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Two recent developments in workplace testing may have a significant impact on how occupational health providers offer one of their bread-and-butter services.
In one case, a major employer received harsh criticism for what it considered to be an innovative program to investigate carpal tunnel syndrome. The other development is a change in federal testing procedures that will affect nearly all urine tests for drugs and alcohol.
The carpal tunnel testing controversy began when the U.S. Equal Employment Opportunity Commis-sion (EEOC) filed a petition for a preliminary injunction against Burlington Northern Santa Fe Railway Company (BNSF), based in Forth Worth, TX, to end genetic testing of employees who filed claims for work-related injuries based on carpal tunnel syndrome. The employees were not told of the genetic test or asked to consent to it, says Ida Castro, EEOC chairwoman. At least one individual who refused to provide a blood sample because he suspected it would be used for genetic testing was threatened with imminent discharge if he failed to submit the sample, she says. The company is disputing that charge.
"This is EEOC’s first lawsuit challenging genetic testing," Castro says. "As science and technology advance, we must be vigilant and ensure that these new developments are not used in a manner that violate workers’ rights."
Castro calls the testing "an egregious violation of the Americans with Disabilities Act (ADA)." In its petition, filed in U.S. District Court for the Northern District of Iowa in Sioux City, the EEOC asked the court to order the railroad to end its nationwide policy of requiring employees who submitted claims of work-related carpal tunnel syndrome to provide blood samples for genetic testing. The samples were used for a genetic DNA test for Chromosome 17 deletion, which is claimed to predict some forms of carpal tunnel syndrome. The EEOC also sought to halt any disciplinary action or termination of the employee who refused to submit a blood sample.
In announcing the court action, Paul Steven Miller, EEOC commissioner, explained that the EEOC takes the position that "basing employment decisions on genetic testing violates the ADA. In particular, employers may only require employees to submit to any medical examination if those examinations are job-related and consistent with business necessity. Any test that purports to predict future disabilities, whether or not it is accurate, is unlikely to be relevant to the employee’s present ability to perform his or her job."
According to Chester Bailey, director of the EEOC’s Milwaukee district office, the action was based on six charges of discrimination. Four of the charges were filed by affected individuals; two were filed by union officials of the Brotherhood of Maintenance of the Way Employees on behalf of all affected members, he says. Bailey says the EEOC determined after a preliminary investigation that "the employees would suffer irreparable injury through the invasion of their most intimate privacy rights if the practice of testing is not ended."
The EEOC is the federal agency responsible for enforcing the ADA, which prohibits discrimination against qualified individuals with disabilities, including prohibiting an employer from seeking disability-related information not related to an employee’s ability to perform his or her job.
BNSF initially defended its use of the genetic testing but then announced it would cease the practice entirely among its 40,000-person work force. Company officials called the genetic testing a "pilot program" that was started in March 2000. "Effective today, the team concluded that BNSF will stop including in any employee testing a DNA factor for carpal tunnel syndrome," the company announced soon after the EEOC filed suit.
BNSF reports that about 125 active employees filed claims since March 2000 for carpal tunnel syndrome-related injuries. About 20 BNSF employees completed a medical examination to support their claims. Several employees refused to take the blood test, but none received any disciplinary action.
"The [EEOC] court action had erroneously asserted that the DNA test had been broadly requested of BNSF employees when, in fact, the test had been requested only in response to a limited number of carpal tunnel injury claims," the company said in a release. "Further, the DNA portion of the medical examination was not being used to determine the employee’s present ability to perform his or her job, as reported."
BNSF also agreed to an order to be entered by the Federal District Court in Sioux City in response to the Feb. 9 court action by the EEOC. In the order, BNSF voluntarily agreed to suspend testing that would identify a genetic cause for carpal tunnel syndrome in response to employee claims. BNSF operates one of the largest rail networks in North America, with 33,500 route miles of track covering 28 states and two Canadian provinces.
In another controversial matter involving workplace testing, the federal Department of Transportation (DOT) announced recently that it revised its drug- and alcohol-testing rule, which affects employees of transportation companies who occupy sensitive safety positions. The DOT requirements for validity testing of samples, specifically the cutoff numbers for determining when a sample has been adulterated, have been under fire in recent months.
The rule issued recently amends the department’s regulations, first issued in 1988, that require drug testing of employees in sensitive safety positions in the aviation, motor carrier, rail, transit, maritime, and pipeline industries. Alcohol testing was added to the requirements in 1994. Most of the changes stem from a recent controversy in which the Atlanta-based Delta Air Lines announced it was pulling its testing work from a popular lab because of a dispute with the pilots’ union over the accuracy of validity testing. The lab reported that the pilot’s urine sample had been substituted.
After some debate, the airline gave in and decided to reinstate the pilot and flight attendants, but it pulled its business from the lab because of concerns about the reliability of its testing. In addition, the Delta announcement said the company would require samples thought to be substituted to be sent to an independent lab for confirmation. Federal regulators responded by launching a survey of all DOT-certified laboratories to determine whether they are using the most current procedures and standards for validity testing.
Airlines in the United States have randomly tested flight crews for drug use since 1989. The airlines began using the validity tests in 1998 even though the DOT does not require them.
The DOT changed the testing rule to extend to allegedly adulterated samples — two of the same protections afforded employees who test positive. Previously, improper creatinine levels automatically deemed the sample adulterated. But under the new rule, a medical review officer may void that validity test if there are legitimate reasons for the results. Also, workers will have the right to demand a second sample of the specimen be tested at another laboratory.
These are some of the changes from current requirements:
• To ensure fairness to employees, a medical review officer who is a physician will review the test results when a laboratory indicates that an employee’s specimen may have been adulterated or substituted. Any employee also will be able to obtain, at a different certified laboratory, a test of his or her split specimen — so called because specimens are split into two separate containers to allow for re-testing — to make sure that the original laboratory did not make an error. Because of the potentially significant impact of the employee following an adulterated or substituted specimen result report, the requirements for physician review and access to testing of the split were implemented immediately.
• Validity testing, which is designed to deter and detect attempts to adulterate or substitute specimens, will continue to be voluntary on the part of the employer using current procedures. When the Department of Health and Human Services (HHS), which regulates drug-testing laboratories, finalizes its mandatory procedures for validity testing, the DOT will publish a notice in the Federal Register making validity testing mandatory in the transportation industry.
• Employers may apply to the appropriate DOT operating administration for a waiver allowing them to temporarily remove employees from performing safety-related tasks while the medical review officer is deciding whether there may be a legitimate medical explanation for a positive result from a laboratory. The conditions for obtaining a waiver include an important measure to continue to protect employee confidentiality and to allow an employee to be paid during this period.
• Contract service providers (often called consortia or third-party administrators) will be authorized, to a greater extent than previously, to transmit information such as drug test results to employers.
• There is a new "public interest exclusion" provision in the rule allowing the DOT to protect the public from the actions of service providers — firms that conduct tests under contract to transportation companies — that violate the department’s rules. This provision includes significant due-process protections to ensure that the process is fair.
• Enhanced training requirements for drug and alcohol testing personnel have been added. The measure is designed to refine procedures for collectors and breath alcohol technicians to:
— increase their effectiveness;
— ensure accurate tests;
— ensure that all medical review officers have current technical and regulatory information and training;
— ensure that substance abuse professionals across the country are consistent in their evaluation and assessment of employees who tested positive in the first round of testing for drugs or alcohol.
The majority of the new rule goes into effect Aug. 1, 2001, to give employers and businesses time to learn about its provisions before moving to compliance. A few provisions, such as medical review officer review of suspected adulterated or substituted specimens, the split-specimen review procedures for validity testing, and the public interest exclusions provision were implemented immediately and now are in effect.