U. S. DEPARTMENT OF TRANSPORTATION
DRUG TESTING REGULATIONS

Mandatory random testing procedures are a major feature of Department of Transportation regulations requiring anti-drug programs in the aviation, motor carrier, railroad, maritime, mass transit, and pipeline industries. DOT's final drug testing rules (49 CFR Part 40), issued on December 1, 1989, apply to nearly four million transportation employees whose jobs have safety or security implications.

Under the DOT rules, employees in safety-sensitive or security-related positions in all sectors of the public and private transportation industries are subject to random drug testing. Employees covered in Guam and the CNMI include:

-- Commercial airline pilots, mechanics, flight attendants, aircraft dispatchers, and airport security screening personnel.

-- Drivers of buses carrying more than 15 passengers, drivers of trucks weighing 26,000 pounds or more, and drivers of trucks of any size carrying hazardous materials. Independent drivers who own and operate their own rigs also are subject to testing, which must be conducted either by a company with which the independent operator has a contract or a consortium of owner-operators.

-- Government mass transit employees, such as bus drivers and maintenance crews.

-- Merchant mariners whose job duties directly affect the safe operation of their vessels, and anyone in a safety-sensitive position on a vessel that is required to be operated by a licensed or documented person, including state-employed ship pilots and self-employed operators of vessels.

-- Employees performing operation, maintenance, and emergency-response functions at pipeline and liquefied natural gas facilities.

Drugs for Which Testing Is Mandatory

Employers in DOT-regulated industries must collect employee urine specimens and have them tested for the presence of five drugs: marijuana, cocaine, opiates (morphine and codeine), amphetamines, and phencyclidine (PCP). A specimen may not be tested for alcohol or some other controlled substance without authorization from the regulating agency.

Generally, employers that want to test for additional controlled substances must collect a second, separate urine specimen (referred to as an "employer sample") from each covered employee and must assume responsibility for testing the sample. It would not be proper, in any case, to divide a specimen into separate "DOT" and "employer" collection bottles or to retain any "surplus" urine (any amount above the 60 milliliters required for the "DOT sample") for testing for other substances.

Testing Rates

Random drug testing is to be conducted in an employee pool comprising half the employees eligible for testing at the workplace. This means that, every 12 months, half the workforce covered by the regulations is to be tested. Where a consortium arrangement exists, the 50 percent testing rate can be applied to the entire employee population covered by the consortium.

Chain-of-Custody Form Requirements

Employers, as well as the DHHS-certified laboratories employers must use, are required by the DOT rules to develop and maintain clear and well-documented procedures for the collection, handling, transfer, and testing of employee urine samples. Procedures devised by employers must include use of a standardized drug testing "custody and control" form, a sample of which is available from the DOT. Employers may use DOT's form (DOT 3900.9) as a model, and while they are not required to devise a form whose format is exactly the same, they must collect certain specified items of information.

Form Specifications

For each urine sample collected from an employee, a multi-part, (non-carbon paper) form must be completed. The form should be designed to be a permanent record providing identifying data on each tested employee and information on each phase of the specimen collection, transfer, and testing process.

The form must consist of an "original" and a "second original", and both must accompany each urine specimen to the drug testing laboratory. Copies must be provided to the employer's medical review officer, each employee who is tested, and certain other designated company officials, including the collector of the urine specimen and the employer or employer representative. An additional copy of the form is required if an employer uses a "split specimen" method of collection (explained later); the copy must accompany the split specimen to the testing laboratory, a second laboratory, or an employer storage site.

Items of information that must appear on all parts of the custody and control form include:

-- A preprinted specimen identification number unique to the particular collection.

-- The employee's social security or identification number.

-- The employer's name, address, and identification number.

-- The medical review officer's name and address.

-- The type of test to be performed (pre-employment, post-accident, random, etc.), and the drugs for which the specimen will be tested.

-- Temperature of the urine specimen and certain other related information (whether the temperature was taken within four minutes of obtaining the specimen).

-- Date of transfer of the urine sample to the testing laboratory, and the signatures of both the person releasing the sample and the person receiving it.

-- Name of the collector, date the specimen was collected from the employee, the location of the collection site, and a signed statement certifying that the sample was properly collected, labeled, and sealed.

Certain information must appear only on the parts of the form that go to the laboratory. Other information entered on the form after analysis must include the laboratory's name and address, specimen results, and a signed statement certifying that the sample was received, handled, and analyzed properly.

Each employee subject to testing is required to complete and sign several parts of the form. One of these parts contains the employee's name, daytime telephone number, and birth date, and the employee's certification that the urine sample is the employee's own and that the specimen bottle was sealed with a tamper-proof seal in the employee's presence.

Donor medical information, such as a list of prescription medications taken by a tested employee, may appear only on the copy of the form that goes to the employee. DOT does not require, and an employer may not require, any tested employee to make such a list -- it is intended to be a "memory jogger" for the employee, and for the employee's use only.

DOT permits employers to include on their form additional information required for billing or other "legitimate" purposes, provided that personal identifying information about employee-donors (other than the social security or employee ID number) is not provided to the testing laboratory.

Employers must use a standardized, six- or seven-part carbonless drug testing custody and control form that conforms to the provisions of 40 CFR Part 40. Employers are required to gather on the form the information specified in Sec. 40.23(a) of the DOT rule, and may not collect information inconsistent with that called for in the rule.

The format must be designed so that appropriate parts of the form go to the locations specified in the rule; employee identification data that go to the lab are restricted to SSN or employee ID number only; employee, collector, MRO, and laboratory certification statements must be verbatim as presented in the rule; the donor medical information provision must conform exactly to the rule requirements; and the MRO identification data must be as the rule requires. (See 55 Federal Register 46669, November 6, 1990.)

Preparations for Testing

In preparing for testing, employers must not only design and have printed a standard specimen collection form; they also must prepare testing procedures that include provisions for:

-- Use of a clean, single-use prepackaged specimen bottle or a clean, single-use collection container (disposable cup) that remains securely wrapped until time of use.

-- Use of tamper-proof seals on bottles containing urine specimens.

-- Use of shipping containers that can be sealed and initialed to prevent undetected tampering.

-- Written instructions and training.

Employer Instruction and Training

The DOT rules require that employers provide both employees and collection-site persons with written procedures, instructions, and training.

Employee Training

Employers must provide employees who are subject to testing with a set of written instructions that spell out their responsibilities for providing a urine sample and completing any required paperwork.

Collector Training

Collection-site persons may be either licensed medical professionals or technicians or non-medical persons; their responsibilities are to assist and instruct employee-donors and make certain preliminary examinations of urine specimens. If collection-site persons are non-medical professionals, they must be "trained to proficiency" (enough to ensure that they will perform their functions competently) before they may serve at collection sites.

If they are medical professionals or licensed technologists or technicians, they are not required to receive training, if they are given and properly follow the employer's written instructions on specimen collection.

Rather than require employers to conform to a specific training curriculum, DOT specifies only that written collection procedures and instructions be "clear" and "detailed." Training must emphasize that collection-site persons are responsible for maintaining the integrity of the collection and transfer process, ensuring the privacy of specimen donors, and avoiding conduct or remarks that might be construed as accusatorial or otherwise offensive or inappropriate.

Specimen Collection Sites

As part of each employer's drug testing program, one or more "suitable" sites must be designated for the collection of employee urine samples. Each designated site must have all the necessary personnel, materials, equipment, facilities, and supervision for the collection, security, temporary storage, and shipping or transportation of specimens to certified drug testing laboratories. Private medical facilities (FHP clinics or the Physicians Diagnostic Lab) may be designated as collection sites.

Collection sites must be physically secured at all times, with access restricted to authorized personnel.

Procedures for Specimen Collection

Employers' written procedures on specimen collection must cover, among other concerns:

-- Security -- Certain precautions must be taken by every employer to guard against physical tampering with either urine specimens or information on urine bottles and chain of custody forms. For example, employers are required to ask employees to remove unnecessary outer garments that might conceal items or substances that could be used to adulterate a specimen. They also must require employees who have been tested to initial the bottle containing their sample. In addition, employers must ensure that no more than one collection procedure is conducted at any time. (A collection procedure is complete, the rules explain, only after a urine bottle containing a specimen has been sealed and initialed, required paperwork has been completed, and the employee providing the specimen has left the collection site.)

-- Donor privacy -- Unless there is reason to believe that a particular employee-donor may alter or substitute their specimen for a co-worker, the employee must be allowed to provide a urine specimen in the privacy of a stall or a secured, partitioned area that allows for personal privacy. If there is reason to believe that an employee has altered or substituted a specimen, the employee should be required to provide a second urine sample under the direct observation of an authorized person of the same gender. Also, any time a collection is "monitored" (an employee uses a rest room stall and the collection-site person remains in the rest room), the collection-site person must be of the same gender as the employee.

Under other provisions related to the collection of specimens, the rules say:

-- Employees reporting for testing must be positively identified. A specimen may not be taken from any person whose identity cannot be verified.

-- Upon an employee's request, the collection-site person must show their identification to the employee.

-- An employee may retain a wallet but must leave personal belongings (a purse, waist-pouch, briefcase) with outer garments. The employee may request that collection-site personnel provide a receipt for the personal belongings.

-- If a collection-site person decides a specimen should be collected under direct observation, a higher-level supervisor of the collection-site person or a designated employer representative must review and approve the decision in advance.

-- A direct supervisor of the employee under testing should not serve as the collection-site person unless it is impractical for any other person to perform the job. If the rules of a DOT agency are more stringent than this provision, the more stringent rules prevail.

-- The collection-site person is required to note on the custody and control form any unusual behavior or appearance. In addition, the collection-site person must report and document an any refusal to cooperate with the collection process.

-- If a urine specimen is required of an employee in need of medical attention (part of a post-accident test administered in an emergency medical facility), the necessary medical attention should not be delayed so that the specimen can be obtained.

-- Except in pre-employment testing, an employee who cannot provide a complete (60 ml) specimen within an eight-hour period or at a subsequent collection conducted at a later time must be referred for medical evaluation.

-- Employees can be required to sign a consent or release form authorizing the collection and analysis of their urine specimen and the release of results to their employer. No employee can be required to sign a waiver of liability for negligence in the collection, handling, or analysis of a specimen.

-- Employers are permitted, but are not required, to use a "split sample" method of collection. The method, the objective of which is to provide extra protection against employer or laboratory error, works this way: Each tested employee is asked to provide a urine specimen that then is divided into two specimen bottles. One container of 60 ml of urine is sent to the laboratory for DOT-mandated analysis; the container of the remaining urine is securely stored. If the first specimen produces a positive test result, the employee may request that the employer's medical review officer have the stored sample tested. If the test result of the second sample is negative, the test is "canceled".

The rules make clear that the second part of a split sample may be tested only for the presence of the drug(s) found positive on the first test, and may not be used for any purpose other than the testing required under DOT's regulations. In addition, any personnel action required to be taken as a result of a positive test result (removal from a safety-sensitive position) should not be postponed pending the result of the second test.

Quality Control: Employer "Blind' Testing Requirements

Every covered employer must use "blind" testing quality control procedures. Designed to keep testing laboratories "sharp," such procedures require submitting to laboratories urine specimens, with fictitious identifiers, that either contain no drugs or have been spiked with known quantities of specific drugs. The specimens are "blind" because they cannot be distinguished from specimens taken from employees subject to testing.

DOT's rules on blind performance testing apply to all covered employers, regardless of size. They require employers to submit three blind samples for every 100 employee specimens submitted for testing, up to a maximum of 100 blind samples per calendar quarter. Approximately 80 percent of the blind samples from employers with 2,000 or more covered employees must be "blanks" (contain no drugs) the remainder must be positive for one or more drugs per sample (and in such a distribution that all drugs to be tested are included in approximately equal frequencies of challenge).

Positive specimens must be spiked only with those drugs for which the employer is testing. Employers with fewer than 2,000 covered employees may submit blind samples in the 80-20 ratio required of larger employers, or they may submit only blanks or two separately labeled portions of a specimen from the same non-covered employee. Consortia are responsible for submitting blind samples on their members' behalf. This means that each member need not submit any blind specimens independently; rather, the consortium must submit three blind samples for every 100 samples it submits on the collective behalf of the members.

DOT Rules on Testing Services

Employers may purchase drug testing services only from those laboratories that have been approved and certified by the U.S. Department of Health and Human Services. An employer's contract with a laboratory must provide for unannounced inspections by the employer and the DOT agency having jurisdiction over the employer.

Laboratories used by DOT-regulated employers must be able to meet DOT's specific requirements on staffing, equipment, day-to-day management and control of operations, the testing and analysis of specimens, and the documentation and reporting of results. Each laboratory also must have qualified personnel available to testify in any administrative or disciplinary proceeding against an employee that is based on a confirmed positive test result.

Reporting of and Access to Test Results

Employers must ensure that no personal identifying information (other than an employee identification number) is provided to drug testing laboratories. Similarly, laboratories must not include any personal identifying information in monthly statistical summaries of urinalysis testing that are required to be provided to employers. So that information about a particular person's tests cannot be readily inferred from monthly reports, laboratories may, if necessary, delay sending such reports until data are sufficiently aggregated to make an inference unlikely.

Tested employees must be given access to their test records and to any records containing the results of relevant certification, review, or revocation-of-certification proceedings.

Testing laboratories under contract to DOT-regulated employers must maintain the confidentiality of records of employee drug tests. Each laboratory's contract with an employer must provide for the laboratory's disclosure of information about a positive drug test to the tested employee, the employer, or the decision-maker in a lawsuit, grievance, or other proceeding initiated by or on behalf of the employee.

Laboratories must provide available copies of all analytical results for employer testing programs to DOT or the DOT agency with regulatory authority over the employer.

Laboratories are required to report the result of a drug test to an employer's medical review officer within approximately five work days after receiving a specimen. Test results (whether for initial, confirmatory, or quality control tests) may be reported only after they have been reviewed and certified as being accurate.

Reports from laboratories must identify the drugs for which specimens were tested and indicate whether the specimens produced positive or negative test results. Specimens that produce a positive result on initial testing are subject to confirmatory testing using gas chromatography/mass spectrometry methods. Any specimen that is negative on initial testing or negative on confirmatory testing must be reported as negative. Specimens confirmed to be positive must be reported as positive for a specific drug.

At the request of an employer's medical review officer, a laboratory also must quantitate test results.

While laboratories may communicate test results by teleprinter, facsimile, or computer, they may not provide results verbally by telephone. (Laboratories and employers both are responsible for ensuring the security of a data transmission and for limiting access to any data transmission, storage, and retrieval system.)

Medical Review Officer's Role and Duties

DOT rules require that a positive test result does not automatically identify a job applicant or employee as having used drugs in violation of DOT rules. Before such a determination can be made it is essential that a final review of test results be made by a licensed physician with a knowledge of substance abuse disorders. This person is identified by DOT as a medical review officer or MRO.

The MRO, who may be an employee of a transportation employer or a private physician performing review services for the employer, plays a important role in the disclosure and ultimate use of test results. Specifically, that role is to review, interpret, and verify confirmed positive test results obtained as part of the employer's anti-drug program. (For negative test results, the MRO's duties are purely administrative.)

In performing their job, the MRO is required to determine if a confirmed positive test result could have a medical explanation. To make this determination, the MRO is authorized to conduct an interview with the tested employee to review the employee's medical history. If the MRO has cause to believe the test result could be attributed to the use of legally prescribed medication, the MRO must review all medical records made available by the tested employee. If, from that review, the MRO identifies a legitimate medical reason for the positive test result, the MRO must inform the employer that the result is negative.

If necessary, the MRO also can order a re-analysis of an employee's original urine specimen to confirm the accuracy and validity of the reported test result. If the retest produces a negative test result, the MRO is authorized to "cancel" the test.

After verifying a positive test result, the MRO is required to refer the employee's case to the company's employee assistance or rehabilitation program or, depending on the employer's policy, to a personnel officer or other management official authorized to recommend or take personnel action against the employee.

Before making a final decision to verify a positive test, the MRO must give the tested employee an opportunity to discuss the test result. As a first step, the MRO must contact the employee confidentially to determine whether the employee wishes to discuss the test result. A staff person under the MRO's supervision may make the initial contact, while a medically licensed or certified staff person may gather information from the employee. Under most circumstances, the MRO must talk directly with the employee before verifying a test as positive.

If the MRO has made (and documented) all reasonable efforts to reach the employee directly and is unable to do so, the MRO then must contact a designated management official, who, in turn, must direct the employee to contact the MRO as soon as possible.

To the maximum extent practical, the management official's efforts to contact the employee must be held in confidence. If the management official also is unable to contact the employee after making all reasonable efforts, the employer may place the employee on "temporary medically unqualified status" or medical leave.

The MRO may verify a test as positive without having first communicated directly with the employee under three circumstances:

-- If the employee expressly declines the opportunity to discuss the test result.

-- If the designated employer representative successfully contacts the employee but, after more than five days, the employee fails to contact the MRO. (If the employee subsequently offers information that explains why timely contact with the MRO was impossible (e.g., the employee documents a serious illness or injury), the MRO may reopen the verification process and allow the employee to discuss the confirmed positive test result. If the MRO concludes that the employee's explanation for the test result is legitimate, the MRO can declare the test negative.)

-- If DOT operating agency rules specify other circumstances when communication with the employee is not required to verify a test result as positive.

Disclosure of Medical Information

The DOT rules specify when medical information provided by an employee as part of the testing verification process may be disclosed by the MRO to the employer, a DOT agency or other federal safety agency, or the physician responsible for assessing the employee's medical qualifications to perform a job. This information may be disclosed only if:

-- An applicable DOT regulation permits or requires such disclosure.

-- In the MRO's reasonable medical judgment, the information could result in a determination that the employee is medically unqualified to perform their job.

-- In the MRO's reasonable medical judgment, in a situation for which there is no DOT agency rule establishing physical qualifications standards for job performance, the information indicates that the employee's continued performance of a safety-sensitive function could pose a significant safety risk.

Before obtaining medical information from an employee as part of the verification process, the MRO must inform the employee that such information may be disclosed to the employer or another, identified, third party authorized to receive the information.

Documentation and Recordkeeping

Records pertaining to a given urine specimen must be retained by the drug testing laboratory for at least two years, unless the employer has provided other instructions in writing. Documentation on all aspects of the testing process also must be maintained by testing laboratories and made available for at least two years.

The two-year period may be extended upon written notification by a DOT agency or by any employer for which the laboratory provides services. Documents pertaining to any specimen under legal challenge must be maintained indefinitely.

Specific recordkeeping requirements for employers are included in the anti-drug program rules issued by the individual DOT operating agencies.

Compliance Dates

DOT's final rules on drug testing procedures are effective January 2, 1990, except that the provision on blind specimen performance testing is effective May 30, 1990, for employers with fewer than 2,000 covered employees.

Specific compliance dates for mandated types of drug tests are included in the rules of individual DOT agencies.

DOT Testing Handbook

The Department of Transportation has produced for transportation employers and services that support DOT-mandated drug testing a handbook, Drug Testing Procedures Handbook (Stock No. 050-000-00538-1), providing practical guidance on DOT's regulatory framework for mandatory testing of employees in sensitive safety- and security-related positions. The handbook, which is available through the U.S. Government Printing Office, contains three manuals: "Employer's Guide to 49 CFR Part 40"; "Medical Review Officer Guide"; and "Urine Specimen Collection Procedures Guide."

The "Drug Testing Custody and Control Form" (OMB No. 2105-0522) also is available from the GPO. The form is reproduced in a six- or seven-copy format printed on carbonless manifold paper. The six-copy form, which is used for specimen collections when only one specimen is processed for testing, is sold in packages of 50 under GPO Stock No. 050-000-00-529-1; the seven-copy form, which is used when the optional split specimen collection procedure is used for DOT-mandated testing, is sold in packages of 50 under GPO Stock No. 050-000-00-530-5.

Employers that wish to purchase either the handbook ($15) or the form ($20 per package of 50) should contact: Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402; (202) 783-3238.

Drug-Free Workplace Requirements

FEDERAL HIGHWAY ADMINISTRATION

Motor carriers and persons who operate commercial motor vehicles in interstate commerce are subject to Federal Highway Administration regulations on controlled substances testing. The rules (49 CFR Parts 391 and 394) make pre-employment, periodic, reasonable cause, and random drug testing the responsibility of motor carriers. They make post-accident testing the joint responsibility of drivers and their employers.

An estimated three million employees, including independent truckers, are covered by FHWA's rules. Also covered are commercial motor vehicle drivers under contract to a motor carrier and some persons living or working outside the U.S. Drivers hired out of hiring halls are subject to drug testing based on the implementation of a drug testing program by the motor carrier they are used by and the number of days they are used by the motor carrier.

Drug-Use Prohibitions

FHWA rules specifically prohibit drivers from being on duty if they illegally use a controlled substance or test positive for use of a controlled substance. (Motor carriers can require drivers to notify them about therapeutic drug use.)

Any driver who, as a result of testing, is alleged to have violated the drug-use prohibitions has available as an "affirmative defense," to be proven through clear and convincing evidence, that use of a controlled substance (other than methadone) was lawfully prescribed by a licensed medical practitioner familiar with the driver's medical history and assigned duties.

How to count "Drivers Subject to Testing"

The date on which required drug testing must begin depends on the number of "drivers subject to testing" being used by a motor carrier on December 21, 1989. To be counted, a driver must meet three criteria:

-- Use status. The driver must be either an employee of a motor carrier or a commercial motor vehicle driver who has been or will be under contract for 90 or more days in any 365-day period. (The 90 days need not be consecutive.)

-- Vehicle operation. The driver must operate the commercial motor vehicle in interstate commerce.

-- Type of vehicle. The vehicle must be a commercial motor vehicle weighing more than 26,000 pounds; transporting more than 15 passengers, including the driver; or carrying hazardous materials required to be placarded.

Only drivers who meet these criteria are required to be counted for purposes of determining when to implement drug testing.

Employer Testing Responsibilities

The FHWA rules indicate that employers are to use drug-test results as a criterion for determining applicants' and employees' physical qualifications to operate a commercial motor vehicle. The types of tests employers are responsible to conduct include:

-- Pre-hire or pre-use testing -- Pre-employment or pre-use testing as a pre-qualification condition generally must be conducted among those driver-applicants a motor carrier intends to hire or use. Before providing a urine specimen, applicants must be notified that the sample will be tested for the presence of controlled substances.

In an exception to this rule, the FHWA will permit a motor carrier to use a driver without first conducting the required testing, if certain conditions are met. The motor carrier must assure itself that the driver (1) has participated in a drug testing program meeting FHWA requirements within the previous 30 days, and (2) while participating in that program was either tested for controlled substances within the past six months (from date of application with the motor carrier) or participated in the drug testing program for the previous 12 months (from the date of application with the motor carrier). Also, prior to using the driver, the motor carrier must obtain certain information and retain it in the driver's qualification file.

The information (which must be obtained by contacting the controlled substances testing program in which the driver is or was enrolled) must include: the name and address of the testing program; verification that the driver participates or participated in the program; verification that the program conforms to agency regulations; verification that the driver is qualified to drive and has not refused to be tested for use of controlled substances; the date the driver was last tested; and the results, positive or negative, of any test to which the driver submitted.

Motor carriers that use drivers who are regularly employed by other motor carriers are not required to conduct the pre-employment testing before using the drivers, but they must comply with the information collection/verification provision.

Motor carriers that exercise the exemption for drivers they do not employ but use more than once a year must assure themselves once every six months that those drivers participate in a controlled substances testing program that meets the FHWA's requirements. Motor carriers that employ drivers must obtain the information once, at the time of employment.

-- Periodic testing. -- Periodic testing must be conducted at least once every two years beginning with a driver's first medical examination after the motor carrier's implementation of a drug testing program. Periodic testing may be discontinued when all the drivers for the motor carrier who are required to be tested have been tested at least once under the requirements for either pre-employment, periodic, or random testing and the motor carrier is randomly testing at the required 50 percent rate.

-- Reasonable cause testing. -- Reasonable cause testing may be initiated when at least one but preferably two trained supervisors or company officials have observed actions, appearance, or conduct indicative of the use of a controlled substance.

A driver is required to submit to testing, upon reasonable cause, when requested to do so by the motor carrier, and the motor carrier is required to ensure that the driver is transported immediately to a site where a urine sample may be collected.

Documentation on a driver's conduct must be prepared and signed by the witnesses within 24 hours of the observed behavior or before the results of the drug test have been released, whichever is earlier.

-- Random testing -- Random testing programs must be implemented by all regulated employers. Under certain conditions, a motor carrier may, in lieu of a program of its own, use another's program, provided certain information requirements are met. The motor carrier must obtain the name and address of the other motor carrier's testing program; verification that the driver participates in the program; verification that the program meets DOT testing requirements; verification that the driver is qualified and has not refused to be tested for controlled substances; the date the driver was last tested; and the results, positive or negative, of any tests that have been conducted.

During the first 12 months after starting random testing, the motor carrier must meet these minimum conditions: the random testing is spread reasonably throughout the 12-month period; the last test collection during the year is conducted at an annualized rate of 50 percent; and the total number of tests conducted during the 12 months is equal to at least 25 percent of the drivers subject to testing.

Motor carriers may accelerate random testing (reach the 50 percent testing rate in less than one year), but the FHWA expects such testing to be spread reasonably after the initial 12-month period.

NOTE: After a number of lawsuits challenging the constitutionality of the random, biennial, pre-employment, and post-accident testing requirements, compliance with this and certain other portions of the regulations was enjoined under federal court order and, pending judicial resolution of the matter, "deferred until further notice" by the FHWA.

In 1991, the U.S. Court of Appeals at San Francisco upheld the agency's regulations, citing "prior decisions" in which courts have held that government interests in mandating drug testing of federal employees or employees in federally regulated industries whose duties affect public safety outweigh constitutional protections against unreasonable searches.

The Court said the FHWA has a "compelling interest in preventing drivers from using illegal drugs while behind the wheel," and noted that "a single mistake in judgment or momentary lapse in attention can have devastating consequences." Dismissing arguments that the agency lacked sufficient evidence of a serious drug abuse problem among drivers to justify the regulations, the court said that the government's interest in preventing the spread of drug abuse into the industry was itself ample reason for a testing program.

The court also indicated that although it shared concerns about "the substantial inroads drug testing makes on our precious Fourth Amendment freedoms," it found that any intrusions on commercial truck and bus drivers' privacy that would result from testing would be "minimal." "The privacy expectations of commercial truck drivers are markedly less than those of the public in general," the court said, pointing out that the federal government has long regulated such employees' qualifications and requires biennial physical examinations, including urinalysis and other procedures, that produce "substantially reduced privacy expectations."

In 1991, the FHWA issued its final rule (56 Federal Register 40806) informing employers that the injunction was dissolved and establishing an implementation date for random testing by motor carriers with 50 or more drivers subject to testing. The effective date of this final rule for previously enjoined testing was November 14, 1991.

-- Post-accident testing -- A urine sample must be provided by a driver of a commercial motor vehicle involved in a "reportable" accident if, as a result of the accident, the driver receives a citation for a moving traffic violation. (A "reportable" accident is any accident involving a commercial motor vehicle that results in death, bodily injury requiring medical treatment away from the accident scene, or property damage totaling $4,400 or more.)

The driver is required to provide the specimen as soon as possible, but not later than 32 hours, after the accident, and must ensure that the sample is collected and forwarded for testing by a National Institute on Drug Abuse certified laboratory. The motor carrier must ensure that the testing performed by the laboratory conforms to federal requirements.

A driver who is too seriously injured to provide a urine specimen is required to provide the authorization necessary to obtain hospital reports or other documents that would indicate whether drugs were in the driver's system at the time of the accident.

To enable drivers to comply with FHWA's post-accident testing provisions, motor carriers are required to pro- vide necessary information and procedures that drivers are to follow in the event of an accident that triggers testing.

NOTE: Certain mandatory post-accident testing of commercial motor vehicle operators was enjoined by a federal court order and was "deferred until further notice" by the FHWA. The agency indicated that motor carriers nationwide must carry out pre-employment, pre-use, periodic, reasonable cause, and un-enjoined post-accident drug testing in accordance with the schedule specified in the November 21, 1988, final rule.

"Un-enjoined post-accident testing," as permitted under terms of the court injunction, has been defined as testing when there is any reasonable suspicion of drug use, or reasonable cause to believe that a driver has been operating a vehicle while under the influence of drugs, or reasonable cause to believe the driver was at fault in the accident and drug use may have been a factor.

On February 1, 1990, the FHWA issued an interim final rule that, among other things, amended the post-accident testing requirement. The amended requirement (see 55 Federal Register 3546, 3557) was that a commercial motor vehicle driver must be issued a citation for a moving traffic violation arising from an accident.

The effect of "un-enjoined post-accident testing" was that a motor carrier was required to test a commercial motor vehicle driver after the driver was involved in a reportable accident if the driver was issued a citation for a moving traffic violation and there was any reasonable suspicion of drug use, reasonable cause to believe the driver was operating the vehicle while under the influence of drugs, or reasonable cause to believe the driver was at fault in the accident and drug use may have been a factor.

In 1991, the U.S. Court of Appeals at San Francisco upheld the constitutionality of the FHWA's drug testing regulations, including the post-accident testing rules, in their entirety, finding them to be "constitutional on their face."

After dissolution of the federal district court injunction on certain post-accident testing, the FHWA issued a final rule (56 Federal Register 40806) informing employers that the agency was proceeding with full implementation of all components of the drug testing program. This final rule, effective November 14, 1991, establishes the implementation schedule for previously enjoined drug testing by motor carriers.

As for previously enjoined post-accident testing, the rule indicates that motor carriers must test drivers who are issued citations for moving traffic violations, whether or not they have any reasonable suspicion of drug use or reasonable cause to believe a driver was under the influence or at fault in an accident in which drug use may have been a factor.

To differentiate this type of testing from previously un-enjoined post-accident testing, the FHWA included in the rule issued on August 16, 1991, a definition for "non-suspicion-based post-accident testing." The definition of this term, which is used in the final implementation schedule, is as follows:

-- Non-suspicion-based post-accident testing means testing of a commercial motor vehicle driver after a reportable accident:

-- If the driver receives a citation for a moving traffic violation arising from the accident; and

-- Without regard to whether there is any reasonable suspicion of drug use, reasonable cause to believe the driver has been operating the commercial motor vehicle while under the influence of drugs, or reasonable cause to believe the driver was at fault in the accident and drug use may have been a factor.

Informing Employers and Drivers of Test Results

Medical review officers are required to notify motor carriers of positive or negative drug-test results. For a positive test, MROs must indicate which drug was discovered.

Motor carriers must communicate test results to driver-applicants only if the applicants request the information within 60 days of being notified that they will not be hired. They must inform drivers of the results of a periodic, random, reasonable cause, or post-accident test only if the results are positive. Drivers also must be advised as to which controlled substance was identified in any positive test.

Employee Communication with MRO

A motor carrier's MRO is required to give a tested employee an opportunity to discuss a positive test result before the result is reported to the employer. The MRO is required to make and to document all reasonable efforts to communicate with the tested driver. Such efforts include asking the motor carrier's designated management official to arrange for the employee to contact the MRO before he or she reports for duty. The MRO may verify a positive test result without first communicating with the tested driver if:

-- The driver expressly declines the opportunity to discuss the result; or

-- Within five days after a documented contact by the designated management official, the driver fails to contact the MRO.

If a MRO reports a positive test result without having discussed the result with the employee, the fact must be noted when the result is reported to the motor carrier, and it must be accompanied by complete documentation of the MRO's efforts to communicate with the driver.

Sanctions Authorized by FHWA

Job applicants cannot be hired if they test positive for illegal drug use.

Employees who refuse to be tested or who test positive are to be considered medically unqualified to operate a commercial motor vehicle in interstate commerce. They may not be permitted to operate a motor vehicle until they:

-- No longer use controlled substances;

-- Test negative for use of controlled substances;

-- Are medically re-certified as being qualified to operate a vehicle;

-- Continue to participate in any program of after-care required by an employee assistance program counselor;

-- Agree to be subject to follow-up testing for up to 60 months after returning to duty.

No employee who tests positive for drug use has to be offered an opportunity for rehabilitation, the rules point out.

Any driver involved in a fatal accident who refuses to be tested or tests positive must be deemed medically unqualified to operate a commercial motor vehicle for one year.

Employee Assistance Programs

Employers are required to develop an employee assistance program providing drug education and training for all drivers, as well as supervisory personnel and company officials. EAP training programs must consist of at least 60 minutes of training. Training must cover -- at a minimum -- the effects and consequences of controlled substance use on personal health, safety, and the work environment and the manifestations and behavioral changes that may indicate controlled substance use or abuse.

Training given to drivers and supervisory personnel must be documented and the documentation retained by the employer.

Confidentiality of Test Data

No person may obtain individual test results retained by an MRO, and no MRO may release the test results of any employee to any person, without first obtaining the tested employee's written authorization. The MRO, however, is not prohibited from releasing such information to the tested employee's employer.

Similarly, no person may obtain test-result information retained by an employing motor carrier, and no motor carrier may release such information about any employee or former employee without first obtaining the tested employee's written authorization.

Recordkeeping for FHWA

Motor carriers are required to retain for five years all records pertaining to the administration and results of controlled substances testing programs. They must retain for a minimum of one year records of individual negative test results.

Specific records required to be kept include:

-- Administrative records pertaining to the employer's controlled substances testing program. Administrative records are to include agreements with collection facilities, laboratories, MROs, consortia, names and positions of company officials and their role in the motor carrier's testing program, monthly laboratory summaries, and recordkeeping and testing procedures, including random testing selection and notification procedures.

-- An annual calendar year summary of the results of tests performed. The summary is to include the following information: number of drivers subject to controlled substances testing; number of drivers subject to testing under the anti-drug rules of more than one DOT agency, identified by each agency; number of specimens collected by type of test (pre-employment, random, reasonable cause or suspicion, post-accident); number of positives verified by a MRO by type of test, type of controlled substance; number of negatives verified by a MRO by type of test; number of persons denied a position as a driver following a verified controlled substances test; number of drivers verified positive by a MRO who were returned to duty as drivers during the reporting period; number of drivers with tests verified positive by a MRO for multiple controlled substances; number of drivers who refused to submit to a controlled substances test required under the FHWA's anti-drug rules; and number of supervisors who have received required training during the reporting period.

The requirements pertaining to administrative records and the annual summary reflect amendments to the FHWA's anti-drug program rules that became effective on January 1, 1994. (See 57 Federal Register 59539, December 15, 1992, and 58 Federal Register 68220, December 23, 1993.)

-- A written statement outlining the motor carrier's employee assistance program. The statement must be kept on file and be available for inspection at the employer's principal place of business.

-- Employee qualification files. Motor carriers are required to retain in drivers' qualification files information that will indicate only the following: the types of controlled substances testing for which a urine specimen was submitted; the date of the collection; the location of the collection; the identity of the person or entity performing the collection, analyzing the specimen, and serving as the MRO; and whether the test finding was positive or negative and, if positive, for which controlled substance(s).

The medical review officer employed by each motor carrier is designated the sole custodian of test results, and is required to retain reports of test results for at least five years.

All records related to the administration and results of controlled substance testing must be produced upon demand of, and permitted to be examined by, the FHWA.

Reporting

Motor carriers are selected at random and notified in writing by the FHWA to report annual summary information, which is used to evaluate controlled substances testing requirements.

FHWA Compliance Dates

As specified in the FHWA's final rule issued on August 16, 1991 (56 Federal Register 40809), the implementation schedule for motor carrier drug testing programs is:

-- Motor carriers with 50 or more "drivers subject to testing" on December 21, 1989, are required to implement a program for controlled substances testing, except random and "non-suspicion-based" post-accident testing by December 21, 1989, for "drivers subject to testing" and by December 21, 1990, for all commercial motor vehicle drivers.

To determine whether they meet the size threshold, motor carriers must evaluate their employment records, driver contracts, and all other related documents as of December 21, 1989; further, to determine the number of "drivers subject to testing," motor carriers must consider drivers at all terminals and other facilities operated by the carriers, regardless of whether the carriers have obtained a "divided record authority.")

-- Motor carriers with 50 or more "drivers subject to testing" are required to carry out random and "non-suspicion-based" post-accident testing for all commercial motor vehicle drivers.

-- Motor carriers with fewer than 50 "drivers subject to testing" required to carry out a program for controlled substances testing, other than random and "non-suspicion-based" post-accident testing for all commercial motor vehicle drivers.

-- All motor carriers are required to have a drug testing program that conforms to FHWA and DOT regulations by January 1, 1992, or by the date a motor carrier begins motor carrier operations, whichever is later.

Foreign-Based Employees

Since 1995, testing programs for foreign-based employees of foreign-domiciled carriers operating from a base of operations located outside the U.S. must also be in place.