Assistant to the President
Transport Workers Union, Local 100
80 West End Ave.
New York, NY 10023
Oct. 30, 1999
Dear Mr. Cassano,
In regard to our recent telephone conversation: It would seem as though there is a misunderstanding on the part of the Union as to what DOT (Federal Transit Administration) regulations require insofar as "rehabilitation" for employees who have "positive" results on random drug/alcohol tests. I would like to clarify the FTA regulations, which I believe the Transit Authority is not implementing as intended, and while my quotes below are specific to alcohol misuse, there are similar regulations and requirements pertaining to drug use.
FTA alcohol misuse regulations (49 CFR part 654)
Subpart B -- Prohibitions
This section sets the alcohol concentration prohibited by the rule at 0.04. A covered employee may not perform a safety-sensitive function when his/her alcohol concentration level is at 0.04 or greater.
Subpart E -- Consequences for Employees Engaging in [Prohibited] Alcohol-related Conduct
Once an employee has committed a violation of Subpart B, he/she must not only be removed from his safety-sensitive position, but must also be told of the resources available to him to evaluate and resolve problems associated with alcohol misuse. He must then be evaluated by a Substance Abuse Professional.
Referral, Evaluation, and Treatment (654.75)
This section concerns those employees who have violated a provision in Subpart B. This section requires the employer to advise such an employee of... names, addresses, and telephone numbers of substance abuse professionals and counseling and treatment programs.
Such an employee must be evaluated by a substance abuse professional to determine whether the employee needs help in resolving problems associated with alcohol misuse. Any employee who has violated Subpart B must take a retun to duty test before he/she may be allowed to perform a safety-sensitive function, with a result showing an alcohol concentration of less than 0.02.
IF, however, the SAP determines that the employee needs help in resolving problems with alcohol misuse, the employee must follow the course of treatment prescribed by the SAP. To return to duty, the employee must be evaluated by a Substance Abuse Professional again to determine whether the employee has properly followed the treatment course originally prescribed, and is able to return to work.
It should be evident from this that Federal regulations distinctly allow for the possibility that a person can violate the alcohol rules without necessarily being "alcoholic" or requiring "rehabilitation", and the regulations allow an employee who does not require "help" to return to work the very next day, following a re-test showing a level below 0.02. In the FTA instruction pamphlet for Substance Abuse Professionals, there are specific instructions for what to fill out if the "positive" employee, after an evaluation, is determined to not require treatment (i.e. to have simply violated the rules as a one-time thing, rather than having an "uncontrollable addiction").
In fact, FTA regulations require a professional evaluation of employees who have a "positive", and it is the responsibility of individual company management and unions to ensure that the evaluations are not only performed, but are done competently, and by ethical people.
This is not happening in NYCT. Appendix E-2 and E-1 (unchanged for at least 10 years) requires ALL "positive" employees to undergo "rehabilitation" WITHOUT any evaluation, and apparently nobody has investigated what this "rehabilitation" consists of. It is a one-size-fits-all program, and since the contract puts no time limit on it, the EAP has made it longer and longer, so that it currently lasts 9 months FOR EVERYONE. This "rehabilitation" is geared toward serious, hard-core alcoholics and drug addicts, and indeed all employees are ordered to "admit" that they suffer from these conditions from the very first day, although most do not have the symptoms that would cause a doctor or psychologist to make such a diagnosis.
As I'm sure the Union is aware, there have even been several brothers and sisters placed into the EAP program who never had a "positive" test under any definition -- the most frequent reason being that they were unable to produce the required amount of urine in the allotted time. They are then labeled as having "refused" to take the random, and required by the present contract to enroll in EAP, where they are immediately ordered to participate in "recovery" groups for their non-existent "addiction".
Forcing someone to undergo treatment for an addiction disorder they do not have is unethical, psychologically harmful, and (as I have been advised by doctors and attorneys) a requirement that can and should result in fraud and malpractice charges. A contract that allows and even requires fraud and medical malpractice to take place is, in my opinion, an illegal contract, and I would like to know what the Union intends to do to rectify this situation.
These abuses could be easily prevented by requiring a realistic, professionally-recognized evaluation of any employee suspected (for whatever reason, including a "positive" test) of having a clinical drug or alcohol disorder. Some examples of professionally accepted preliminary evaluation tests for alcoholism include the Alcohol Use Disorders Identification Test (AUDIT) and the Michigan Alcoholism Screening Test (MAST). A competent evaluation would include a test of this type, as well as an examination of the employee's medical, operating, and attendance records, and any legal problems such as DWI or domestic violence. If there is no realistic sign of a clinical alcohol or drug addiction disorder, the "positive" employee could be given a reasonable disciplinary penalty, but should NOT be required to undergo "addiction treatment" for ANY amount of time. There are many first-time "positive" employees who, like myself, are in perfect health, have excellent attendance and operating records, and who would never have scores indicative of an alcohol (or drug) disorder on a MAST, AUDIT, or similar questionnaire. It is bizarre to suggest that such employees are in need of "rehabilitation" and "recovery from addiction"* in order to be able to safely and competently perform their duties, and I would like to know what the Union intends to do to prevent such abuses of its members.
* Note "Recovery" is thought by many people to entail long-term attendance at "12-step" groups such as AA or NA. Several Federal court rulings in this district (e.g. Griffin v. Coughlin, Warner v. Orange County Probation Dept.) have held that since "12-step" philosophy and literature are "unequivocally religious", state agencies cannot require any citizen to attend these types of meetings or programs. While individual employees can sue (and will win) if they are made to attend AA by the EAP, it would be best if the Union would put a "no 12-step meetings required" reference in the contract, as part of a definition of "compliance with EAP".
I am enclosing a copy of an AUDIT questionnaire, and also an excerpt from the FTA pamphlet for "Substance Abuse Professionals" to which I referred earlier, which instructs them on what to fill out if they evaluate an employee according to § 654.75 and conclude that no treatment is necessary.
I would also like to draw attention to the issue of follow-up testing for employees who have had a previous "positive" result.
The present CBA requires unannounced testing for a period of one year after a return to work. The FTA regulations require "at least six tests in a period of a year" at which point recheck testing can be discontinued, but allow recheck testing to be extended to up to 5 years, if the EAP does a follow-up evaluation and decides an extension is necessary for clinical reasons. Following is the pertinent section of 49 CFR part 654.75:
... Such an employee must not only take a return to duty test but she must also submit to followup testing, which occurs unpredictably and unannounced for up to sixty months following her return to duty... The employee must take at least six followup alcohol tests (all indicating an alcohol level less than 0.02) during the first 12 months following her return to duty. After that period of time, the SAP determines whether the employee should continue to be subject to followup testing for the additional 48 months and if so shall determine how many tests the employee should take and how often they should be administered.
I would like to point out to the Union that the EAP is not doing followup evaluations any more than they are doing initial evaluations, and are using the "up to 60 months" clause as a way of harrassing certain employees, by subjecting them to frequent and repeated recheck testing in the absence of any sign of drug/alcohol problems. (I have been tested about 140 times in the last 2 years, all 100% negative, and despite a perfect attendance and operating record, I am currently being tested approximately every 10 days to 2 weeks.) The Union should demand that an explanation be given for any extension of the mandated recheck testing beyond the one-year requirement, and should be willing to intervene on behalf of employees who feel the "up to 60 months" phrase is being twisted out of context and used to harrass them via frequent, repeated, expensive, and unnecessary recheck testing, and its humiliating implication that they are "out-of-control addicts" who need to be tested this often. The fact that a new CBA is being negotiated would seem to me an excellent opportunity to address these concerns.
Finally, I would like to remind the Union that as per FTA regulations (49 CFR § 654.71) Union and Management are jointly responsible for providing EVERY safety-sensitive employee with copies of both FTA regulations and individual employer (that is, NYCT) drug and alcohol policies, including (but not limited to) specific information about what alcohol level is prohibited; the procedures that will be used to test for the presence of alcohol, protect the employee and the integrity of the breath testing process, and safeguard the validity of test results; and the procedures that will be used under § 654.75 (referral, evaluation, and treatment).
This section has obviously been violated. To my knowledge, NO employee has been given a copy of FTA regulations, and most Union officers and shop stewards seem to be unaware of them. The contract itself (Appendix E-2) is far too vague about what the actual consequences are for having a "positive" result, i.e. what is required by the EAP, for how long, and what is meant by "non-compliant", and as pointed out earlier, the contract does NOT require any kind of diagnostic evaluation, contrary to FTA rules. In addition, there has been an apparent dispute and misunderstanding regarding the use of blood alcohol testing (considered far more accurate than breath testing, BTW) and there was a "Stipulation and Agreement" signed by Union and Management in April 1997, purportedly written to clarify what appeared to be a conflict between Appendix E-2 and FTA regulations on what alcohol level is considered "positive", but which instead created (unnecessary) confusion about whether blood test results (Appendix E-2, Sections 5.3 and 10.6) are "allowed" as evidence of innocence, although blood testing continues to be done. This "Stipulation" was not only ambiguously worded, but was NEVER given to employees. Yet this secret "Stipulation" is being used by management to label employees "positive" who in fact had negative blood tests, and these employees are forced into "addiction treatment". This is not only a flagrant violation of the contract, but if employees remain uninformed of the actual policies (and secret Union/management policy adjustments are made and re-interpreted) the FTA regulations are being violated. What does the Union intend to do about this?
I would appreciate a clarification of what the Union's position is on proper and ethical implementation of FTA regulations, and I would like to know what the Union intends to do about employees abused by management's deliberate misuse of these FTA regulations.
cc: Willie James