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Wednesday, July 9, 2014

DOT ISSUES DRUG TESTING UPDATES



By: Tommy Eden
The Office of Drug and Alcohol Policy and Compliance with the Office of General Counsel of the U.S. Department of Transportation has recently issued new guidance governing the collection process for substance abuse testing. Collections are sometimes considered a “weak link” in an employer’s DOT drug testing because collectors are usually third parties, and the employer may have more difficulty monitoring and ensuring their compliance.

A new “Q & A” for 49 CFR Part 40, which will take effect this Monday, July 14, includes discussion of the following issues:

*When may a collector give an employee permission to leave a collection site?

*What happens if an employee leaves the collection site before the testing process is complete?

Also, effective July 3, the DOT issued a revised version of its Urine Specimen Collector Guidelines. (The last update before the latest version was on October 1, 2010.) For the most part, the current revisions are non-substantive updates (for example, updated links to websites and removal of effective dates that have already passed). Substantive changes, intended mainly to clarify what actions are “required” as opposed to simply “authorized,” are in italics.

Alabama now ranks #1 as highest painkiller prescribing state, according to a report issued by the Center for Disease Control last week. There are 143 painkiller prescriptions per 100 persons livings in Alabama“Prescription drug overdose is epidemic in the United States.  All too often, and in far too many communities, the treatment is becoming the problem,” said CDC Director Tom Frieden, M.D., M.P.H. “Overdose rates are higher where these drugs are prescribed more frequently.  States and practices where prescribing rates are highest need to take a particularly hard look at ways to reduce the inappropriate prescription of these dangerous drugs.” http://www.cdc.gov/media/releases/2014/p0701-opioid-painkiller.html

Common Sense Counsel:
Following these five tips will help you ensure that your collector is complying with DOT requirements:

  • Use only collectors who can produce a current collector training certificate from a nationally recognized industry association.
  • Make sure that your contract with the collector spells out the terms of your relationship, including procedures that will ensure the integrity of the specimens and the testing process, and an indemnification clause that protects your company in the event of a collector error.
  • Conduct occasional surprise visits to your collection site, and use an audit checklist to catch any errors in site preparation or specimen collection.
  • Make sure that your Medical Review Officer knows to promptly notify you of any collector errors and to order collector retraining when necessary.
  • Periodically engage an independent auditor to test the integrity of your collectors and the processes they follow. In the (hopefully rare) event of collector misconduct – such as accepting bribes to ignore positive test results, substitutions, or adulterations – have the auditor gather conclusive evidence. You can then consider whether to report the collector to the DOT to have them removed from the business.
  • To make sure your safety sensitive drivers are not impaired at work on painkillers, institute an ADA compliant pre-duty disclosure policy with fitness-for-duty follow up by an occupational physician. 

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA 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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com