What are an employer’s responsibilities...

...when an applicant admits to testing positive on or to refusing to take a pre-employment test within the past two years?

The Department of Transportation (DOT) drug and alcohol testing rule (49 CF Part 40) specifically spells out in Section 40.25 what an employer has to do to check an applicant’s prior alcohol and drug testing history with previous employers for whom the individual performed safety-sensitive functions during the previous two years.

Some employers do not realize that paragraph (j) of that section explicitly directs the employer to “ask the employee (i.e., applicant) whether he or she has tested positive, or refused to test, on any pre-employment drug or alcohol test administered by an employer to which the employee (applicant) applied for, but did not obtain, safety-sensitive transportation work covered by DOT agency drug and alcohol testing rules during the past two years.” What this means is that an employer or its service agent (Third Party Administrator (TPA)) must ask this question as part of the hiring process for DOT safety-sensitive positions and this needs to be documented in a manner that can satisfy an auditor.

Getting back to the original question, what is the employer to do when an applicant admits to testing positive or refusing to take a pre-employment test? Obviously, the individual did not get hired and as an employer, you need to now determine if the applicant followed all the procedures spelled out in the Federal regulations and complied with the return-to-duty requirements – that is provided you still want to hire that individual. This means that you must obtain documentation that the applicant went to a Substance Abuse Professional (SAP) for an initial evaluation, followed all the recommendations of the SAP for education and/or treatment, obtained a follow-up evaluation from the SAP, and complied with the SAP’s recommended follow-up tests.

If an applicant admits to testing positive or refusing to test on a previous pre-employment test:
This procedure looks formidable so let’s break it down to a more practical process. Probably in the majority of cases, if an applicant admits to testing positive or refusing to test on a previous pre-employment test, he/she was not hired and probably did not go to see a SAP. In that case, you may not use that individual in a safety-sensitive position until he/she goes for the initial SAP evaluation, follows the recommended program, and has a follow-up evaluation that indicates the individual has progressed to the extent that he/she can return to safety-sensitive duty. As an employer, if you want to hire this individual you are not required to pay for the SAP evaluations and education/treatment, although you may do so if it is consistent with your policy.

Verifying a that an applicant saw a SAP
Now lets suppose the applicant tells you that he/she did see a SAP and followed a program and is now ready to return to safety-sensitive duties. If you want to hire this individual you must obtain documentation of this return-to-duty process. The applicant may have documents from the SAP indicating the progression of evaluation and treatment and recommended follow-up. However, since documents can be compromised, it is always a good idea to contact the SAP and verify this information. In some cases, you may want to receive copies of these documents directly from the SAP, especially if the applicant does not have them, but is willing to have the SAP provide them to you.

If you want to hire the Applicant
We are now at the final step. As an employer, you want to hire the applicant and you have all the relevant SAP documents. In all cases, the SAP must recommend a minimum of six drug or alcohol or both tests within 12 months following return-to-duty. In most likelihood these have not been done since the applicant has not been in a safety-sensitive position. These will have to be done by you as the new employer and that is in addition to enrolling the individual into your random testing program. One final step; there is a requirement that before this individual can go back to safety-sensitive functions, he/she must have a “return-to-duty” drug and alcohol test which is negative. In most cases, DOT agency regulators have permitted this test to serve two functions and be combined into one test, i.e., as a pre-employment test and as a return-to-duty test – just make sure you document this in some manner.

Important Issues for Employers:

The Federal Motor Carrier Safety Administration’s (FMCSA) rule (49 CFR Part 391) requires information from previous employers be obtained for three prior years. So, although Part 40 requests two years of alcohol and drug history from prior employers, in reality for employers who come under the authority of FMCSA this translates to three years of prior information.

As an employer if you have someone who refuses or has a positive drug or alcohol pre-employment test, you are obligated to provide that individual with several names, addresses, and telephone numbers of SAPs, even if you do not hire that individual. This information may be provided by you or your MRO or TPA and neither you nor your service agents may charge the applicant for this information.

If the applicant tells you that he/she refused or tested positive on a pre-employment test, but no documentation exists that the applicant successfully completed the return-to-duty process, a current return-to-duty process must occur before the applicant can again perform safety-sensitive functions.

If the applicant admits to a violation of the drug and alcohol testing rules, has completed all the return-to-duty procedures and is now in the follow-up stage and employed in a safety-sensitive position by another employer, and you hire this individual, you will be responsible to “finish” the follow-up testing. What this means is that the SAP may have directed that the applicant undergo 10 follow-up drug tests within the first year after returning to safety-sensitive duty and the applicant’s current employer has completed six of these tests. If you hire this individual you will have to complete the other four follow-up tests that were required as part of the SAP’s follow-up plan.