This letter is to follow-up the Drug and Alcohol Testing Industry Association’s (DATIA) previous letters to the DOT Office of Drug and Alcohol Policy and Compliance (ODAPC) concerning loopholes in the DOT drug and alcohol-testing program, which we believe have a negative effect on safety. After discussion and research, we can now offer a potential solution. Our previous letters asked DOT to address the issue of safety sensitive employees who receive a positive test result while working for more than one DOT regulated transportation company, such as freelancers, independent contractors, and temporary or part-time staff.
Under DOT rules, if such an 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 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. 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 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.
Under the DOT CFR 49 Part 40 regulations, employers are required to research previous drug and alcohol testing histories for potential employees, but are prohibited from receiving current drug and alcohol testing results from current employers when they work for more than one company. In these cases, since blanket releases are prohibited, the employee must be in the drug and alcohol testing program for each employer rather than being able to share the results from one employer with the other employer. When an employee working for multiple employers tests positive for one employer and does not complete the return to duty process, there is no mechanism to ensure that the
person is held accountable for the positive test result under his/her other employers.
A solution to these problems came to us as a form recently dispersed by the Eighth Coast Guard District for use in maritime drug and alcohol testing programs [attached]. The form is to be used by employers that employ a person already enrolled in a drug and alcohol-testing program such as employees who work for multiple employers or independent contractors. When an employer hires/contracts with a person already in a drug and alcohol-testing program, they simply need to request the employee’s permission to have his/her test results forwarded to them as well. The use of such a form would greatly reduce the opportunity for safety-sensitive employees to continue performing safety-sensitive duties following a positive drug test result. We would like to clarify whether such a form is allowed by the DOT regulations, or whether it is considered a blanket release. Since the Coast Guard is currently using the form, we trust that it meets Coast Guard regulations, but would like to ensure that the use of such a form would be permitted under DOT regulations for use by all DOT regulated employers regardless of mode.
DATIA hopes that this potential solution to this loophole is addressed by the DOT so that the DOT drug and alcohol-testing program can be as effective as it is intended. In light of recent events, we must ensure that our nation’s transportation systems operate as safely as possible and that all precautions are taken to remove employees who test positive from safety-sensitive duties. I would once again like to make myself available to discuss any of the above issues. I will follow up on November 26, 2001 to discuss the plausibility of the aforementioned solution.
Sincerely,
Laura E. Shelton
Executive Director
CC: Kenneth Edgell, Acting Director, Office of Drug and Alcohol Policy and Compliance
Michael P. Jackson, U.S. Deputy Secretary of Transportation
