Whither the Whizzinator?

Industry drug testing procedure mandatory for second offenders


When I was younger I possessed the bike of my life … a Whizzer motor bike. Remember? They came mounted on a Schwinn spring fork bike or in a box with just the motor and the mounting parts … $99 complete for the kit. How times change.

The “Whizzinator” has nothing to do with a bike motor but I thought when reading of it in the case cited below that the comparison was interesting simply because of the similar-sounding name. Here is a summary of the case. Read on.

The case
The D.C. Federal Court of Appeals just published its recent decision concerning the arcane subject of direct observation of drug enforcement testing. The petitioner in the case was a railway company employer and the respondent was the U.S. Department of Transportation.

We have discussed the issue of drug testing many times in this column and it will be useful to review it again here because it is of some importance to all who work in the common carrier transportation business.

Testing and permanent bar
As we all should know by now, there are several events that prompt drug and alcohol testing. They include pre-employment, random, reasonable cause, return to duty, and post accident. Those of us in any safety-sensitive job are mostly familiar with random urine drug testing procedures.

The important thing to remember is the permanent bar from performance of a safety-sensitive job function after what I call one bite at the apple. An employee who has a verified positive drug test result on two drug tests required by appendix I to Part 121, of the regulations (including Part 135, 145) is permanently precluded from performing for his employer and any other, the safety-sensitive duties the employee performed prior to the second drug test. It becomes very important to an employee in the transportation business who has one verified positive drug test to pass any second test he or she is required to take, randomly or otherwise.

Further, we should keep in mind that an employee who has engaged (been caught) in a prohibited drug use during the performance of a safety-sensitive function is permanently precluded from performing that function for any employer (no bite).

These rules, of course, apply to alcohol use as well as illegal drug use. Alcohol misuse is a far greater problem for society than the use of illegal drugs. Alcohol is, of course, a drug — but not an illegal drug. It is not illegal for an employee to consume alcohol so long as he or she is not under the effects of alcohol while performing a safety-sensitive job. However, due to the fact that alcohol is metabolized faster than most illegal drugs, the time period in which to test is much shorter. The rules are spelled out in the regulations.

Testing was put in place by the Omnibus Transportation Employee Testing Act of 1991 and the regulations were published pursuant to this statute.

The rule
Employees who fail to take or are found positive on a drug test are removed from any safety-sensitive position until they complete drug treatment under a formal substance abuse program. After successful completion of the abuse program the employee must pass a return-to-duty drug test before resuming a safety-sensitive job. Also, during the following 12 months, he or she must successfully pass six random follow-up urine tests in order to continue on the job. The Department, in support of “direct observation” requirements, states that knowing this fact in advance provides these people an opportunity to easily obtain cheating devices and keep them handy, even for unannounced follow-up tests.

Direct observation
Currently, and prior to the rulemaking in this case, which has been stayed pending a final decision, employers have the option of conducting return-to-duty and follow-up tests using so-called “direct observation” which requires a same gender observer to watch the urine go from the employee’s body into the collection container.

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