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Wednesday, February 17, 2010

DOT Proposes Sweeping Workplace Drug Testing Changes

Alabama @ Work
By Tommy Eden

On February 4, 2010, the U.S. Department of Transportation (“DOT”) published a Notice of Proposed Rulemaking making a host of changes to 49 CFR Part 40 to bring consistency between the DOT’s drug testing procedures with new U.S. Department of Health and Human Services’ (“HHS”) requirements scheduled to take effect on May 1, 2010. The proposed changes are as follows:

• Require testing for Ecstasy (MDMA) under the DOT drug panel and require testing for 6-acetylmorphine (a unique metabolite of heroin, considered to be definitive proof of heroin use).

• For amphetamines, to lower the initial test cutoff concentration from 1,000 ng/ml to 500 ng/ml, and the confirmatory test cutoff concentration from 500 ng/ml to 250 ng/ml.
• For cocaine, lower the initial test cutoff concentration from 300 ng/ml to 150 ng/ml, and the confirmatory test cutoff concentration from 150 ng/ml to 100 ng/ml.
• For cocaine and amphetamines, this will increase the number of hours after a drug is ingested by an individual that the concentration of the drug or drug metabolite in urine will likely remain above the cutoff concentration.
• DOT will authorize employers to choose between a full service laboratory and an Instrumental Initial Test Facilities (“IITF”) which conducts initial tests only. The IITF would only be authorized to provide results to employers for negative and negative dilute specimens, as well as specimens they reject for testing.
• All other specimens would be forwarded by the IITF to a HHS-certified laboratory.
• Some definitions will change, and others added, to make them consistent with the HHS Guidelines for Federal Workplace Drug Testing Programs.
• Comments must be submitted by April 5, 2010.
• The full 11 pages of proposed regulations on the fast track to approval can be downloaded at

Common Sense Counsel. These proposed changes are huge for all Alabama employers based upon the fact that the both the Alabama workers compensation disqualification statute and unemployment compensation disqualification statute reference the DOT regulations found at 49 CFR Part 40. Once these regulations become effective, it is highly advised that all current federal DOT and Alabama drug-free workplace policies be reviewed by experienced drug testing counsel. These regulations should make it easier to catch the drug testing cheats.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at