SOME OLD QUESTIONS WITH THE SAME OLD ANSWERS

Recently, a couple of old questions have come up again and may warrant a response for the benefit of those employers who have not heard them before or who have forgotten the answers.

If an employee (driver) fails to show up at a collection site, who makes the determination that this is a refusal? Believe it or not, we got several different answers from employers. In this case, the first thing to do is see what the rule text actually states. Yes, the rules do provide answers in most cases.

Part 40.61(a) directs the collector to do the following: “ When a specific time for an employee's test has been scheduled, or the collection site is at the employee's work site, and the employee does not appear at the collection site at the scheduled time, contact the DER to determine the appropriate interval within which the DER has determined the employee is authorized to arrive. If the employee's arrival is delayed beyond that time, you must notify the DER that the employee has not reported for testing…”

So what is a refusal? Per 40.191(a)(1), a refusal is when employees: Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer. This includes the failure of an employee (including an owner-operator) to appear for a test when called by a C/TPA (see §40.61(a));

The confusion here lies in the interpretation of who actually makes the final decision that this is a refusal to test. It is obvious that the collector makes the call that a particular situation exists, i.e., the driver did not show up for testing or appeared several hours after the time designated by the DER. However, in most cases, it would be the DER who attempts to discover all the details of what actually happened. Was the driver notified of the requirement to go to the collection site, when was the notification issued, what extenuating circumstances occurred during this scenario, and what are company policies related to this subject.

Lets break down in more detail the process described above. The rules require the driver to proceed to the collection site immediately after notification. Part 382.305(l) states: Each employer shall require that each driver who is notified of selection for random alcohol and/or controlled substances testing proceeds to the test site immediately; provided, however, that if the driver is performing a safety-sensitive function, other than driving a commercial motor vehicle, at the time of notification, the
employer shall instead ensure that the driver ceases to perform the safety-sensitive function and proceeds to the testing site as soon as possible.

The issue here is, was the notification properly carried out and when did the driver actually leave to go to the collection site. Some employers actually tell a driver that he/she has to be at the collection site “that afternoon” or “before the day ends”. This generally gives the driver who is using drugs sufficient time to obtain substituted urine or an adulterant before coming to the collection site. It is also not the correct procedure that the employer should follow.

Presuming the notification was done correctly, the DER then has to determine why the driver did not show up or was late at the collection site. Was the driver given the correct address of the collection site? Yes, there have been situations where the DER was not aware that the company’s collection site had changed and sent the driver to the wrong place. Is this a refusal? Of course not. The driver complied with the proper instructions and it is not the driver’s fault that he/she was sent to the wrong collection site. Being late for the collection because the driver had to pick up the kids at school is not an appropriate reason for being late or not showing up at the collection site. Being in a car accident on the way to the collection site is a reasonable excuse, provided the DER can obtain documentation from a police report or other source that the driver was truly involved in an accident that prevented him/her from proceeding to the collection site.

And finally, what is the company policy related to this situation? Does it spell out specifically what a driver has to do once he/she is notified to proceed to a collection site? Does it clearly identify those situations that can be appropriate reasons for being late or not arriving at the collection site versus those that are not acceptable by the company? Remember, your company policy will be used to determine compliance during any legal or administrative proceedings.

Bottom line then, in most cases the DER will make the determination if a refusal to test exists when a driver is late or does not show up at the collection site. However, the DER has to apply this decision in a reasonable manner – it may well be challenged by an inspector during a safety audit. Also, if an employer obtains its services through a consortium/ third party administrator (C/TPA), this third party will generally try to provide guidance to the DER in these cases. The C/TPA is the one who arranges the specimen collections and knows if a test was conducted or not. They will generally contact the DER in the cases discussed above and provide guidance on how to proceed. DERs and companies should pay close attention to this, since most C/TPAs have experience in this area and their goal is to ensure that the employer operates the DOT drub and alcohol program according to the rules.

The second issue that has come up – again – is related to a driver returning to duty after a violation. If the driver has been out longer than 30 days, does the employer have to conduct a pre-employment test and a return-to-duty test?

Here is an interpretation from the Federal Motor Carrier Safety Administration on this issue (382.309): *Question 1: A driver has tested positive and completed the referral and evaluation process up to the point of being released by the SAP for a return-to-duty test. The driver no longer works for the employer where he/she tested positive. The driver applies for work with a new employer. Must the new employer conduct two separate controlled substances tests (one pre-employment and one return-to-duty), or will one test suffice for both purposes? Guidance: An individual, who has complied with the education/treatment process as required under 49 CFR Part 40, Subpart O, but has not submitted to a return-to-duty test, and is seeking employment with a new employer, a single test will suffice to meet the requirements of §382.301 and §382.309 only when the new employer would be required to conduct both tests on the same day. *Editor’s Note: This interpretation was issued after the interpretations were published in the Federal Register in April 1997.
So, yes, the employer could roll up both tests into one if both are to be conducted on the same day. This interpretation was written before the mandated direct observation testing for return-to-duty. However, Part 40 states that if a direct observation collection was to be conducted, but was not, the driver must be recalled for a direct observation collection. So, we would have to assume that this kind of test - even though it is a combined pre-employment and return-to-duty test - would be under direct observation.
Bottom line for all of the above is – document, document, and document.