Ms. Patrice Kelly
Acting Deputy Director of Policy
Office of Drug and Alcohol Policy and Compliance
Department of Transportation
1200 New Jersey Avenue, SE
Washington, DC 20590
RE: Procedures for Transportation Workplace Drug and Alcohol Testing Programs: State Laws Requiring Drug and Alcohol Rule Violation Information Docket No. OST–2008–0184, Interim Final Rule
Dear Ms. Kelly:
The Transportation Trades Department, AFL-CIO (TTD) is pleased to submit this letter in response to the Department of Transportation’s (DOT) request for comments on the above captioned interim final rule.
The amendments to the drug and alcohol testing procedures, which authorize employers to respond to state law requirements to disclose positive drug test result information to state commercial driver licensing (CDL) authorities without the written consent of the employee, raise serious concerns. We recognize that impaired workers can pose a risk to themselves, their co-workers and the public. However, we strongly believe that without the appropriate safeguards in place, DOT should not permit employers to disclose positive drug test results without the written consent of the employee. Any drug and alcohol testing program must carefully consider the legitimate privacy interest of transportation employees and should only intrude upon those interests to the extent necessary to address public safety concerns.
DOT must ensure that state law provides the same protections and limitations as the federal DOT drug and alcohol testing laws before authorizing employers to disclose positive drug test results to state CDL authorities. Federal regulations state that the drug and alcohol testing records are maintained in an individual’s driver record for no more than two years. DOT must ensure that states with laws requiring employers to disclose positive drug test result information to CDL authorities must also have laws consistent with the federal two year look back. Otherwise, transportation workers may be held to separate and uncoordinated standards.
This interim final rule neither addresses what occurs after employers disclose positive test results to state CDL authorities, nor what recourse a worker has should he or she be mistakenly reported to state CDL authorities. First, because the amendments to 49 CFR Part 40 in this interim final rule waive the requirement of an employee’s written consent prior to disclosing a positive test result, states should notify individuals upon receipt of a positive test result from an employer. Additionally, a worker must have the ability to offer any corrections to the information contained in their driver record and be able to remove incorrect information. Finally, DOT must ensure that once an employee has successfully completed the DOT Return to Duty process, drug and alcohol testing results are purged from his or her driver record. Prior to authorizing employers to respond to state law requirements to disclose positive test result information, DOT must make certain that the state has such safeguards in place.
Thank you in advance for consideration of our views.
Comments on TTD letterhead