AFA-CWA Wins DOT Ruling on False Drug Test Results

In concluding a four-year AFA-CWA initiative, the Department of Transportation (DOT) has issued an historic ruling that allows employees to remedy false drug test results. The ruling will give employees labeled 'drug test cheaters' the opportunity to clear their names and records. The fix is time limited and places no obligation on the employer to either notify past employees or take them back. However, the AFA-CWA International EAP department is prepared to assist members in repairing their drug testing records for future employment and in securing the necessary documentation to challenge a prior termination. 

A Brief Drug Testing History

In the 1990s, the DOT believed that aviation workers were somehow altering or diluting their samples due to what they described as abnormally low positive drug test results. As a result, the DOT established a pre-screening process or 'validity testing'. To gauge the validity of a drug test, laboratories began measuring levels of creatinine present in urine samples to determine if they had been diluted or altered. Creatinine is a naturally occurring waste product created by the normal breakdown of muscle mass during activity which clears the body through urination. If the creatinine present in a sample fell below a certain level, an employer could categorize the test as a 'refusal to test' which, in most cases, resulted in termination.

AFA-CWA provided irrefutable proof that the creatinine standard in use was inaccurate, unreliable and caused the unjust termination of several innocent AFA-CWA members. AFA-CWA proved that some individuals are physically unable to produce samples that comply with DOT creatinine standards and those known flight attendants were returned to work. 

In May 2003, AFA-CWA successfully convinced the DOT to lower the creatinine standard in the 'substituted' specimens from 5 mg/dL to 2 mg/dL. This adjustment would minimize future testing injustices, however, a remedy for those who may have been wrongfully terminated between September 1998 through May 2003, when higher creatinine testing levels were in place, had not been addressed. AFA-CWA requested that DOT provide a retroactive remedy and send such notice to employers.

"Seeking retroactive remedy was a daunting task because the DOT has never issued a 'look-back' remedy solution following their finding of inaccurate testing benchmarks," said International EAP Director Heather Healy. "We argued with the DOT that any and all employees who may have suffered adverse action from the higher pre- May 2003 creatinine testing levels had a right to prove their innocence. Righting this injustice became a priority for AFA-CWA."

On September 11, 2007, the remedy was released and published as a "Notice to Employers and Employees Covered by DOT Drug and Alcohol Testing Regulations." The notice provides DOT safety-sensitive employees with an opportunity to have DOT reconsider their September 1998 through May 2003 substituted drug test results which were ultimately reported as 'refusals to test'. 

Summary of the DOT Notice

DOT will reconsider an employee's substituted test result if she/he can provide the necessary medical documentation to the DOT no later than March 11, 2008. The documentation must prove that the individual can naturally produce a urine specimen with creatinine concentrations in the 2-5 mg/dl range paired with a specific gravity of less than or equal to 1.001 or greater than or equal to 1.020.

If the DOT determines that the original results should not be considered substituted, it will provide written documentation to that effect. The DOT will direct the testing employer to attach the documentation to the original substituted result as proof that the test should not be considered as substituted nor should it be reported to requesting employers as a substituted test.

The notice states that an employer may review past drug testing records to identify and notify impacted employment candidates and employees of this reconsideration but they are not required to do so.

DOT recommends that employers take this notice into consideration when evaluating whether to hire or transfer someone with a past reported substitution test result into a safety-sensitive position.

Recommended AFA-CWA Action

• Immediately request that employers identify and notify any and all flight attendants who had a substituted/refusal-to-test result between September 1998 and May 2003. This is a time-limited opportunity.
• Request that employers provide the union with the names of impacted flight attendants so the union can follow up with their own notification to them. The AFA-CWA EAP Department is available to assist in notifying and guiding flight attendants through the reconsideration process.
• Separately identify impacted flight attendant through union mechanisms/databases.   Forward their names and any last known contact information to the AFA-CWA EAP Department for follow-up notification and guidance. 
• Distribute the attached notice of reconsideration to other DOT safety sensitive workgroups at your carrier.