TWO MORE QUESTIONS RAISED BY A FEW EMPLOYERS: INADVERTENTLY ADMINISTERED ALCOHOL TESTS AND WHAT IS THE STATUTE OF LIMITATIONS ON A POSITIVE TEST?

Many times, it’s the simple questions that prove the most troublesome to some employers. One of the old questions is raising its head again – what to do with an alcohol test that was administered to an employee who was not scheduled for an alcohol test. In many programs, selections for alcohol testing are combined or added to those selected for drug testing. Because of the difference in the annual rate for testing for drugs versus alcohol, a very small percentage of employees who are tested for drugs, are also tested for alcohol.

An employee goes for a drug test and the collection site inadvertently also administers an alcohol test. Of course, as is frequently the case, this alcohol test is positive. The employee claims that he/she was not supposed to have an alcohol test. The form provided by the employer indicated that only a drug test was scheduled. On top of all of this, some employees are very convincing in showing that they have a legitimate complaint and that the test should not be accepted.

The employer now is in a dilemma – cancel the test, make it a non-DOT test, ask for a second test, etc. The simple answer is to go back to the rule text and see what the regulation requires. Section 40.275 What is the effect of procedural problems that are not sufficient to cancel an alcohol test? – specifically addresses this issue. Paragraph (b) states: No person concerned with the testing process may declare a test cancelled based on a mistake in the process that does not have a significant adverse effect on the right of the employee to a fair and accurate test. For example, it is inconsistent with this part to cancel a test based on a minor administrative mistake (e.g., the omission of the employee's middle initial) or an error that does not affect employee protections under this part. Nor does the failure of an employee to sign in Step 4 of the ATF result in the cancellation of the test. Nor is a test to be cancelled on the basis of a claim by an employee that he or she was improperly selected for testing.

Although this is considered an error that is not sufficient to cancel an alcohol test result, the employer may, nevertheless, face enforcement action under DOT agency regulations.

The second question involves how far back in time does a violation have to be considered by an employer? As one employer asked, “What is the statute of limitations on a drug or alcohol positive result?”

The bad news is that there is no such thing as a statute of limitations on drug or alcohol positive test results. Where some confusion arises is the regulatory requirement to go back for three years to check on an applicant’s drug and alcohol testing history and on the fact that records of positive test results are kept by employers for only five years. Some employers and employees interpret these two regulatory requirements as meaning that test results outside of these two time frames do not have to be considered.

The following is an example of what sometimes happens. An applicant for Company A has a positive drug test on the pre-employment test. The applicant is not hired and either goes to work in a safety-sensitive job somewhere else or in a non-safety-sensitive job with another employer. The applicant does not go through the return-to-duty SAP process.

Seven years later, this same applicant comes back to Company A and applies for a safety-sensitive job. However, the company either still has a record of the previous pre-employment drug positive result or someone in personnel remembers what happened seven years ago. A more frequent occurrence is that the company’s Consortium/Third Party Administrator, who scheduled the pre-employment test seven years ago, still has this record and notifies the company that the applicant had a positive result at that time.

Given the above scenario, applicants and some employers are saying that since the positive test result was prior to the three-year record review and/or that there are no records at the company of the positive result, that the previous positive results can be ignored. Unfortunately, this is not true. There is no time limit on the requirement that following a drug or alcohol violation, an individual must complete a SAP evaluation and the return-to-duty process before being able to perform safety-sensitive duties. This responsibility not only rests on the employer’s shoulders, but also on the individual.

Once again, going back to the rule text, Section 40.285 When is a SAP evaluation required?- spells out the regulatory requirement in paragraph (a):

As an employee, when you have violated DOT drug and alcohol regulations, you cannot again perform any DOT safety-sensitive duties for any employer until and unless you complete the SAP evaluation, referral, and education/treatment process set forth in this subpart and in applicable DOT agency regulations. The first step in this process is a SAP evaluation.