On December 3, 2015, Congress passed H.R. 22, the Fixing America’s Surface Transportation Act (FAST ACT) by overwhelming bipartisan votes of 83 to 16 and 359 to 65 in the Senate and House respectively. The legislation is the first long-term surface transportation reauthorization in a decade and provides funding and policy changes for our nation’s highways, mass transit and rail systems. This landmark legislation includes a number of SMART TD policy priorities, many of which are outlined below.
“I’m very pleased with the legislation overall compared to some of the original proposals. The legislation was modified in both houses and in the conference committee to correct many of the harmful issues facing our membership,” SMART TD President John Previsich said.
“Our National Legislative Director John Risch and his team, working with other unions and allies did a stellar job on a very complex 1300-page piece of legislation that was passed through a very complicated legislative process.
Risch
“In difficult economic and political times, an effective legislative department makes all the difference and we have one of the best in the business.”
“Considering the makeup of the Congress, overall we are pleased with the policy provisions in this legislation, and that the law covers five years of authorization,” said Risch. “However, we are disappointed that much of the funding came from non-user fees. Freight railroads alone fund their own track and infrastructure. Using general funding for highways puts railroads at a competitive disadvantage because trucks are not paying their fair share of costs for highway construction and maintenance.”
Provisions to protect transit members from assault
Section 3022. Improved Public Transportation Safety Measures
This much-needed section will better protect our transit members by requiring the Federal Transit Administration to promulgate regulations to protect public transportation operators from assault.
The rulemaking will be required to consider the safety needs of drivers in different modes, including bus and light rail.
This provision was a direct result of a joint lobbying effort by SMART TD, the AFL-CIO’s Transportation Trades Department (TTD), AFL-CIO, the Transport Workers Union (TWU) and the Amalgamated Transit Union (ATU).
ECP brake mandate is maintained
The legislation largely protects the May 2015 Pipeline and Hazardous Materials Safety Administration (PHMSA) rule that requires the use of electronically controlled pneumatic (ECP) brakes on certain high-hazard flammable trains (HHFTs), which SMART TD strongly supports.
While the legislation does require another study on ECP brakes, it also includes language supported by SMART TD that will ensure testing is done independently and objectively, and not by the railroads or other entities affected by the rule.
Additionally, the legislation neither prohibits DOT from moving forward with the May 2015 rule while the study is in progress, nor does it require DOT to issue a new rule dependent on the study’s findings.
The original Senate Commerce Committee language would have repealed the ECP rule and replaced it with a railroad-dominated study.
Inward-facing cameras cannot be used to retaliate against employees.
Working with Senator Richard Blumenthal (D – Conn.), SMART TD secured a provision stating that any in-cab audio or image recording obtained by a railroad carrier under this section may not be used to retaliate against an employee. Rail Subcommittee Chairman Jeff Denham (R – Calif.) reinforced this provision by specifically mentioning it in a House floor speech.
We are pleased the final bill removed a requirement for efficiency testing.
Removed harmful privatization language for transit projects
Working with TTD and other transit unions (TWU and ATU), SMART TD helped strip a harmful privatization provision from the legislation. The provision would have been an unprecedented giveaway to the private sector by allowing certain public-private partnerships to move to the front of the line for grant awards simply because the project included private money, with no minimum threshold.
This provision – if not changed – could have resulted in lost jobs, lower wages and diminished passenger rail and transit service.
Biased hair testing methods rejected
SMART TD has strongly opposed the unfair and biased use of hair testing for drug tests.
SMART TD strongly opposed previous versions of this legislation that would have allowed companies to immediately begin testing an employee’s hair for drugs.
The final legislation would only allow companies to do so after experts at the Department of Health and Human Services have set guidelines for such testing.
Tank car safety standards
The legislation makes substantial improvements in tank car standards by requiring that all new tank cars are equipped with one-half inch thermal blankets.
All existing DOT-111 tank cars transporting flammable liquids are required to be upgraded to retrofit standards regardless of product shipped.
Alerters
The legislation requires DOT to promulgate a rule requiring working alerters in the controlling locomotive of each commuter and intercity passenger train.
Signal Protection
The legislation requires DOT to initiate a rulemaking for redundant signal protection for Maintenance of Way (MOW) workers.
PTC Grants
The legislation provides $199 million to finance a competitive grant program for PTC implementation on commuter railroads.
Funding: Amtrak and Transit
Transit programs will receive a 9 percent funding increase in Fiscal year 2016 over FY 2015 levels and 2 percent increases each year through 2020.
Amtrak is funded through the appropriations process; however, this legislation increases authorized FY 2016 funding levels for Amtrak by $60 million.
WASHINGTON — Transportation labor leaders — gathered today at the fall Executive Committee meeting of the Transportation Trades Department, AFL-CIO (TTD) — met with key members of Congress to seek solutions to a woefully underfunded transportation system and to boost job creation in what remains a slow recovery that TTD’s leader said is “leaving too many working people behind.”
“The need for long-term investments in our transportation system and infrastructure will not ‘just go away,’” said Edward Wytkind, president of TTD, who added that the dialogue with congressional guests “focused like a laser” on ending the stalemate on crucial investment bills. “With the recent progress on a surface transportation bill and strong bipartisan display of support for the U.S. Merchant Marine, we may be witnessing a brief but important timeout from senseless partisanship.”
TTD hosted roundtable discussions with Rep. Peter DeFazio (D-OR), the ranking Democrat on the Transportation and Infrastructure Committee, Senator Bill Nelson (D-FL), the ranking Democrat on the Senate Commerce Committee, and Rep. Mario Diaz-Balart (R-FL), chairman of the Transportation, Housing and Urban Development Appropriations Subcommittee.
“As Chairman of the Transportation Appropriations Subcommittee, I value input from my friends in the transportation labor community who bring a critically needed front-line employee perspective to our work,” Diaz-Balart said. “By seeking the views of both labor and business, community leaders and other important partners, we can develop real, long-term solutions to our nation’s transportation infrastructure challenges.”
“We need to increase investments in our infrastructure and focus on the areas that will truly help create jobs and support our economy,” Nelson said. “We also need to protect the men and women who are out there every day making our transportation systems work.”
“Transportation infrastructure is at the heart of the U.S. economy. Our economic competitiveness, our businesses and millions of American jobs depend on robust investments in our crumbling network of roads, bridges, highways and transit systems,” DeFazio said. “We must continue to push for legislation that will modernize our nation’s transportation infrastructure, create good jobs and enhance the rights and working conditions of the men and women who keep America moving. I thank TTD for joining in that effort.”
The Executive Committee also held a discussion about plans for member education in the 2016 presidential election.
TTD, which represents some 2 million workers in every sector of transportation, has been working with its affiliates on a flurry of key issues. Just today TTD and its maritime and aviation affiliates sent a letter to President Obama urging his Administration to keep maritime and aviation out of any TTIP negotiations. TTD has aggressively countered the trucking lobby’s agenda to bring “unscientific” hair specimen drug testing to front line bus and truck drivers. And TTD coordinated efforts with its member unions to advance a surface transportation bill out of committee last week that awaits House floor consideration.
“When you’re talking about transportation jobs, you’re talking about middle-class jobs — the types of jobs that elude too many Americans,” Wytkind added. “The policies that affect our sector have a real impact on working families, and that’s something Congress can’t forget despite working in the Washington bubble.”
WASHINGTON — In a letter to the leadership of the Transportation and Infrastructure Committee, the Transportation Trades Department, AFL-CIO (TTD), together with member unions and coalition partners, is urging lawmakers to follow established protocol for developing federal drug testing procedures and exclude provisions for hair specimen testing from any House surface transportation bill.
Historically, experts at the Department of Health and Human Services (HHS) have determined how and when new drug testing procedures should be administered. Those guidelines are then used by the Department of Transportation (DOT) to create federal drug testing standards for bus and truck drivers, and other transportation employees.
HHS has not determined whether hair is a valid and reliable specimen for use in federal drug tests and has not issued technical guidelines permitting its use. Despite this, a provision in the Senate’s version of the surface transportation bill would circumvent HHS and allow bus and truck companies to use hair samples to comply with DOT drug testing.
“The Senate has undermined the expertise of scientists and potentially jeopardized the jobs of thousands of bus and truck drivers with this unproven testing method,” said TTD President Edward Wytkind. “We urge the House to reject the Senate’s hair testing provision and ensure that federal drug tests are backed by scientific and forensically sound evidence. Nothing less should be acceptable.”
Studies show that hair testing may have an inherent racial bias. Darker and more porous hair retains some drugs at greater rates than lighter hair. Hair specimen can also cause individuals to test positive for drugs they never ingested, as drugs from the environment can absorb into hair and cause positive results.
“The science behind hair testing is questionable and the drug test results it produces may be discriminatory and could produce false positives,” Wytkind warned.
The following organizations joined TTD on the letter:
American Civil Liberties Union Association of Flight Attendants-CWA Air Line Pilots Association American Medical Review Officers, LLC American Train Dispatchers Association Amalgamated Transit Union Brotherhood of Railroad Signalmen International Association of Machinists and Aerospace Workers International Brotherhood of Teamsters Jewish Alliance for Law and Social Action Lawyers’ Committee for Civil Rights and Economic Justice National Air Traffic Controllers Association National Workrights Institute Sheet Metal, Air, Rail and Transportation Workers-Transportation Division Sailors’ Union of the Pacific Transport Workers Union of America United Steelworkers
In a letter to the Department of Health dated July 29, 2015, President Edward Wytkind of the Transportation Trades Department (TTD) of the AFL-CIO supported the gold standard in drug testing but opposed unsubstantiated hair specimen testing. Read the letter below.
On behalf of the Transportation Trades Department, AFL-CIO (TTD), I write to comment on the Substance Abuse and Mental Health Services Administration (SAMHSA) Request for Information Regarding the Use of the Hair Specimen for Drug Testing. By way of background, TTD consists of 32 affiliate unions that represent workers in all modes of transportation including those who would be directly impacted by any changes made to the current Mandatory Guidelines for Federal Workplace Drug Testing Programs. We therefore have a vested interest in this notice. In addition to the comments that follow, we endorse those submitted independently by TTD affiliates, the Air Line Pilots Association (ALPA), International Association of Sheet Metal, Air, Rail and Transportation Workers-Transportation Division (SMART TD), and the Transport Workers Union of America (TWU).
We reconfirm transportation labor’s commitment to ensuring the highest level of safety across our transportation system. We recognize that an important component of that standard is maintaining a drug-free workforce, and the workers represented by TTD affiliates are dedicated to upholding that principle. TTD unions also share in this commitment by operating effective programs on drug and alcohol education, prevention, and elimination.
As SAMHSA is aware, the Omnibus Transportation Employee Testing Act of 1991 requires the Department of Transportation (DOT) to adopt HHS’s Mandatory Guidelines for Federal Workplace Drug Testing Programs as the foundation of its policies for testing transportation workers for drugs and alcohol. Thus, any changes to HHS’s scientific and technical guidelines will necessarily change DOT drug and alcohol testing policies as well.
SAMHSA’s notice under consideration is a Request for Information regarding a variety of issues related to the use of hair specimen for drug testing. While it is not a proposal to permit hair specimen testing, the notice indicates that the Drug Testing Advisory Board (DTAB) is considering the scientific supportability of amending the Mandatory Guidelines to allow entities to test hair specimen for drug use.
Given that more than six million transportation workers are subject to DOT drug testing requirements, SAMHSA must ensure that any changes to the longstanding federal testing standards are backed by objective, scientifically and forensically sound evidence that prove a new testing method can be applied in an even and fair manner. However, the current state of hair testing cannot meet this requirement, and we respectfully request that SAMHSA not propose hair as an alternative specimen for federal drug tests.
SAMHSA’s Past Concerns for Hair Testing Remain
In 2004, SAMHSA proposed revisions to its Mandatory Guidelines to establish hair as an alternative specimen in drug tests.[1][2] In the preamble of that notice, the agency identified external contamination and hair color as concerns particular to hair specimen testing. Four years later, the agency rescinded its proposal, writing that, “with regard to the use of alternative specimens including hair…significant issues have been raised by Federal agencies during the review process which require further examination, and may require additional study and analysis.”[3] Those same concerns SAMHSA expressed in 2004 remain today.
External Contamination
As noted above, the Omnibus Transportation Employee Testing Act of 1991 requires DOT to test transportation workers for the illegal use of drugs. Restricting workers’ exposure to drugs or proximity to those who illegally use drugs is not contemplated under the statute. As such, SAMHSA must ensure that an alternative specimen and the standards by which to test the specimen can reliably and conclusively prove the donor ingested the drug and was not merely exposed to it. In the case of hair specimen, however, this is not possible.
Exposure to drugs in the environment can contaminate hair, potentially causing the specimen to test positive even in the absence of drug ingestion. In 2004, SAMHSA stated that washing procedures may remove some contaminates, but that testing for a metabolite indicative of only ingestion would differentiate contamination from actual use.[4]
To date, experts have not identified a biomarker indicating ingestion of cocaine or marijuana. Without such a substance to test for, workers are forced to put their faith in labs’ washing methods to remove external contaminates. The theory holds that these procedures eliminate contaminates and what remains after completion of the wash is the presence of ingested drugs.
However, it is widely held that wash procedures are not capable of removing all contaminates from the specimen. The residue left behind is particularly troubling in hair testing because the concentration at which labs test for drugs in hair is extremely small – at the nanogram and pictogram levels. Thus, even the slightest remains of passive contamination could cause a worker to test positive for a drug she or he never ingested. As additional states legalize the recreational use of marijuana, this concern will continue to grow.
If an individual may be barred from gaining employment or fired from her/his job solely on the basis of a positive drug test, SAMHSA must have complete confidence in the accuracy and reliability of that test result. The possibility of passive contamination of hair specimen does not allow for such confidence.
Hair Color, Treatments, and Disparate Impact
Natural qualities and treatment of hair can also affect how hair specimen test for drugs. For instance, melanin is a known receptor for certain drugs. Some evidence shows that individuals with darker hair retain some drugs at greater levels than those with lighter hair. Also, cosmetic treatments such as dying or straightening can damage hair and increase the absorption of drugs. Similarly, curly hair may be prone to damage and thus more susceptible to drug bonding.
In light of this evidence, some have raised concerns for whether hair testing inherently has a racial bias. While SAMHSA dismissed this concern in 2004, we highlight an ongoing case alleging a hair testing program caused disparate on the basis of race.
Ten African Americans brought a case before the United States Court of Appeals for the First Circuit against the Boston Police Department’s (BPD) drug testing program. The plaintiffs claimed “that the department’s program, which used hair samples to test for illegal drug use, caused a disparate impact on the basis of race in violation of Title VII of the Civil Rights Act of 1964.”[5]
As part of their case, the plaintiffs presented eight years of BPD drug program test results demonstrating a statistical significance in the difference in rates at which African Americans tested positive for cocaine compared to their Caucasian counterparts. In May 2014, the Court found that the “difference in outcomes…were not random” and that, “we can almost be certain that the difference in outcomes associated with race over that [eight year] period cannot be attributed to chance alone.”[6] The Court held that the plaintiffs proved “beyond reasonable dispute a prima facie case of disparate impact under Title VII” of the Civil Rights Act of 1964.[7] In doing so, the Court reversed and remanded the US District Court for the District Massachusetts summary judgement to the defendants.
While the case is now back at the District Court, the May 2014 decision must not be taken lightly. The possibility that a drug testing program can discriminate is deeply troubling. Discrimination has no place in federal regulation, and we must insist that new federal testing standards can be applied evenly to all participants.
Lack of Standardization
Today, virtually no standardization exists among hair testing programs. SAMHSA examines this issue in the notice, requesting feedback on whether federal standards should be set for various aspects of hair tests. As SAMHSA considers the lack of standards for hair testing, we refer the agency to the highly standardized procedures contained in the Mandatory Guidelines on urine specimen testing.
For decades, HHS has required employers to test workers for the illicit use of drugs by testing employee urine. The HHS Mandatory Guidelines provide comprehensive and standardized procedures for the complete process of urine testing. These requirements include that urine specimen collectors and Medical Review Officers receive initial and recurrent training on urine testing standards; specify exact procedures for capturing, labeling, and shipping specimens; and specify testing requirements and procedures labs must follow. These standards help ensure professionalism and consistency in the collection of specimens and helps reduce discrepancy and error in the treatment of specimen.
While labs performing hair testing conceal much of their information under proprietary protection, publicly available information shows vast inconsistencies in hair testing today. Labs collect different amounts of hair and from different locations, they boast superiority of their version of external contamination wash procedures and analysis of the wash solution, they use various methods to analyze hair specimen, and they even use different cutoff levels at which a test result is considered positive or negative. There is no standardized training requirement for collectors, and labs and their procedures are not held to the high standard of the National Laboratory Certification Program.
We understand that SAMHSA could set these parameters if it proposed hair specimen testing. We also recognize that labs performing these tests will likely provide the agency with a wealth of information about their procedures. But we urge the agency to critically examine that feedback. Just late last year, the Massachusetts Superior Court[8] upheld a 2013 ruling by the Commonwealth of Massachusetts Civil Service Commission that “the present state of hair testing…does not meet the standard of reliability necessary to be routinely used as the sole grounds to terminate a tenured public employee under just cause standards…” (emphasis in original).[9] The Commission’s decision provides detailed concerns for a variety of aspects of hair testing, including problems with external contamination and the processes and cutoff levels used by the lab performing the employees’ hair tests.[10]
We continue to believe that a drug-free, safe workforce can be achieved while simultaneously protecting the rights and dignities of individual workers. The longstanding HHS drug testing standards have proven effective at maintaining a high level of safety while helping to protect workers from flawed testing techniques, human error, and other issues capable of impacting a drug test result. As adopted by the Department of Transportation, today’s urine testing standards also provide workers with appropriate and necessary due process rights.
The decades-old standards are effective and should continue to be held as the gold standard. Hair testing is not mature enough to be a trusted measure of illicit drug use, and it should be rejected.
We appreciate the opportunity to comment on this notice, and we respectfully request our comments receive due consideration.
Sincerely,
Edward Wytkind
President
[1] Substance Abuse and Mental Health Services Administration, Department of Health and Human Services, Proposed Revisions to Mandatory Guidelines for Federal Workplace Drug Testing Programs. April 13, 2004, 69 FR 71, 19673-19732.
[2] In addition to hair specimen, SAMHSA’s 2004 notice also proposed to make oral fluid and sweat alternative specimens for drug testing.
[3] Substance Abuse and Mental Health Services Administration, Department of Health and Human Services, Mandatory Guidelines for Federal Workplace Drug Testing Programs, Revised Guidelines. November 25, 2008, 73 FR 228, page 71858.
[4] Substance Abuse and Mental Health Services Administration, Department of Health and Human Services, Proposed Revisions to Mandatory Guidelines for Federal Workplace Drug Testing Programs. April 13, 2004, 69 FR 71 19673-19732, page 19675.
[5] Ronnie Jones, et al. v. City of Boston, et al. No 12-2280 (1st Cir. 2014), page 3.
[6] Id. at 11.
[7] Id. at 47.
[8] Boston Police Department v. Commonwealth of Massachusetts Civil Service Commission, Suffolk Superior Ct. No. 13-1250-A
[9] In Re Boston Police Department Drug Testing Appeals (“D” Cases), Commonwealth of Massachusetts Civil Service Commission, page 107.
[10] Id. The 2013 case was brought before the Commonwealth of Massachusetts Civil Service Commission by ten Boston police officers who were terminated by the Boston Police Department after they tested positive for cocaine on hair tests. The officers denied use of cocaine and challenged their terminations on the basis that the science of hair testing is not sound and “the process used to collect and test their samples were seriously flawed, making the test results insufficient to prove ‘just cause’ for their termination.” The Commission reinstated six of the officers with back pay.
WASHINGTON — Transportation labor leaders — gathered today at the fall Executive Committee meeting of the Transportation Trades Department, AFL-CIO (TTD) — met with key members of Congress to seek solutions to a woefully underfunded transportation system and to boost job creation in what remains a slow recovery that TTD’s leader said is “leaving too many working people behind.”