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DOT Secretary Mineta Responds to DATIA Concerning
Use of Release Form for Employers in Employing Safety Sensitive Employees Who Concurrently Work for Multiple Employers
February 4, 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 November 13 concerning the U.S. Department of Transportation’s (DOT) drug and alcohol testing program.
The Department has long been aware that prohibiting the transmission of test result information to additional employers can limit, in some circumstances, the effects of the DOT test program. Consequently, we raised the issue for comment in the December 1999 proposed rule to amend 49 CFR Part 40 in the context of MRO release information. After receiving a considerable number of comments on the issue, we decided against permitting release of test result information to additional employers (see 65 FR 79475-76, December 19, 2000). The same rationale applies to release of this information directly by employers without employee consent.
Confidentiality is a cornerstone of the balance between safety and employee privacy that is crucial to the acceptance and constitutionality of the testing program. This concept is fundamental to the Department’s programs, not a “loophole.”
The form that you reference is in conflict with DOT regulations in two areas: First, the form applies, in its instructions, that an employer may have an individual working in a safety-sensitive position who is not in the employer’s random testing program. Such an action would cause the employer to be out of compliance with the random testing regulations for all operating administrations (e.g., 49 CFR Part 16, “Chemical Testing,” §16.230). Second, the form is an example of a “blanket request” which is prohibited under part 40 (see 40.321(b)). Use of the form would have the employee authorize the release of information about an event that has not yet occurred.
All six DOT agencies involved in the drug and alcohol testing program recently modified their rules to be consistent with the new Part 40. Extraneous practices, such as the use of the form pointed out in your letter, are examples of inconsistencies that this effort was designed to clear up. Thank you for bringing it to our attention. The Coast Guard has been contacted and asked to take appropriate corrective action.
Sincerely yours,
Norman Y. Mineta
Secretary, DOT
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