Record Keeping – Is There an Easier Way?

Records, documents, files, paper everywhere! Are you drowning in paper or is everything in an electronic database and you are keeping it forever?

The Department of Transportation (DOT) directs employers to maintain certain records related to the drug and alcohol testing program. Additional requirements are also placed on employers by the various modal administrations (Federal Motor Carrier Administration FMCSA, Federal Aviation Administration, etc.) and are specific to that particular transportation industry. The following comments are geared primarily to employers subject to FMCSA regulations.

As an employer, you have enough problems keeping track of all the governmental and bureaucratic requirements related to your core business. Tracking record requirements for your drug and alcohol program is probably your least favorite thing. However, during an audit if these records are not up to par, you may face some serious fines. Did you know that in some cases, using a driver whose record indicates a positive test result, but does not show that the driver went through a substance abuse professional (SAP) evaluation and treatment, may subject you to a $10,000 a day fine? That is definitely not good for business.

As an employer you have a few options:
· Keep all required records yourself at your place of business.
· Keep some of your records at your place of business and other records by your Third Party Administrator (TPA) with whom you have a contract for your drug and alcohol testing program.
· Let your TPA keep all your records for you.

Here are the regulatory requirements (FMCSA) that you have to follow:

Subpart D - Handling of Test Results, Records Retention, and Confidentiality
§ 382.401 Retention of records.
(a) General requirement. Each employer shall maintain records of its alcohol misuse and controlled substances use prevention programs as provided in this section. The records shall be maintained in a secure location with controlled access.

(b) Period of retention. Each employer shall maintain the records in accordance with the following schedule:
(1) Five years. The following records shall be maintained for a minimum of five years:
(i) Records of driver alcohol test results indicating an alcohol concentration of 0.02 or greater,
(ii) Records of driver verified positive controlled substances test results,
(iii) Documentation of refusals to take required alcohol and/or controlled substances tests,
(iv) Driver evaluation and referrals,
(v) Calibration documentation,
(vi) Records related to the administration of the alcohol and controlled substances testing programs, and
(vii) A copy of each annual calendar year summary required by §382.403.
(2) Two years. Records related to the alcohol and controlled substances collection process (except calibration of evidential breath testing devices).
(3) One year. Records of negative and canceled controlled substances test results and alcohol test results with a concentration of less than 0.02 shall be maintained for a minimum of one year.
(4) Indefinite period. Records related to the education and training of breath alcohol technicians, screening test technicians, supervisors, and drivers shall be maintained by the employer while the individual performs the functions which require the training and for two years after ceasing to perform those functions.

Note: Paragraph (c) of this rule text provides further descriptions of the types of records that are to be maintained. If you are maintaining your own records, you need to read this section. One other gem of wisdom from this paragraph: “If the record is required to be prepared, it must be maintained.”

This sounds like a lot of stuff to be worried about; and it is! If you opt for maintaining all files/documents yourself, then you have to follow the above requirements to the letter. If you want your TPA to maintain your files, there are a few items you need to consider.

First of all, you or the TPA must be able to produce copies of all the files needed for an audit within two business days. This can be a problem for many larger companies with multiple sites if the TPA stores the paper files exclusively in a central location. That is why maintaining electronic files with your TPA can be especially helpful because the files are always accessible to the satellite locations.

If you want to keep some files yourself and have the TPA keep other files, you need to determine who maintains which files. You don’t want to be in a situation where during an audit you think the TPA has certain files and they tell the inspector that they thought you kept the files. However, if you have the TPA image all of your documents to an electronic format, you can be assured that you always have access to any file.

So, it’s a no-brainer that if you keep your own files, you have to keep all of them for the required time spelled out in the regulations.

If a TPA maintains some of your files, you should still keep copies of the employer’s chain of custody form (CCF), the MRO results report, copies of the SAP reports, and certainly relevant documentation related to reasonable suspicion and post-accident testing. Auditors will generally want to see these “original” copies.

There are some advantages to a TPA maintaining your files. Usually, TPAs are more knowledgeable than employers as to what the regulations require and how to implement these requirements. They also have much more sophisticated computer systems on which to maintain all of these records.
For example, besides maintaining all files related to random selection and testing, data for the annual MIS report, results of all tests conducted, etc., a TPA can maintain all of your driver qualification files on their system, providing you with notifications of specific actions required to update the files, trigger various reports, arrange for medical examinations, and any other action required to maintain the files in accordance with the regulations. This can certainly remove some of the paper work burden facing an employer and streamline the whole process.

As an employer, you need to determine what other files you want the TPA to maintain for you. Do you want them to keep copies of reports explaining why a reasonable suspicion test was conducted; reports of why a post-accident alcohol or drug test was not performed within the specified time frame; alcohol and drug information from previous employers; supervisory training records, etc., or will you be more comfortable having these records at your place of business?

Once you bite the bullet and make some of these decisions, your life should get a lot easier and you will not have to panic when you hear the word audit!