DOT
Issues
New
Drug
Testing
Rules,
8.5
Million
Workers
Get
a
Little
More
Protection
12/22/00
The US Department of Transportation last week issued new rules for drug testing that will provide greater protections for transportation workers subject to such tests under federal public safety laws. The rule change will affect about 8.5 million workers, mainly bus and truck drivers, airline flight crews and mechanics, and railroad employees. The change provides for retesting of urine samples that have failed "validity testing," which is supposed to determine whether samples have been adulterated or diluted to hide evidence of drug use. Under the current rules, workers whose samples fail the validity test are considered cheaters and are typically fired. Persons whose drugs tests -- for amphetamines, cocaine, heroin, marijuana, and PCP -- come back positive, however, have the right to request new tests. The DOT rule changes will extend similar protections to those now deemed cheaters. In the first change, employers may now hire a physician to review lab results that indicate tampering with samples. If the physician finds that the test result comes from a legitimate medical reason, he or she can cancel the finding of tampering. In the second change, employees can ask that a different lab test a sample of their specimens if the first lab finds evidence of tampering. The rule changes came after a challenge to the procedures for validity testing at LabOne, Inc., a Kansas facility. A subsequent investigation by the Department of Health and Human Services (HHS) revealed widespread problems in validity testing in the program's 65 participating laboratories. Last year, Delta Airlines fired a pilot and four flight attendants after their samples were deemed invalid by LabOne. Although the Delta employees strongly maintained their innocence, under DOT rules they had no right to challenge the findings or their firings. But as the fired pilot, aided by the Air Line Pilots Association, appealed the subsequent revocation of his pilot's license, he found evidence that the lab had failed to follow government standards and had falsified evidence in its attempt to cover-up that failure. In September, Delta agreed to reinstate the pilot and the flight attendants. In October, HHS began to survey validity testing practices industry-wide. On December 14th, the same day that DOT announced the rule changes, HHS announced that, based on its review, it would instruct the laboratories to nullify the results of validity tests failed by 250 to 300 workers. DOT does not have precise figures on the number of workers who have been fired for failing validity tests. It does, however, cite figures from Quest Diagnostics, which reported that roughly 2,000 out of 650,000 drug tests it did for the government last year had validity problems. Robert Morus, a Delta pilot who is the pilots' union's lead man on the issue, told the New York Times the numbers are "telling us how broad the issue is." DOT officials, meanwhile, insisted the rule changes had nothing to do with the irregularities at LabOne or those found in the HHS investigation. The department also announced that validity testing for the government-mandated drug tests, which had been voluntary for transportation companies since 1998, will become mandatory once it reviews its standard at the end of next summer. "We have to protect the integrity of the program," said Mary Bernstein, director of DOT's Office of Drug and Alcohol Policy and Compliance. "We would not be doing what was necessary in terms of safety in the workplace if we did not address the problem of cheating," she told the New York Times. Unions representing transportation workers welcomed the changes, but said they did not do enough to protect workers' rights. The Air Line Pilots Association told the Times it wanted workers to gain the right to challenge test results, instead of having to rely on a medical review officer hired by the employer. The pilots' union and others also criticized the standard the government uses to determine whether samples are fraudulent. The government standard measures levels of creatinine, a byproduct of muscle metabolism. Samples with less than 20 milligrams of creatinine per decaliter are considered "diluted," while those with less than 5 milligrams are considered "substituted." But the Times quoted "some forensic toxicologists" as saying the standard was too high. According to those experts, a "small but significant" number of workers could fall beneath the standards if they drank a lot of water before the tests, if they suffered from any of several disorders, or even if they are small people who do not eat meat. Also, women excrete less creatinine than men do, they said. After criticism of the creatinine standard earlier this year, HHS officials defended the science on which it is based, but announced that they were beginning a review of the standard.
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