Marine Employer Responsibilities.
by Harvey Colvin, Ph.D.
One of the first cases to involve the new Coast Guard regulations on alcohol testing is the EXXON VALDEZ grounding which occurred on 24 March 1989. Numerous other casualties have occurred since then in which testing has been required under these new rules. What are they and how will the industry implement them is the subject of the following article by Dr. Harvey Colvin, one of MEC's Associates who was previously involved in testing programs and now is available to assist management implement the new Coast Guard program.
The potential legal problems which might arise because of an improperly administered program are not addressed here, but the news media is reporting that Captain Hazelwood's attorney is already contesting the validity of his test.
One area which may cause the most problems is the "reasonable cause" required test.
Final rules for chemical drug and alcohol testing of commercial vessel personnel were published in the November 21, 1988 Federal Register Vol. 53 No. 224. The purpose of these rules is to reduce the potential for marine casualties related to drug and alcohol use, thus enhancing safety in the marine industry.
Specifically, the regulations require employees of marine employers to participate in periodic, pre-employment, random, post-accident, and reasonable cause urine testing programs for five classes of drugs and in post-accident testing programs for alcohol. In addition, the marine employer must provide an employee assistance program for all employees.
Dates for implementing these programs depend upon the number of employees employed by the marine employer and upon the type of urine testing program. For those marine employers having more than 50 employees, pre-employment testing went into effect July 21, 1989, with the other programs having an effective date of December 21, 1989. For employers with 11 to 50 employees, pre-employment, post-accident and reasonable cause testing is effective December 21, 1989, with random testing and reasonable cause programs having an effective date of December 21, 1990. For employers with 10 or fewer employees, all programs must be implemented by December 21,1990. The cost for these programs will be the responsibility of the marine employer.
These costs can be significantly reduced by developing effective program implementation plans. Planning should begin by reviewing in detail the Federal Register of July 8, 1988, Part IX, and of November 21, 1988, Parts II and IV. Technical information on urine testing for drugs may be found in "Urine Testing for Drugs of Abuse", Research Monograph Series 73 by the National Institute on Drug Abuse. With an understanding of the regulations and some technical information about drug and alcohol testing procedures, a drug program implementation plan can be developed that will be cost effective, tailored to the marine employer's specific operations, and meet the requirements of these new regulations. Some marine employers may wish to retain the services of a Drug/Alcohol Program Consultant in developing these plans.
A Drug/Alcohol Program Consultant will be familiar with the technology used in drug testing, will understand the regulatory requirements, and will be able to develope a drug testing program tailored to the marine employer's unique operations. Specifically, he should study the marine employer's operations and develop a plan outline for implementation of the drug testing program. The plan outline should be of sufficient detail to allow for policy and procedure development in the following key areas:
Medical Review Officer Selection Criteria. This person will review and interpret each positive test and report the test finding to the marine employer. The Medical Review Officer also has the responsibility for determining when a person who has had positive drug tests may be re-employed. This person must have a license to practice medicine and must have expertise in drug and alcohol abuse and interpretation of laboratory results. A consultant can assist in this selection by reviewing the experience and qualification of the medical review officer and make recommendations for retention.
Selection Criteria for the Testing Laboratory. Although all testing must be preformed at a laboratory approved by the U.S. Department of Health and Human Services, the marine employer through the actions of the medical review officer and the laboratory director is responsible for the accuracy and correct interpretation of urine test results. Thus, the credentials of the laboratory director, key laboratory personnel and the suitability of the laboratory facilities and equipment should be reviewed before retaining laboratory services.
Urine and Breath Collection Procedures. The plan outline must be of sufficient detail to allow for specific policy and procedure manual development. The procedures for Transportation Work Place Drug Testing Programs found in 49 CFR Part 40 are very specific about how urine specimens are to be collected. The collection site must be secured during specimen collection, have temporary secured storage areas for specimens, and provide for individual privacy. In addition, collection site personnel must take precautions to ensure that specimens are not adulterated or diluted during the collection process. The regulations are not specific about how breath specimens are collected except that such specimens should be collected by trained persons.
Chain of Custody and Shipping Procedures for Urine Specimens. Procedures for chain of custody must be established and maintained from the time of urine collection through the testing of the specimen. If the specimen is not immediately shipped it must be safeguarded during temporary storage. How the specimens will be shipped, by whom, and by what expeditious means must be detailed in specific procedures. The plan outline should contain sufficient detail to prevent omissions when developing and writing these procedures. A consultant will be familiar with chain of custody procedures and can offer advice and assistance on how these procedures should be developed.
Collection Equipment. All inspected vessels certified for restricted overseas routes, are required to have on board a breath testing device. Breath testing equipment chosen for vessels should be easy to use and maintain. Although not specifically mentioned in these regulations, supplies and equipment (alcohol standards and simulators) for ensuring the accuracy of breath test results should also be available. A consultant will be familiar with alcohol testing equipment and procedures and can make recommendations. Urine collection kits will be required for all marine employers operating in remote areas. The intent of this rule to insure that urine specimens can be collected within 24 hours from the time of a serious marine incident. The contents of these kits are specified in the regulations. Suppliers for collection kit supplies should be in the marine employer's drug implementation plan.
Employee Training. The drug program implementation plan outlines should contain detailed training curricula and procedures for training documentation. Training must include the effects of drug and alcohol abuse in the work place, personal health and safety, and the manifestations and behavioral cues that indicate drug or alcohol abuse. Supervisors must receive at least 60 minutes of training. In addition, technical training for those who are responsible for urine collection and breath testing must be included in the plan.
Record Keeping. Requirements for record keeping are found through-out these new rules. Specifically, the rules require that an employer not release individual test results or other personal information from anti-drug program records except to the Coast Guard authority. The implementation plan outline must specify how these records will be maintained for five years and negative test results for one year.
Employee Assistance Program. The implementation plan should address two major areas, education and training. The educational requirement in the rule includes provisions for the display of informational material, and the display of a community service hot-line for crew member assistance. Training requirements have been mentioned previously.
Serious Marine Incident Response. The implementation plan outline must include provisions for a timely response to a serious marine incident. The rule requires that employees be fully indoctrinated in the requirements of the sub-part of the rule that mandates chemical testing following a serious marine incident. Policies and procedures must be developed that allow for testing of those crew who are directly involved in a serious marine incident.
In summary, these rules require the marine employer to establish comprehensive drug testing programs immediately. These programs involve more than the simple procedure of contracting with a testing laboratory to perform a few tests each year. A positive drug test result from an employee's perspective is serious. It will result in the immediate loss of employment and may result in termination of the employee's career in the marine industry. The marine employer must demonstrate due diligence by following the rules, and develope appropriate policies and procedures when establishing these programs. A false positive test result or failure to follow drug/alcohol testing procedures after a serious marine incident could expose the marine employer to considerable legal liability.
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