Waynes World - August 2008
NEW RULE FORCES DISCLOSURE OF DRUG
AND ALCOHOL VIOLATIONS, AND...
NEW PROCEDURES FOR
OBSERVED COLLECTIONS
by Wayne Schooling
NEW DISCLOSURE RULE
The Department of Transportation Office of Drug and Alcohol Policy and Compliance issued an important interim rule on June 13 affecting those in the transportation and drug testing industries. The rule authorizes employers to disclose to state commercial driver licensing authorities the drug and/or alcohol violations of employees who hold CDLs and operate commercial motor vehicles, when state law requires this reporting. This rule also permits third-party administrators (TPAs) such as NTA to provide the information to state CDL licensing authorities where state law requires the TPAs to do so for owner-operator CMV drivers with CDLs. The rule applies to the 7 states that now require these reports: Arizona, California, New Mexico, North Carolina, Oregon, Texas and Washington.
WHAT HAPPENS WHEN YOU CAN’T GO?
What happens when a person does not or cannot provide a sufficient amount of urine for a drug test? You would be surprised how many times this situation occurs and neither the collector at the collection site and/or the Company DER (Designated Employer Representative) does not remember how to handle it. Every DER and driver should save this article in full so that when the problem arises it can be handled promptly, professionally and correctly. Section 40.193 reads in part as follows: This section prescribes procedures for situations in which an employee does not provide a sufficient amount of urine to permit a drug test (i.e. 45ml of urine). As the collector, you must do the following: (b)(1) Discard the insufficient specimen, except where the insufficient specimen is out of temperature range or shows evidence of adulteration or tampering (in this instance see 40.65(b) and (c) for more guidance). (b)(2) Urge the employee to drink up to 40 ounces of fluid, distributed reasonably through a period of up to 3 hours, or until the individual has provided a sufficient urine specimen, whichever occurs first. It is not a refusal to test if the employee declines to drink. Document on the “Remarks” line of the CCF (Step 2) and inform the employee of the time at which the 3 hour period begins and ends. (b)(3) If the employee refuses to attempt to provide a new urine specimen or leaves the collection site before the collection process is complete, you must discontinue the collection, note the fact on the “Remarks” line of the CCF (Step 2), and then immediately notify the DER. This is a refusal to test. (b)(4) If the employee has not provided a sufficient specimen within 3 hours of the first unsuccessful attempt, you must discontinue the collection, note the act on the “Remarks” line of the CCF (Step 2) and immediately notify the DER. (c) As the DER, when the collector informs you that the employee has not provided a sufficient amount of urine you must, after consulting with the MRO, direct the employee to obtain, within 5 days, an evaluation from a licensed physician, acceptable to the MRO, who has expertise in the medical issues raised by the employee’s failure to provide a sufficient specimen (the MRO may perform this evaluation if he/she has the proper expertise). The person’s personal referring physician must then provide a written statement to the MRO as to why that person cannot leave a specimen sample. A simple “attitude problem” can be nipped in the bud if the donor realizes how much money he/she is going to lose over the next few days through lost wages, doctor bills and more. Then, if he/she lives in one of the seven reportable states, he/she will now have to pay for rehabilitation which will cost anywhere from $500 to several thousand dollars.
BE READY TO DROP YOUR DRAWERS
The DOT just issued major changes to its 49 CFR Part 40 Regulations. This is a final rule change and becomes effective August 25, 2008. The DOT amended certain provisions to change some instructions to collectors, labs, medical review officers and employers regarding adulterated, substituted, diluted and invalid urine specimen results. This final rule makes specimen validity testing mandatory. In the past this was always optional, but now it will be mandatory. Also, a number of changes were made concerning the procedures for direct observed collections. It will now be mandatory that all return-to-duty and follow-up tests be observed collections. The DOT’s position regarding payment for additional testing is similar to their stance on paying for split specimen testing. Regardless of who pays, it is still the employer’s responsibility to ensure that procedures are in place to accomplish the additional testing. The entire final rule is 15 pages long, so I will not go into detail, but I do want to point out three items I feel are very important. What happens when a test is cancelled because it was invalid? Sec. 40.23: You, as an employer who receives a drug test result indicating that the employee’s urine specimen test was cancelled because it was invalid, must ensure that a second collection must take place under direct collection. What is now considered to be a refusal to test? Sec. 40.191: The following are now considered to be a refusal to test, which is an automatic positive: 1) Fail to cooperate with any part of the testing process (i.e. refuse to empty your pockets); 2) Behave in a confrontational way that disrupts the collection process; 3) Fail to wash hands after being directed to do so; 4) For an observed collection, fail to follow the observer’s instruction to raise your clothing above the waist, lower underwear and turn around to permit the observer to determine if you have any type of prosthetic or other device that could be used to interfere with the collection process; 5) Possess or wear a prosthetic or other device that could be used to interfere with the collection process; and 6) Admit to the collector or MRO that you adulterated or substituted the specimen. When and how is a directly observed collection conducted? Sec. 40.67: As an employer, you must direct a collection under direct observation of an employee if the test is a return-to-duty test or a follow-up test. As the observer, you must request the employee to raise his or her shirt, blouse or dress/skirt, as appropriate, above the waist, and lower clothing and underwear to show you, by turning around, that they do not have a prosthetic device. After you have determined that the employee does not have such a device, you may permit the employee to return clothing to its proper position for observed urination.
~ NTA remains a name you can trust. Our website (www.ntassoc.com) is your official U.S. DOT Internet Training Site and we are administrators of a Nationally Accredited Drug and Alcohol Program. If you have any questions, call me at (562) 279-0557 or send me an e-mail to wayne@ntassoc.com. Until next month, “Drive Safe – Drive Smart!”