An Employer's Right to Hire and Fire

Is the Federal government infringing on an employer’s rights to hire or fire; can I hire anyone I want; do I have to keep a drug user employed and pay for treatment?

These are still some of the questions that periodically are asked by employers, many of whom have had drug and alcohol programs in place for some time, but have not had to deal with positive test results or with workers seeking help with their addiction.

To add to this confusion, on September 8, 2008, the U.S. Department of Labor, Mine Safety and Health Administration (MSHA) published in the Federal Register a proposed drug and alcohol rule for the mining industry. Although this rule stated that drug and alcohol testing procedures would generally follow those of the DOT rule (49 CFR Part 40), there were some differences in a number of policy requirements. One of these was that when a miner had a violation (positive test, refusal, etc.) and subsequently successfully completed treatment, the employer was obligated to return the individual to employment. In other words, the employer would have to return the miner to safety-sensitive work after the first violation of the rule.

This proposal, and please note – this is just a proposal at this point, triggered many comments from mine operators expressing concerns that this was an infringement on their company authority related to personnel action and hire/fire authority. Many mining operations also employ drivers who come under the authority of the Federal Motor Carrier Safety Administration (FMCSA) and some are wondering if this proposal will somehow overflow into FMCSA regulations.

At this point, the only concrete regulatory requirement addressing drug and alcohol violations and employer personnel actions – other than for Federal agencies – is the DOT Part 40 rule. Most of what is required from the employer is spelled out in Subpart B-Employer Responsibilities. Granted, the rule is complex and sometimes hard to understand – even though it was one of the first Federal rules written in “plain English”. There are a lot of requirements that an employer has to meet and these often seem to be stringent and confining on what actions employers can perform.

Believe it or not, nowhere in the rule is there any requirement that has a direct impact on the employer’s decision to hire, promote, fire, etc. Lets look at the whole employment process – within the transportation industry - and see what is really being asked of the employer. A critical issue to remember is that all of these regulatory requirements affect only those individuals who are applying for or are working in safety-sensitive (SS) positions.

In the pre-employment process, DOT requires a negative drug test for applicants who will be performing SS functions. Nowhere in the rule text does it say you may not hire the individual; it states that you may not use that individual in a SS position until there is a negative pre-employment test result.. An applicant is required to sign a release form to permit you to obtain drug and alcohol testing information from previous employers. If the applicant refuses to sign you can still hire that individual, but you cannot use that person in a SS position.

When an employee who is working for you violates the rules, you are required to remove the individual from SS duties. Again, there is no rule requirement that this individual be terminated from your employment. Another frequently asked question is related to employer responsibility to provide treatment following a violation. Section 40.289 is clear: “As an employer, you are not required to provide a SAP evaluation or any subsequent recommended education or treatment for an employee who has violated a DOT drug and alcohol regulation.”

Generally, there is a second part to that question and that is who pays for SAP evaluations. Again, Part 40 is clear on that; Section 40.289 continues with: “Payment for SAP evaluations and services is left for employers and employees to decide and may be governed by existing management-labor agreements and health care benefits.”

And finally, the question of returning someone who violated the rule back to employment. DOT does not require an employer to return that individual to employment or to SS duties. It is entirely an employer’s option based on company policy. In fact, if an employee does not show progress in treatment, DOT provides the employer an open-ended option in Section 40.301: “As the employer, following a SAP report that the employee has not demonstrated successful compliance, you may take personnel action consistent with your policy and/or labor-management agreements.”

Bottom Line: All personnel actions (hire, fire, suspension, promotion, etc.) are at the employer’s option. DOT does not mandate any of these functions. True, they have established criteria for SS positions in the transportation industry based on safety and protection of the traveling public. These criteria only control who and when an individual can perform these SS functions – all personnel actions are in your hands.