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DATIA Requests the Establishment of a Working Group to Address the Problems Encountered by Employers in Employing Safety Sensitive Employees Who Concurrently Work for Multiple Employers
January 24, 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 Mr. Edgell:
This letter is to request the establishment of a working group to address the problems encountered by employers in employing safety sensitive employees who concurrently work for multiple employers. While the Department of Transportation (DOT) has indicated that there are not a large number of safety sensitive employees who work for multiple DOT covered employers, the Drug and Alcohol Testing Industry Association’s (DATIA) members’ experiences show otherwise.
The first problem encountered by employers in hiring a person that also works in a safety sensitive position for other employers is whose drug and alcohol-testing program must the employee be enrolled. “Does the employee need to be in both employers’ programs, or can one employer use the employee’s test results from the other employer to satisfy the drug and alcohol testing requirements?” is just one of the many questions received by DATIA concerning this situation. If the employee must be in both testing programs, this increases the costs of drug and alcohol testing for the employer and increases the likelihood that the employee with multiple employers will be chosen for random testing. On the other hand, how can two employers share an employee’s test results without using what the DOT terms a “blanket release”?
The second problem occurs when an employee with multiple employers receives a verified positive drug or alcohol test. DATIA receives inquiries on a weekly basis questioning what to do when an employee tests positive for one employer, and the employer or consortium knows that the employee also works for another DOT covered employer. Currently, we must tell them that they can do nothing. Under DOT rules, the employee will be removed from safety sensitive duty for the employer that they tested for, but will not be removed from safety sensitive duty for Employer B (who is prohibited from receiving test information from Employer A without a specific written authorization for that single test result from that employee who tests positive). This means that the employee can continue to work for Employer B in a safety sensitive position despite the positive drug or alcohol test. This, in effect, negates any consequences of the positive drug and alcohol test result. Since each employer is responsible for adhering to the DOT drug and alcohol testing regulations for each of his/her DOT covered employees, why is it that an employer cannot learn of an employee’s drug and alcohol testing violations that occur while concurrently working for another employer? To allow the employee to continue performing safety sensitive duties for any employer, regardless of which employer was responsible for having the employee tested, severely compromises the safety benefits of drug and alcohol testing.
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. Employers are not privy to an employee’s DOT drug and alcohol test violations, except during the pre-employment background checks in which most employees will selectively omit employers where they have tested positive. Since the employee can still use Employer B 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.
Ken, these situations are more prevalent than the DOT thinks, and causes concern for employers and the drug and alcohol testing industry. As such, we would like to propose that a working group be established to study and determine the best possible solution to this situation. Safety and confidentiality concerns both need to be met, and we feel that those who routinely deal with this situation first hand are best apt to provide possible solutions. Ideally, the working group would consist of DOT covered employers, government officials, industry group representatives (representing both the employers and the service providers), and drug and alcohol testing providers.
I welcome the opportunity to discuss this with you further, and will follow up via phone on February 11, 2002 to determine what steps need to be taken to establish the working group. In the meantime, you may reach me at 703-548-0901 or lshelton@datia.org.
Sincerely,
Laura E. Shelton
Executive Director
CC: Norman Mineta, U.S. Secretary of Transportation
Michael P. Jackson, U.S. Deputy Secretary of Transportation
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