On March 31, 2015, the U.S. Department of Transportation (DOT) issued a notice of proposed rulemaking which would implement an updated testing protocol for determining whether employees in “safety sensitive” positions are using illegal drugs or abusing prescription medications. The Federal Motor Carrier Safety Administration (FMCSA) and the Federal Aviation Administration (FAA), both lawdivisions within DOT, have been authorized to promulgate drug testing regulations under the Drug-Free Workplace Act of 1988 and the Drug-Free Schools and Communities Amendments Act of 1989 . This amendment would be a substantial update to those regulations which have not changed significantly since 2013.
To understand how these new regulations may affect employers’ rights to maintain a safe workplace free from substance abuse by employees, it is helpful to understand the DOT’s testing protocol for determining whether an employee is using illegal drugs. Here are a few things employers should know about DOT drug testing:
Employees in safety-sensitive positions must be tested pre-employment and “reasonable suspicion” as well as post-accident . FMCSA defines safety-sensitive employees as those whose “duties include performing any of the following functions: operating a CMV, performing safety inspections, maintaining vehicles or vehicle qualifications, handling or transporting hazardous materials, acting as a school bus driver or school bus attendant, or serving as a pilot or aircraft crewmember.”
Prescription medications can alter test results . An employer may not base employment decisions on an employee’s positive result unless it has written confirmation that the employee is using the medication pursuant to a valid prescription.
Employees are responsible for reporting all medications they are taking . If an employee experiences any side effects from their medicine, they must report them to their employer before being tested so that the results will not be erroneously reported as positive for illegal drugs.
Testing procedures have changed slightly . Previously, DOT drug tests measured metabolite levels in nanograms per milliliter (ng/ml). The new regulations reduce this threshold to 50 ng/ml.
The new FMCSA proposal would allow “probationary” employees three times more THC in their system than regular employees. This is based on the fact that FMCSA assumes novice drivers are less skillful at operating a CMV.
Employers are required to keep all records of test results, employee notification, and chain of custody for at least five years.
An employer may only request an “employee assistance program” medical review in certain situations . The proposed regulations do not require employers to offer EAPs to employees, but they allow an employer to request that a positive drug test be reviewed by a medical professional if the employee requests it or if the employer suspects that the positive result was caused by prescription medication in violation of DOT’s rules on pre-employment testing.
Since the notice of proposed rulemaking was issued, DOT has received more than 1,700 comments on the new regulations. DOT will consider those comments as it prepares its final rule on drug testing. For now, employers should review their own policies regarding employee drug use to ensure compliance with existing rules and act accordingly once any final changes are announced.
A man who tested positive for low levels of MDMA and morphine was fired from his job as a truck driver because he failed his employer’s DOT drug test.
The DEA tests truck drivers (and workers in other safety-sensitive jobs such as bus, taxicab, and subway operators) on behalf of their employers under the Department of Transportation’s drug testing regulations.. The regulations are contained in 49 CFR Part 40. These regulations require that drivers be tested “for use of alcohol or drugs” if they have been involved in certain events on the job. Even if there was no accident, any event requiring repair of property caused by an employee is enough to trigger a random drug test for someone with safety-sensitive duties. A railroad inspector was randomly tested for drug use because his co-workers smelled alcohol on him after he had a few drinks with lunch.
In this case, the employer of the truck driver asked him to take a random drug test as soon as possible once he realized that its test kit was positive for opiates. In response, the employee requested a retest from an outside facility and presented that lab’s negative result to his employer along with documentation from his doctor stating that he suffers from chronic pain. The company refused to rescind its termination decision unless it received satisfactory documentation directly from the doctor affirming that no morphine or other opiates were in the patient’s system when he took the DOT drug test. The employee then sued for wrongful discharge violation of public policy; under Ohio law, employees are not required to accommodate an employer’s disability discrimination in violation of federal law.
The court upheld the drivers’s claim for wrongful discharge in violation of public policy. The court reasoned that because he tested positive on his employer’s drug test and was fired for it, the employee “has suffered an absolute disqualification from further pursuing one of her main lines of work.” Because this disqualification is “overwhelming” when compared to any potential injury caused by thge employers actual actions against the patient (refusal to allow him back into his job when he provided proof that he was authorized to use morphine), it constitutes a significant burden on the driver when balanced against the public policy behind Federal law protecting who use controlled substances under physician supervision.
The court noted that while the Federal laws protecting who use controlled substances under physician supervision, they do not require employers to ignore facts like the “overwhelming” evidence in this case. The employer was entitled to suspend its drug testing program for employees with chronic pain until there was more information about how morphine interacts with its test kit. For example, the employer could have required that an employee be tested again after receiving medication or waited to test until it received further clarification from its manufacturers representative.