Drug Testing

Required Testing

In 1988 an Amtrak accident resulted in 18 fatalities. Subsequently, it was determined that the conductor was under the influence of drugs. As a result, in November 1988 the Department of Transportation instituted a drug testing program that mandated drug testing of aviation, interstate motor carrier, railroad, pipeline and commercial marine employees. This led to a number of lawsuits, many of which went all the way to the Supreme Court.

The Department of Transportation, however, won every case except one, which involved the drug testing of people who work in the mass transit industry. Because the majority of regulations passed constitutional muster, many of the same rules became a part of the first major drug-testing legislation aimed at the transportation industry.

New York City Subway Accident

Awareness of the threat of the abuse of drugs and alcohol in the transportation industry was significantly heightened by the tragic New York City subway accident in 1991 that killed four people, injured hundreds and caused millions of dollars of damage.

The conductor left the scene of the accident and was later found by authorities drinking at a bar. When tested, his blood alcohol level was .24, more than twice the legal limit. Even though he used the defense that the alcohol was ingested after the accident, conclusive evidence was presented at trial that proved he was legally intoxicated at the time of the accident. Interestingly, this one issue led to the creation of one of the rules incorporated into subsequent legislation that prohibits a person covered by the legislation from ingesting alcohol eight hours following an accident or until testing when the employee knows of the accident and the employee's performance has not been discounted as being a contributing factor.

Current Legislation

As a result of the New York City subway accident and concluding that "alcohol abuse and illegal drugs pose significant dangers to the safety and welfare of the Nation," Congress passed Public Law 102-143--the Omnibus Transportation Employee Testing Act of 1991 (OTETA).

OTETA requires alcohol and drug testing of persons employed in the aviation, motor carrier, railroad, and mass transit industries affecting approximately seven-and-one-half million employees nationwide. The rules were published in February 1994, with implementation required on January 1, 1995, for employers with 50 or more safety-sensitive drivers and January 1, 1996 for all other employers.

Who Is Affected?

By far, the largest group covered by OTETA is in safety-sensitive positions governed by the Florida Highway Administration. A safety-sensitive position is one that requires a Commercial Driver's License (CDL) in order to qualify for the position.

A CDL is required if (1) the vehicle weighs 26,001 pounds or more; (2) the vehicle is designed to transport 16 or more persons, including the driver; or (3) a vehicle of any size that carries hazardous materials.

For example, this would include all bus drivers but may not include the mechanics who work on the buses unless they are required to test drive or move the vehicles.

Employers must be keenly aware of who is to be tested and under what conditions in order to prevent lawsuits by violating employees' Fourth Amendment right to be free of "unreasonable" searches.

Types of Testing

OTETA requires pre-employment, reasonable suspicion, post-accident, random and return to duty/follow-up testing. Each type of testing requires specific criteria to be followed.

Optional Testing

Companies today may set their own testing guidelines provided they are in keeping with state and federal laws. Even though there has been considerable controversy surrounding drug testing, programs, including anti-drug education and counseling have been adopted by nearly every major American company. Although these programs cost hundreds of millions of dollars, according to executives and industrial drug experts, they have resulted in fewer accidents, lower absenteeism and less employee turnover. Experts say they have also contributed to a general decline in casual drug use throughout the country, according to "Drug Testing is Vital in the Workplace," an article appearing in USA Today, January 1995.

While proponents of drug testing feel that no company is too small to suffer the negative effects of drug abuse and benefit from drug testing, management guru of the '90s, Tom Peters, co-author of In Search of Excellence, has stated that he considers drug testing in the workplace "utter, unadulterated rubbish!" While speaking out against a "spaced-out" workforce, he maintains that effective recruiting strategy and the absolute necessity of creating a caring, nurturing environment characterized by mutual respect and trust far outweighs the necessity of violating an employee's privacy.

Final Words of Caution

It is essential that strict guidelines be followed for any drug testing program. If your company is unionized, even when testing is mandated by law, procedures to be followed must first be discussed at the bargaining table. The only exception to the bargaining rule is pre-employment testing.

Your testing procedure, including chain of custody of the donor's urine specimen must follow the guidelines set forth by the Department of Health and Human Services in order to be legally defensible for worker's compensation claims and in the courts. It is strongly advised that you seek legal approval of any testing program prior to its implementation. More information along with copies of the alcohol and drug rules can be obtained from public libraries that subscribe to the Federal Register and the FHWA Electronic Bulletin Board Service.

Dr. Madeleine Doran is an associate professor and coordinator of the Master of Science Degree Program in Human Resources Development and Administration at Barry University in Fort Myers.