Clarifications

FTA Drug and Alcohol Regulation Updates
Issue 14, page 7

MIS Report Reminder

   1999 Drug and Alcohol MIS reports are due by March 15, 2000. The reports must be submitted to: USDOT/Volpe Center, Drug and Alcohol MIS Program Office, DTS-781, 55 Broadway, Kendall Square, Cambridge, MA 02142-1093.
   Recipients of Section 5311 funds should forward their MIS reports to their local state Department of Transportation. Check with your local state DOT representatives for due date, contact person, and mailing address.
   Employers are strongly encouraged to provide supplemental information on any data abnormalities in their reports. Additionally, employers are encouraged to express their opinions of the software and make suggestions for improvements.
   If you have questions or require clarification on any aspect of the report or software, please contact the Drug and Alcohol MIS Project Office at (617) 494-6336.

Results Allowed At Disciplinary Hearings

   The FTA drug and alcohol regulations (653.75 and 654.55) define the specific circumstances when the employer is permitted to disclose test results to third parties. Third party hearing examiners that conduct disciplinary proceedings on behalf of employers are not specifically named. Subsequently, clarification has been sought on whether an employer is allowed to permit disclosure of positive drug and alcohol test results to these decision makers in employee disciplinary proceedings.
   The restrictions on information disclosure were intended to prohibit disclosure of test results by employers to third parties who are not involved in the internal management of the employer’s alcohol and substance abuse program.
   Since hearing examiners conducting disciplinary proceedings on behalf of an employer are involved in the management of that employer’s alcohol and substance abuse program, they are allowed to have access to test results under the regulations.

Second Opinions Not Allowed

   The integrity of the drug testing process as delineated in 49 CFR Part 40 depends in large part upon the expertise of the Medical Review Officer (MRO). The MRO is responsible for verifying a confirmed laboratory positive as either positive or negative based on his/her professional judgment and the employee’s medical history and support documentation provided. An employer, employee, or employee representative who disagrees with the MRO’s assessment of the facts, has no authority to seek a second opinion. The employer must act only on the conclusion of the MRO.
   Likewise, the regulation does not allow for a second opinion in an insufficient volume circumstance when a physician determines that there is no legitimate medical explanation for the failure of the employee to provide a sufficient amount of breath or urine, and therefore, deems the insufficient volume a refusal.
   Second opinions are also not allowed on SAP evaluations, SAP return-to-duty assessments, and SAP follow-up testing schedule decisions.
   SAPs and MROs are required to have the academic training, knowledge, and clinical experience to perform their respective functions under the DOT testing regulations, and thus, their decisions hold.
   The regulation therefore does not allow employees or employers to “shop around” for second opinions.

Q:  Where can I get additional MIS reporting forms and instructions?

A:  Additional reporting materials and assistance are available from the Office of Safety and Security website, located at http://transit-safety.
volpe.dot.gov/damis, or by calling the Drug and Alcohol Project Office at (617) 494-6336.

The information presented on this page should be used to update Chapters 2 and 9 of the Implementation Guidelines.