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The Department of Transportation's (DOT) Office of Drug and Alcohol Policy and Compliance (ODAPC) has proposed revising its rule on drug and alcohol testing, specifically, the rule 49 D.F.R. Part 40 which focuses on "how to conduct the testing." DOT published proposed revisions on December 6, 1999 after years of working on the rule. Two days of public hearings were held in Washington DC on March 20-21, 2000. Participants at those hearings were required to submit comments in advance, and were provided only four minutes to present their views. An additional six minutes were given to respond to questions from a panel of DOT heads.
The DOT was seeking comments on its rule, and has posed questions addressing areas still left unresolved by the rule. An electronic forum was held from the DOT Website between April 3-5, 2000. Many of the proposed rule changes are more form than substance. The main areas of concern for both employers and unions include:
- Mandatory testing for adulterants. DOT is seeking to have all specimens tested for adulterants. If a specimen is adulterated, three options of handling the situation are being considered.
- (Current rules) The employee would be reported as having "refused to submit to testing."
- Employees could request split sample testing of the specimen. (Objections to this option include the argument that adulterants are chemically unstable, and a second test would not necessarily reveal the same result as the first test.)
- A second test would be performed immediately. (Objections to this option include costs vs. fairness arguments.)
The "stand down" provision would permit or prohibit employers to remove employees from the job on the basis of a confirmed positive test result of the first specimen. This removal or non-removal would be prior to the Medical Review Officers (MRO's) completion of the verification process, including evaluating the split specimen test result. Unions are concerned that an employee's reputation would suffer from such a procedure. Employers are concerned about the liability of putting drug-using drivers on the road. The comment period closed April 7, 2000. DOT will seek to finalize the rule by fall or winter of 2000. At that time, the Federal Motor Carrier Safety Administration, the Federal Highway Administration, The Research and Special Programs Administration, the Federal Aviation Administration, the Federal Transit Administration, the Federal Railroad Administration and the U.S. Coast Guard are expected to change their rules to comply with Part 40.
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