Employer B could unknowingly allow the employee to perform safety sensitive functions despite being prohibited from doing so by DOT rules. This is a situation in which ignorance, far from being bliss, becomes a threat to transportation safety.” In DATIA’s letter of April 9, 2001, we asked DOT to address the issue of safety sensitive employees who receive a non-negative test result while working for more than one DOT regulated transportation company, such as freelancers, independent contractors, temporary or part-time staff. Under DOT rules, if the employee tests positive for Employer A, he will be removed from safety sensitive duty for that employer, but will not be removed from safety sensitive duty for Employers B and C (who are prohibited from receiving test information from Employer A without a specific written authorization for that single test result from that employee who tests non-negative). This means that the employee can continue to work for Employers B and C in safety sensitive positions despite the non-negative drug or alcohol test. In addition, the employee in almost all cases terminates employment with Employer A following a positive test and is then free to move on to any new employer without going through the required follow-up process. Since the employee can still use Employers B and C as his employment history and selectively “omit” Employer A, the non-negative test result for Employer A will not “follow” him when a new employer researches his previous two year’s of DOT drug and alcohol test results.
If DOT agrees that safety is the highest principle, it would seem appropriate to allow test results to be shared with Employers B and C in the example above. Since previous employers are required to be queried for drug testing histories, why are current employers not able to receive information on non-negative drug test results for employees with multiple employers? As we outlined in our comments to the FMCSA (see attachment), DATIA strongly advocates the reporting of non-negative test results to the federal agencies or DOT so that employees are removed from ALL current safety-sensitive positions.
Ken, I hope that these issues are addressed by the DOT so that industry professionals accurately follow the DOT’s intent in the regulations. I would once again like to make myself available to discuss any of the above issues. Please do not hesitate to contact me at 703-548-0901 or lshelton@datia.org.
Sincerely,
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Laura E. Shelton
Executive Director
Read DATIA's letter urging DOT to address the issue of the consortium/third party administrator and employer’s address on the Custody and Control Form.
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