July 17, 1999
I am enclosing photocopies of some pertinent pages from the Federal Register concerning U.S. Department of Transportation (Federal Transit Administration) "alcohol misuse" regulations, particularly regarding follow-up testing for employees who had an accurate alcohol reading of above 0.04 (which I did not), and who have supposedly been "evaluated" by a "Substance Abuse Professional" (SAP) and been classified as needing "treatment" (obviously meaning treatment for alcoholism). I am quoting some especially pertinent excerpts below.
"...A SAP will evaluate each covered
employee who violates these rules
to determine whether the employee
needs assistance resolving problems
associated with alcohol misuse and
refer the employee for any necessary
"...The [Omnibus Act] rules require that
each covered employee, who has been
identified by a SAP as needing assis-
tance in resolving problems with
alcohol misuse and who has returned
to duty...shall be subject to a minimum
of 6 unannounced follow-up alcohol tests
administered by the employer over the
following 12 months. The SAP can
direct additional testing during this
period, or for an additional period up
to a maximum of 60 months from the date
the employee returns to duty. The SAP
can terminate the requirement for follow-
up testing in excess of the minimum at
any time, if the SAP determines that
testing is no longer necessary..."
Despite the FTA's (and Ronnie Sue Jaffe's) use of the low-key phrase "identified as needing assistance resolving problems associated with alcohol misuse" they are clearly referring to a diagnosis of "alcoholism" as evidenced by the repeated use of words such as "relapse" and "recovery", not to mention the idea of an arduous and endless "ongoing rehabilitation effort".
"...because studies have shown that
the relapse rate is highest in the
first year of recovery, we mandate
a minimum of 6 alcohol tests during
that time. After that period, however,
we believe that the SAP should deter-
mine when follow-up testing should
"...Follow-up testing serves as more than
an employer's additional assurance that
an employee is performing safety-
sensitive work in an alcohol-free and/
or drug-free manner. It serves the
recovering employee as an adjunct to
the total and on-going rehabilitation
effort. Despite the fact that treatment
can be short-term, the rehabilitation
process for the recovering alcohol and
drug abuser usually requires long-term
effort on the part of the employee...
...This effort can be enhanced...during the
first year (and thereafter) [by] the
employee's required participation in
follow-up testing as well as participation
in aftercare programs and self-help groups.
Therefore, the SAP must present the
employer and the employee a plan for
follow-up testing. The SAP can re-evaluate
the plan at any time and terminate the
plan at any time following...six tests [in]
the first year..."
The extension of my
recheck testing period (which, by the way, was never
discussed with me as directed in the above excerpt), I
believe, would imply to anyone coming into knowledge of
it that I have been professionally determined (a) to be
an "alcoholic", and (b) to not be
making enough of an "ongoing rehabilitation effort"
(i.e. rehabilitation from "the disease of alcoholism")
and therefore (c) to be at ongoing risk of
"relapse" (i.e. relapse into "out-of-control drinking"
which could result any minute in drinking on duty).
This implication is defamatory and very emotionally distressing to me. Also, as I told you previously, ordinary random testing is ordered for all employees in my department, and no one employee need feel singled out or humiliated. On the other hand, the "Mandated Alcohol Recheck Test" is clearly announced as such, resulting in the turning of heads, etc., which definitely singles me out.
The following excerpt is in reference to "reasonable suspicion" testing (a different category from random testing; as the name implies, a supervisor can order any employee to submit to drug/alcohol testing if they "seem likely to be positive" in the supervisor's opinion). I'm confident the implication of "harassment" could apply to extensive and extended follow-up testing as well.
"... A number of commentators expressed
concerns that supervisors might abuse
reasonable suspicion tests to harass
unpopular employees and wanted strict
requirements to prevent this possibili-
ty... We believe that the possibility
that a review of company records would
show whether particular employees were
harassed -- i.e. tested without positive
result too often -- should help deter
Please let me know what kind of action I might be able to take regarding this. If you feel I should consult with another attorney, let me know.