FTA Drug and Alcohol Regulation Updates
Issue 26, page 6

FOR YOUR INFORMATION

Where to Find? .....

DHHS Labs
The current list of DHHS certified labs is published the first week of each month and is printed in the Federal Register under the Substance Abuse and Mental Health Services Administration (SAMHSA) heading. Only those labs certified can be used for FTA drug testing. The list should be checked monthly as new labs are being added and others are being removed.
Website location: www.workplace.samhsa.gov/
ResourceCenter/lablist.htm

To verify the certification status of a laboratory, DHHS has established a telephone HELPLINE (800) 843-4971.












 

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

SAPs with the MAC certification join licensed physicians, licensed or certified social workers, licensed or certified psychologists, licensed or certified employee assistance professionals, and drug and alcohol counselors certified by the National Association of Drug Abuse Counselors Certification Commission (NAADAC) or by the International Certification Reciprocity Consortium/Alcohol and Other Drug Abuse (ICRC).

The recognition of MAC certified counselors resulted in an immediate increase in the number of counselors eligible to become SAPs. This increase is timely as the deadline for the SAP “qualification training” requirement passed on December 31, 2003. As a result, an unknown number of practicing SAPs that have not met the “qualification training” requirement are no longer eligible to perform SAP duties as of this date.

Supreme Court Decides ADA Case

On December 2, 2003, the United States Supreme Court decided a case that has potential implications for all employers with DOT covered drug and alcohol testing programs. The case, Raytheon Co. v. Hernandez, centered on the question of whether an individual’s civil rights were violated when the company refused to rehire him following a positive drug test and subsequent rehabilitation. The company had a policy not to rehire previous employees that were fired for misconduct.

Hernandez argued that the company violated the Americans with Disabilities Act (ADA) by refusing to hire him because of his past drug addiction. The ADA protects individuals with disabilities from discrimination. Current drug use is not protected by the ADA, but an individual with a previous drug addiction that has been rehabilitated is afforded ADA protections.
The Court decided, however, that the employer’s neutral no-rehire policy did not unlawfully discriminate against Hernandez on the basis of a disability. The court decided in a 7-0 ruling that a no-rehire policy based on employee misconduct was a legitimate reason for not rehiring the individual and did not constitute discrimination. The no re-hire policy was clearly stated in the company’s employee handbook and the company consistently enforced the no re-hire policy for all misconduct, not just that associated with drug or alcohol use.

Gonzalez Case--Final Judgment

Gonzalez v. Metropolitan Transportation Authority was initially filed in April 1996 on behalf of a radio dispatcher and instructor employed by the Los Angeles County Metropolitan Transportation Authority (LACMTA). The plaintiffs argued that their positions were not safety-sensitive and consequently should not be subject to FTA drug and alcohol testing. The 9th U.S. Circuit Court of Appeals based in San Francisco questioned whether the employees at issue would pose a substantial immediate threat to public safety if impaired by drugs or alcohol, or whether the procedure for testing them would be reasonably effective for finding out if they were impaired, or whether the tests as performed were an undue invasion of their privacy.

Onlookers followed this case very closely as the outcome had potential implications for raising the standard for safety-sensitive job functions. On January 6, 2004, however, the final judgment was entered in favor of the LACMTA and against the plaintiffs. The court determined that the job duties performed by the radio dispatcher and the instructor were sufficient to be considered safety-sensitive, and thus, the plaintiffs were subject to FTA drug and alcohol testing. The court upheld as constitutional, random drug testing of employees who may be called upon to perform safety-sensitive tasks, regardless of frequency.