|
Department
of Transportation/FHWA Department of Transportation (DOT) and The Federal Highway Administration
(FHWA) regulations call for Pre-employment testing. A driver must have
a negative drug test result before they can be DOT qualified.
In the very first enforcement penalty assessed by DOT in the area of
drug testing, a motor carrier in Idaho was fined $15,000. The fine was
for allowing a driver to drive without first having a negative drug test
result and allowing a driver to drive with a positive drug test result.
The driver submitted a specimen for a pre-employment drug test and was
dispatched. When the result came in, it was positive. Before the driver
could be relieved from duty he was involved in a DOT reportable accident.
The investigation of this accident resulted in the fine. Private lawsuits
surrounding this accident are still pending.
A pre-employment test is different from all other DOT drug tests. This
test is not conducted on an employee. All employees are subject to employment
conditions as defined by company policies. An applicant is not an employee
and therefore, is not subject to your company policies.
The only way an applicant can be tested is to have their permission.
You must also obtain permission to receive their result. The only acceptable
way to do this is to have permission in writing from the tested individual
prior to the test. This document is commonly called a Pre-employment consent
form.
A Pre-employment consent form should include permission to test the
individual and permission to receive their result from the Medical Review
Officer. In addition, you may wish to consider including the text of your
company's policy regarding applicants who have a positive drug test result.
Applicants should be allowed to review the pre-employment consent form
and ask questions regarding the testing procedures and requirements. Any
questions that arise should be answered before a test is conducted. This
is to assure that the individual is granting what is known as "willing
permission".
A Pre-employment consent form must be signed or an employer may be positioned
for accusations of right to privacy violations.
The issue of random drug testing procedures has caused a good deal of
confusion. Employers want to know how to do a true random test when an
employee is on the road and away from company offices and collection sites
for extended periods of time.
DOT-FHWA says, if a group is selected for random testing, the tests
must be conducted before the next random group is selected. What makes
the test truly random is the fact that the employee does not know they
have been selected until they are required to submit a specimen.
For example, an employer chooses to make random selections monthly.
At the beginning of the month an appropriate number of selections are made.
The number of selections made should include "back-up" selections in case
a selected employee quits before submitting or is otherwise legitimately
unavailable.
As few people as possible should know who has been selected. At any
time during the month when a selected employee arrives at a company location
they can be told that they must submit for a random drug test. Once the
employee is notified, DOT says they have "a reasonable time" to submit.
This has been interpreted by Dr. Donna Smith of USDOT as two to four hours.
There are allowances for extenuating circumstances.
Suppose there is not time to hold the employee for a drug test submission
or they have arrived at the company location after the collection site
is closed?
They do not have to be tested the first time they appear at a company
site. Do not tell them they have been selected, just be sure that they
are tested before the next group selection.
"BACKUP" SELECTIONS
How are "back-up" selections used?
There will be cases where an employee is not available for testing,
for example, an employee leaves the company before they have submitted
or an employee is on extended leave, perhaps a workers compensation leave.
Be sure there is sound reason for not testing a selected employee. Do not
allow the possibility for an accusation of favoritism or discrimination.
Document the reason for not testing the employee. Then test the next employee
on the list.
What if an employee refuses to be tested or makes themselves "scarce"?
DOT is very clear on this issue. 49 CFR §391.95 (d) A person
who refuses to be tested under provisions of this subpart shall not be
permitted to operate a commercial motor vehicle. Such refusal shall be
treated as a positive test and subject the driver to the restrictions contained
in paragraph (c) of this section.
The fact that a person is making themselves "scarce" is sometimes hard
to prove and may not exactly be refusing to test. This certainly would
constitute behavior leading to a reasonable cause drug test when they do
"appear".
"HOLDING" AFTER A RANDOM TEST
Should employees be held from service after a random test?
Regulations do not require that an employee be held, pending a result
on a random test. This, however is an issue that has caused concern for
many employers.
If the tested employee has a negative result, holding them can cause
undue delay and increased operations expense.
If the tested employee knows that they are going to have a positive
result and they are not held from service, they have an unsupervised period
of time from submission to confirmed result with the employers vehicle
and perhaps, valuable cargo. Though not a regulatory requirement, this
security issue is certainly one that every employer should consider.
MAKING THE SELECTIONS
How should random selections be made?
DOT has recommended that selections be made by computer, via a random
number generator. Drawing names from a hat is not random. For example,
If there are twenty names in the hat, the first person had a one in twenty
chance of being selected, the second person had only a one in nineteen
chance of being selected. This is not considered fair and equal treatment.
An ideal method off selection for random tests is to provide a computer
diskette to your MRO and let the selections be made "out of house". However
you choose to make random selections, be sure you can not be accused of
discriminating against any employee or group of employees.
Three conditions should be considered to determine if a post accident
test is required: Did your driver receive a citation for a moving violation resulting
from the accident?
There is a 32 hour "window" allowed in the regulations. By waiting to
find a collection site during normal business hours, the collection will
cost less and the collector will be more familiar with SAMHSA collection
procedures.
Employers are experiencing problems when a specimen can not be tested
because of improper collection procedures or chain of custody errors. By
the time this problem is known, the 32 hour "window" has passed and a valid
post accident test cannot be performed. In most of these cases, an inexperienced
person "did their best" in the middle of the night. By waiting until normal
business hours, the percentage of collection site errors is much lower
due to the availability of experienced collectors.
At the beginning of the DOT drug testing program there was some confusion
about drivers being responsible for the post-accident test. Since then
there has been clarification. DOT's intention is to require the driver
to cooperate in the testing process.
DOT realized that in many situations drivers will be away from carrier
locations and beyond the carriers control. The interpretation makes non
cooperation by the driver a violation of DOT regulations. DOT still holds
the motor carrier ultimately responsible for compliance with the regulations. Reasonable cause drug testing is one of the most valuable aids that
a personnel department can have if it is properly used. There are very
few reasonable cause drug tests being conducted. Perhaps too few.
Many managers are afraid of drug and alcohol testing. It is natural
to try to avoid the issue. Managers also have a responsibility to the company
and other employees to remove those persons from the workplace who are
suspected of being impaired.
When a manager accuses an employee of being under the influence of illegal
drugs or alcohol, they are subjecting themselves to accusations of unfairness.
Most managers are not professionally trained to diagnose drug or alcohol
impairment. By the time upper management looks into the issue the employee
no longer appears impaired. As a result, the entire matter is one of differing
stories and the only result is bad feelings on all sides.
Being impaired does not always mean using illegal drugs or alcohol.
Individuals can be impaired by common prescription pain medications or
muscle relaxants. While this is not illegal use, company policy should
address the legitimate use of potentially impairing drugs in the workplace.
A company policy should serve the company, its managers and its employees.
The company policy should clearly define when a person will be required
to submit for a reasonable cause drug or alcohol test. In addition, the
procedures that will be followed, the consequences of refusing to submit
and the consequences of a positive result should be clearly defined.
There are many other factors to consider when deciding if an employee
is impaired. Is it possible that this employee is diabetic, perhaps undiagnosed?
Does this employee have domestic or financial problems that are causing
tremendous stress? Many of these types of problems will cause behavior
that could be misunderstood as drug or alcohol impairment.
Because of the reasons outlined above, no accusation of impairment should
ever be made. The employee is observed (preferably by two managers) and
in private they are told, as a result of these observations it is believed
that there may be a problem that effects their ability to do their job.
In cases like this, company policy requires you to send an employee for
a reasonable cause drug and alcohol test and allow a doctor to examine
them.
The issue being discussed is the safety of the employee and their coworkers,
not the tests or exam. Often employees will try to change the issue. Your
company policy should include the fact that refusing to be tested has the
same consequence as a positive result. Be sure to have the managers who
witness the behavior document the facts leading to the decision to have
the employee tested. DOCUMENT ONLY THE FACTS!!! NEVER DIAGNOSE ANY PHYSICAL
CONDITION!!!
Once the decision has been made to confront the employee never allow
the option of "talking you out of it". If you are not willing to take whatever
action your company policy and FHWA requires then do not confront them.
You are leaving yourself open for accusations of discrimination if one
employee can "talk you out of it" and another does not. Do not be lulled
into thinking that employees never talk about such things.
Federal Highway requires that when a covered employee refuses to be
reasonable cause tested, as with any type of FHWA drug test, they are to
be treated the same as if they had a positive result. This means as of
the time they refuse they are medically unqualified to drive. MedReview’s
advise is when making a decision to do a reasonable cause test be certain
you are willing to enforce the regulations as well as your company policy
is the employee refuses to be tested.
The following text is from DOT’s regulations regarding the use of legitimate
prescription drugs.
Part 391.37 (12) ...except that a driver may use such a substance or
drug if the substance or drug is prescribed by a licensed medical practitioner
who is familiar with the driver's medical history and assigned duties and
who has advised the driver that the prescribed substance or drug will not
adversely affect the driver's ability to safely operate a motor vehicle,...
Please note that the doctor must advise, a drug will not impair. No
response from the doctor means the employee can not be on duty. The doctor
must tell the employee specifically, the prescribed substance or drug will
not adversely affect the driver's ability to safely operate a motor vehicle.
MedReview’s advise is to always get this release in writing.
A client told of a driver who left a terminal to deliver a load. Two
hours later, he returned to the terminal, with the load. He got out of
the truck and walked towards the building. He then abruptly turned and
returned to the truck. This was repeated several times in front of witnesses.
The driver refused to allow any one near him. This driver was sent for
an examination and a reasonable cause test. The diagnosis, the man was
having a stroke! His drug test result was negative.
A good and thorough policy should require an employee to be suspended
from duty pending the result of a reasonable cause test. This "cooling
off time" may be what the employee needed even if the test is negative.
In the case described above, sending this individual for an exam and test
undoubtedly saved this employee’s life. Return to duty testing under DOT consists of only one test, one time.
This is the test a donor takes on return from treatment and release by
the Substance Abuse Professional (SAP).
All return to duty tests should be observed collections. Because of
the history of a prior positive test there is a presumption that the donor
my try to submit a bogus or adulterated specimen. In order to be qualified
to return to duty, this test must be negative.
It is recommended that a letter of understanding be signed by the donor
and the company official regarding the return to duty test and follow up
tests and the consequences of a positive test under these conditions. Under DOT regulations a donor who has had a positive test, is released
by the SAP and has a negative result on their return to duty test is subject
to follow up testing.
Follow up testing is a regimen of unannounced testing for up to sixty
months during which a donor may be required to give a specimen at any time
without cause or notice.
Follow up testing must include at least six tests in the first twelve
months of the testing regimen. Any employment decisions regarding a positive
follow up test or a refusal to be tested should be clearly spelled out
in the letter of understanding referenced above. Many employers are not aware of the requirement for proficiency testing.
Under FHWA regulations, employers must submit blind proficiency samples
at a rate of 3% of actual samples.
A proficiency test is a specimen of known value submitted to test the
laboratory's accuracy. A comparison is made between the known value and
the laboratory result.
Because a proficiency test is not a "real" test your MRO needs to be
consulted when proficiency specimens are submitted. First, there is no
tested individual for the MRO to contact in the case of a positive laboratory
result. Second, it is the laboratory result, not the MRO result that needs
to be compared to the known value.
Proficiency specimens should be documented. Any differences between
the known values and laboratory results should be reported immediately.
In a DOT audit you may be asked to show an inspector the documentation
on your proficiency testing.
If an employer has over 2000 DOT covered positions the regulations require
that 20% of all proficiency specimens be "spiked positives" and that the
drug positive be for all of the SAMHSA five drugs in equal numbers.
Your MRO should handle proficiency testing for your company. The MRO
should track the number of actual tests conducted and submit the required
number of proficiency specimens in your behalf.
You should have documentation in your files documenting your proficiency
testing in the event of a DOT audit.
Email: [email protected]
|
