ASK ALICE
In each issue we will be answering questions submitted by members. If you have a question to be answered, please submit it to info@datia. org with Ask Alice in the subject line. Enjoy.
QUESTION: Can an employer wishing to conduct pre-employment alcohol testing do so for DOT-mandated employees?
ANSWER: • A DOT-regulated employer (except under USCG rules) wishing to conduct pre-employment alcohol testing under DOT authority may do so if certain conditions are met.
• Te testing must be accomplished for all applicants (i.e., the employer cannot select for testing some applicants and not others) and the testing must be conducted as a post-offer requirement (i.e., the employer needs to inform the applicant that he or she has the job if he or she passes a DOT alcohol test).
• In addition, the testing and its consequences must comply with requirements of Part 40.
ODAPC Statement: Originally Issued 09/01; Revised 03/10
QUESTION: Are employers and their service agents in the Department of Transportation (DOT) drug and alcohol testing program required to obtain employee writen authorizations in order to disclose drug and alcohol testing information?
ANSWER: • In the DOT drug and alcohol testing program, employers and service agents
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are not required to obtain writen employee authorization to disclose drug and alcohol testing information where disclosing the information is required by 49 CFR Part 40 and other DOT Agency & U.S. Coast Guard (USCG) drug and alcohol testing regulations. 49 CFR Part 40 and DOT Agency & USCG regulations provide for confidentiality of individual test-related information in a variety of other circumstances.
• Even if drug and alcohol testing information is viewed as protected under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) rules, it is not necessary to obtain employee writen authorization where DOT requires the use or disclosure of otherwise protected health information under 49 CFR Part 40 or the other DOT Agency & USCG drug and alcohol testing regulations.
• Unless otherwise stipulated by 49 CFR Part 40 or DOT Agency & USCG regulations, use or disclosure of the DOT drug and alcohol testing information without a consent or authorization from the employee is required by the Omnibus Transportation Employees Testing Act of 1991, 49 CFR Part 40, and DOT Agency & USCG drug and alcohol testing regulations.
• Consequently, an employer or service agent in the DOT program may disclose the information without the writen authorization from the employee under many circumstances. For example: • Employers need no writen authorizations from employees to conduct DOT tests.
• Collectors need no writen authorizations from employees to perform DOT urine collections,
to distribute Federal Drug Testing Custody and Control Forms, or to send specimens to laboratories.
• Screening Test Technicians and Breath Alcohol Technicians need no writen authorizations from employees to perform DOT saliva or breath alcohol tests (as appropriate), or to report alcohol test results to employers.
• Laboratories need no writen authorizations from employees to perform DOT drug and validity testing, or to report test results to Medical Review Officers (MROs).
• MROs need no writen 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 (SAPs) and evaluating physicians, or to report other medical information (see §40.327).
• SAPs need no writen authorizations from employees to conduct SAP evaluations, to confer with employers, to confer with MROs, to confer with appropriate education and treatment providers, or to provide SAP reports to employers.
• Consortia/Tird Party Administrators need no writen authorizations from employees to bill employers for service agent functions that they perform for employers or contract on behalf of employers.
• Evaluating physicians need no writen authorizations from employees to report evaluation information and results to MROs or to employers, as appropriate.
• Employers and service agents need no writen authorizations from employees to release information to requesting Federal, state, or local safety agencies with regulatory authority over them or employees. ODAPC General Issue Update 07/2006
Fall 2015
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