Alcohol and drug testing for truck drivers operating into the US has been a reality for Canadian carriers for about two decades. But now the US DoT is tweaking its regulations for transport workers and these changes will no doubt impact Canadian truckers whose work takes them across the border. The good news is that, as of Jan. 1, the Federal Motor Carrier Safety Administration (FMCSA) has dropped its random drug testing rate to 25% from 50%. This comes as a result of low failure rates during the years 2011-13. The overall rate currently sits at about 0.5%. Alcohol breathalyzer testing was lowered from 25% to 10% several years ago because of similarly low failure rates.
More importantly though, Canadian carriers are waiting for the FMCSA to publish its final rule on implementing a “Clearing House” for commercial driver licence-holders who have failed or refused a drug test. US legislators have been concerned that drivers who have been terminated or flagged after positive test results have been, until now, able to move undetected from one carrier to another. The proposed Clearing House database would make it very difficult, if not impossible, for them to do so. Under the new rule, employers will be required to consult this database when hiring new drivers, upload names of failed drivers, and query the database once a year regarding the status of their current drivers.
Some privacy concerns have been addressed. For instance, when a driver’s name appears on the list, he or she would be required to sign a consent form before details about test results, substance abuse treatment and follow-up tests could be released. But the situation is more problematic for Canadian carriers who have to play by US rules; human rights and disability issues are viewed much differently on this side of the border. At least one lawyer, Ronald Henry, thinks submitting names of Canadian drivers who test positive to a US database could open up a can of worms.
“There are humongous privacy issues here. Expect challenges,” he suggests.
According to Dr. Barry Kurtzer, chief medical review officer for DriverCheck: “We did pose the question to FMCSA quite some time ago as to whether or not Clearing House rules would apply to Canada, and whether FMCSA had made provisions for Canadian addresses, bilingualism, and privacy rules. Unfortunately, we never received answers to our questions. We’ll know more about the impact on Canada once the FMCSA officially publishes its Clearing House rule.”
Meanwhile, the US Department of Health and Human Services has recently published two notices of proposed rulemaking, which will affect the DoT drug testing regimen in the very near future. One of the rules will see more drugs added to the “panels,” or categories of intoxicants. The FMCSA currently wants drivers to be screened for five types of narcotics, sometimes referred to as the NIDA 5. These are amphetamines, cocaine, marijuana, opiates and PCP. Prescription painkillers such as oxycodone and hydrocodone will soon be included in the panels. Oxycodone, a synthetic type of opiate popular among the illicit drug-taking fraternity has been added, as have amphetamine variants such as MDA and MDMA (better known as ecstasy).
The second initiative concerns the addition of oral fluid collection to the drug-testing menu. Up until now, urine analysis was the only accepted methodology for DoT random, pre-employment, reasonable cause and post-incident testing. But this new rule will allow for oral (saliva) testing as well. When the rule is published, employers could use either saliva or urine collection, or both. The saliva test is considered a better procedure for determining the “probability” of impairment. It can show the presence of a drug or a drug’s metabolite in the subject’s system for several hours after ingestion and depending on the amount of that substance, could inductively indicate whether or not the driver was “probably” impaired when reporting for work.
But hair follicle testing is gaining in popularity, particularly in the US where workplace drug testing is widespread. Strands of hair, an inch-and-a-half long, can provide the lab with a snapshot of drug use over a 90-day period. For that reason, some employers prefer this process for pre-employment testing, as it can provide a wider spectrum of the driver’s drug-using lifestyle and potentially risky behaviour.
Some hair follicle testing is being done in Canada, usually in pre-employment situations for truck and bus drivers, but the procedure is expensive and decried by civil libertarians. However, American Trucking Associations (ATA) president and CEO Bill Graves is a major proponent of the procedure and has been lobbying US legislators to have it included as part of DoT testing.
Hair testing is now undergoing its own detailed review by the US Department of Health and Human Services (HHS). But the HHS’s proposed oral fluid protocols are currently much further along the development curve.
“We believe that oral fluid testing will be cleared for use in DoT programs sometime in 2016,” says Kurtzer.
Police and regulating authorities both in Canada and the US are concerned with people driving while “high,” particularly under the influence of THC (the psychoactive ingredient in marijuana). Recreational marijuana use is now permitted in some states and the number of medical marijuana users in Canada is expected to increase dramatically in the coming years.
While some 50,000 drunk driving charges are laid in Canada each year, only about 1,000 drug impaired charges are tallied. What is lacking is legislation and technology. There is presently no roadside test for drivers to determine the presence of drugs. The best way to determine drug impairment would be by administering a roadside blood test, but this is not practical.
Oral fluid collection seems to be the way forward at this time, either by means of a breath sample or a swab of saliva, and medical instrument suppliers are scrambling to fill that niche. Cannabix Technologies of Vancouver, B.C., founded by a retired RCMP officer, is developing a handheld breathalyzer-type device that captures mucus particles from the lungs and uses a newly developed type of spectroscopy to determine if there are cannabinoids present. At the same time, a national forensics panel is currently evaluating three such devices.
Canadian regulators will also probably be looking to places like Australia, where various jurisdictions have been using roadside saliva test kits for years. Closer to home, states like Washington, Colorado and Montana have set an impairment limit of five nanograms of THC per microlitre of blood.
Most likely Canadian authorities will go with the five nanogram plasma baseline for THC, which is also consistent with the 2015 task force guidance of the American College of Occupational and Environmental Medicine.
The US DoT has banned the use of medical marijuana by commercial drivers, so a Canadian driver taking prescribed medical cannabis products may not drive on US roadways. But what if the trucker works domestically? Assuming your workplace has an iron-clad drug testing policy in effect and no one’s rights or privacy have been violated, how can you determine if a THC user is unfit for work?
Unlike the universal baseline for alcohol impairment – .08 blood alcohol content (BAC) for motorists, .04 BAC for commercial truck drivers – measuring impairment while under the influence of THC is difficult. But Dr. Kurtzer cites one specific type of workplace oral fluid drug testing model that should stand up to scrutiny: “Where a screening test was positive at or above 1 ng/ml for oral fluid THC, and the subsequent confirmation test was positive at or above 10 ng/ml, then it was interpreted that the specimen donor ‘likely’ used marijuana within four hours prior to the test. And if that time window coincided with the work shift, then it was ‘likely’ that the worker was impaired on the job.”
A positive test result is a major concern to both the driver and the carrier. In some cases, termination can be the end result, but it doesn’t have to be so. In Canada, drug dependence is considered a disability, and if a driver fails a test and admits to having a substance abuse problem, he or she has to be accommodated. This is done through a Substance Abuse Professional (SAP) who recommends a course of treatment. Subsequent return-to-work and follow up testing will probably be required.
“US DoT drug testing was never designed to measure impairment, but to recognize risky behaviour and create a safe workplace,” adds Kurtzer. “As long as illicit drugs are being abused, the worry is that they will end up in the workplace. It’s not a witch hunt. Termination doesn’t have to be the final result. We certainly see many, many happy outcomes.”