In a 119 page document, the Department of Transportation announced in the Federal Register that it is revising its drug and alcohol testing procedures regulation. (65 FR 79462, December 19, 2000) The purposes of the revision are to make the organization and language of the regulation clearer, to incorporate guidance and interpretations of the rule into its text, and to update the rule to include new provisions responding to changes in technology, the testing industry, and the Department's program. The rulemaking takes effect in two stages.

Certain changes to the existing regulations in 49 CFR Part 40 become effective January 18, 2001. A completely reorganized 49 CFR Part 40 becomes effective August 1, 2001. These regulations apply to all parties who conduct drug and alcohol tests required by DOT agency regulations, including regulations published by the Coast Guard and Office of Pipeline Safety.

The reorganized rule is in a greatly simplified question and answer format specifically directing particular parties to take particular actions (e.g., "As an employer, you must * * *"). In addition, DOT has attempted to rewrite the regulations in plain language.

Among the significant issues addressed in the new rule is one related to stand-down, the employer practice of a temporarily removing an employee, such as a crew member, from performance of safety-sensitive duties upon learning that the individual had a confirmed laboratory positive drug test, but before the Medical Review Officer completed the verification process. The existing regulation prohibits stand-down. The revised regulation includes a procedure that permits employer, on a case-by-case basis, to request DOT agency approval for a specific, well-founded stand-down plan that effectively protects the interests of employees.

The new regulations also include a Public Interest Exception (PIE). Under these provisions a DOT-regulated employer could be directed not to use certain persons and organizations that provide drug and alcohol testing services that have been found to be in serious non-compliance with 49 CFR Part 40.

Pending Audits?