DOT Drug/Alcohol Testing Developments

Is Your Workplace Affected by Recent Marijuana Legislation?

Monday, January 21, 2013 15:15

The following states passed marijuana legislation in November of 2012:

  • Massachusetts – Medical marijuana legalized and regulated
  • Colorado and Washington – Recreational marijuana legalized and regulated

Contrary to much discussion, this does not mean that employers in these states must now permit marijuana usage by their workforces. Employers still may have and enforce drug testing and usage prohibition policies. Massachusetts and Colorado legislation specifically addresses this issue:

Massachusetts:

“Nothing in this law requires any accommodation of any on-site medical use of marijuana in any place of employment, school bus or on school grounds, in any youth center, in any correctional facility, or of smoking medical marijuana in any public place.”

Colorado:

“Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”

Keep in mind that federal law, which prohibits the use of marijuana, even for medicinal purposes, trumps state law. Additionally, if employers are subject to federal guidelines for testing such as those propounded by the U.S. Department of Transportation, state law provisions for testing or accommodation are preempted.

For additional information, contact PWA at info@pwassociates.net

Popular EBTs Removed from Conforming Products List

Sunday, July 15, 2012 12:37

On June 14, 2012, the National Highway Traffic Safety Administration issued its latest Conforming Products List (CPL) of Evidential Breath Alcohol Measurement Devices. Only the make and models provided on this list may be used as Evidential Testing Devices for DOT alcohol tests conducted under 49 CFR Part 40.

While the CPL added nine new instruments to the list, four instruments widely used among DOT-regulated employers and their collection sites, were removed from the list:

Lifeloc Technologies, Inc.:
PBA 3000B
PBA 3000-P
PBA 3000 C
Alcohol Data Sensor

These products were removed because they were determined to be obsolete and are no longer manufactured or supported by the manufacturer.
Covered employers should consult with their Breath Alcohol Technicians to ensure that these EBTs are not in use. Tests that may have been conducted using these instruments after June 14, 2012 must be cancelled.

MRO Clarifications Provided by DOT

Tuesday, February 7, 2012 12:22

Medical Review Officer (“MRO”) Must Maintain CCF Originals

The Department of Transportation (“DOT”) has clarified that, while copies of Copy 2 (MRO’s version) of the Control and Custody Form (“CCF”) may be scanned and stored electronically, original hard copies must be retained as set forth in 49 CFR Part 40.163(e) to allow for inspections and audits. All records, hard-copy and electronic, must be easily and quickly accessible, legible, formatted, and stored in a well-organized manner. DOT-regulated employers should check with their MROs to ensure this record-keeping requirement is being met.

MROs’ Right to Contact Employees’ Treating Physicians

The DOT has clarified that “MROs need no written authorizations from employees to verify drug test results, to discuss alternative medical explanations with prescribing physicians and issuing pharmacists, to report results to employers, to confer with Substance Abuse Professionals and evaluating physicians, or to report other medical information. As has been the DOT’s position for several years, Health Insurance Portability and Accountability Act (“HIPAA”) rules do not apply to MROs carrying out their verification process duties under 49 CFR Part 40.327. MROs, in fact, are encouraged to contact the treating physician if the MRO has suspicions or questions resulting from an employee-provided medical explanation during the verification interview. Likewise, MROs are encouraged to contact the pharmacy to verify the legitimacy of a prescription.

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