DOT Publishes Guidance to Employers

The Department of Transportation (DOT) just published a manual titled “What Employers Need to Know About DOT Drug and Alcohol Testing”. This 60-page document provides guidance and best practices to employers on how to implement the regulatory requirements for drug and alcohol testing programs. A copy of the manual can be downloaded from the DOT web site at: http://www.dot.gov/ost/dapc/testingpubs/what_employers_need_to_know.pdf

Employers, even those who have their programs operated by Third Party Administrators (TPA), should obtain a copy and read it! The DOT made a tremendous effort to present the rather complex drug and alcohol testing rules in a readable and easy to understand format. Although this is not a beach read, it certainly will not put you to sleep like reading the actual Federal rules.

Why does an employer need to read this manual? First, it will really provide you with a simple and concise overview of what DOT requires from employers in the drug and alcohol-testing arena. Secondly, if you are using TPAs for any portion of your program (e.g., collections and/or medical review officer functions) or even if you have turned over the whole implementation of the program to a TPA, the information gleaned from this manual will help you to determine if your TPA is, in fact, providing the required services and at the appropriate level. For example, a collection site may tell you that their staff is trained in the collection procedures, but do you know how to verify if this is true? Remember, if your TPA is in non-compliance, the DOT will hold you, the employer, responsible!

Now that your interest has been peaked, let’s take a quick look at what these guidelines state. The manual provides an overview of the regulatory requirements, issues related to program implementation, and how to identify employees who are subject to testing. Most of this is common sense, but a review will trigger issues that many employers have forgotten.

Section III is important in that it addresses program policies and specifically addresses issues related to the relationship between DOT policies/programs and those of the employer.

Section IV is a must read for employers. It talks about selecting service agents (TPAs) and the roles that TPAs play in support of the program. A review of this section will certainly provide the employer with information that will be useful in not only selecting a TPA, but how to evaluate their performance. The issue of contracts is addressed and worth paying attention to the suggestions.

Section VI spells out drug and alcohol testing requirements and is a very important section. It clearly delineates the differences between the various transportation modes and also describes the differences in post-accident testing requirements among the modes. This is especially critical to understand for those employers who come under the regulatory authority of more than one operating administration (e.g., Federal Motor Carrier Safety Administration and the Federal Transit Administration). The difference in post-accident testing is one area that employers must understand; non-compliance, even if due to ignorance, does not protect the employer from DOT sanctions during audits. For example, did you know that for certain accidents, the Federal Railroad Administration requires the collection of not only urine specimens, but also blood specimens and that the U.S. Coast Guard permits the collection of blood specimens for certain Serious Marine Incidents? Yes, there are significant differences and as an employer who comes under the authority of more than one operating administration, you must know these differences.

This section also addresses submission of “blind specimens” to laboratories. This is a little understood requirement and the manual clearly spells out who has to comply with this requirement.

Section VII clearly covers the various scenarios related to what constitutes a refusal to test. This is probably one of the most important items that an employer should review. It will save you countless hours of sleepless nights and keep your legal fees more reasonable. Read this section carefully and determine if your company policies address the consequences related to each of the reasons for refusal.

Section VIII addresses the various requirements for record keeping. Each operating administration has slightly different requirements, so it is wise to review these to ensure that you and/or your TPA are in synch with the regulatory requirements. And finally, Section IX provides a short overview of what an employer should expect from a DOT audit. Understanding these requirements will help employers prepare for an audit and should lower your anxiety level – provided you have all your records in order.

DOT also provides seven appendices ranging from samples of forms that they require to post-accident testing criteria. The DOT is especially concerned with collection site security and appropriate collection procedures. They provide an appendix with 10 items that are critical in the collection process. As an employer, these are items that you should periodically review or have your TPA review to ensure that collection sites are following proper procedures. The collection process is still seen as the weakest link in the drug and alcohol testing process and needs everyone’s attention.

This manual contains very useful information and as an employer, you need to make sure your TPA has a copy of this manual, has reviewed it, and where needed, upgraded their services to match the DOT requirements. Of course, the manual is not a substitute for the actual Federal rule, but rather a readable summary of the various testing requirements. The Federal rule itself should be used in determining legal issues related to implementation or interpretation of drug and alcohol testing procedures.

When is Random Testing Really Random?

Some employers will say they don’t really worry about random selection or testing because they contracted this process out to a third party administrator (TPA). So, should I worry?

Yes, as an employer you do need to know what the Department of Transportation (DOT), and especially the Federal Motor Carrier Safety Administration (FMCSA) have to say about random testing.

Here are some statements by naïve employers:

• We pick all of our random selections for the whole year in January and then use that list for random testing throughout the year.
  
• We conduct two (2) selections a year.
  
• We select on a quarterly basis; if someone is not available to be tested in the quarter they are selected, we make sure to get them tested by the end of the year.If an individual is not available (not on site, or performing a task that prevents that individual from coming to the collection site for testing on the day a collector arrives), we pick an alternate person.

Lets start from the beginning and ask the question – What is the purpose of random testing?

DOT’s intent in establishing a random drug and alcohol testing program was to deter individuals in safety-sensitive positions from using illegal drugs and misusing alcohol. The bottom line was that if an individual did not know when and where he/she could be tested for drugs or alcohol, this would encourage them not to use these substances, prevent potential job loss, and improve public safety.

The corner stones of this program are:

• Each person in the random testing pool must have an equal chance of being selected.
  Selection is done with replacement (if a person is selected and tested, his/her name goes back into the pool).
  
• Testing must be spread evenly through out the year.
  
• Times when testing is conducted should not be predictable.Selection time may not be longer than 3 months, i.e., one quarter (FMCSA).

This seems pretty straightforward, but implementation sometimes gets pretty hairy. Here are some best practices:

• Do Not select a year ahead of time. If you make your selection in January, then anyone hired after that during the rest of the year would not be subject to testing. Remember, anyone performing safety-sensitive functions must have an equal chance to be picked for a random test. Note: Even with quarterly selections there will be situations where an individual is hired right after the quarterly selection and even if his/her name is placed into the random pool, that individual will not be tested that quarter. DOT is aware of this wrinkle in the process, but considers it a reasonable compromise. Just make sure that all new safety-sensitive employees are immediately placed in the random testing pool and, of course, remove those who are no longer performing these functions or have left your employment. Leaving these individuals in the pool “dilutes” it and may subject you to monetary fines during an audit.
  
• If someone is not tested during the selection cycle, you cannot test that person during the next selection period. If the individual was not tested, then his/her name goes back into the pool for the next selection time frame.
  
• Do test the individual anytime during the selection time frame. This means that as an employer, you know when that individual will be available for a test. You know the work schedule, when the individual will be on leave, etc. It is up to you to ensure that this individual is tested during the selection window. And NO, you can’t just substitute someone else because they are more readily available to be tested. Reminder: DOT will want to see written documentation why the selected individual was not tested. Did not get around to it, is not going to be a reason they will accept.
  
• If you know that an individual will be on extended sick leave you can skip selecting this individual if you know he/she will be gone throughout the entire testing period and select another alternate individual from the pool using a scientifically approved method. Or, you can set aside this individual’s name until that person comes back from extended leave, and you can conduct the test at that time, provide the individual returns before the next selection.
  
• You cannot require an individual to report for a test in the middle of vacation time, while sick, or on other types of excused leave. You can call the individual in for work and then conduct a test.

Lets look at a few other issues that come up frequently.

Notification: When and how do you do this? Basically, random testing is “short notice” type of testing. You should not give the selected individual excessive notification time that he/she must go for a test. For example, you should not call the individual at the beginning of his/her shift and indicate that he/she is to report to a clinic for a drug test at the end of the shift. This only provides the individual with time to drink copious amounts of water to dilute the specimen, obtain products to adulterate the specimen, or obtain substituted urine specimens.

DOT directs employers to ensure that once a selected individual is notified, they must proceed immediately to the collection site. “Immediately,” in this context, means that all the individual’s actions, after notification, lead to an immediate specimen collection. So, as an employer, if you know that an individual will not be able to leave the work site immediately, don’t make the notification until such time when the individual can secure his/her worksite and is able to go to the collection site. The definition of “immediately” should be clearly spelled out in the employer’s drug and alcohol testing policy. For example, if your collection site is within five minutes of your work site, you should clearly indicate in your policy that when individuals leaves to go to the collection site, they must get there within 10 or 15 minutes, other wise it will be considered a refusal. In a previous article, it was pointed out that only rare and documented incidents should be accepted by the employer as legitimate excuses for not showing up at the collection site within a reasonable time.

Finally, what about alcohol testing? There are some different requirements for random alcohol testing. An individual is subject to random alcohol testing only while performing safety-sensitive functions, just before performing safety-sensitive functions, or just after performing these functions. Performing a safety-sensitive function includes being immediately available to perform such functions. This means that although an individual may be performing clerical duties, if he/she is on call (i.e., ready to perform) they may be subject to a random alcohol test, even if they are not at that time performing safety-sensitive functions. Once again, make sure you have this clearly explained in your policy.

Employers need to be aware of the fact that testing for alcohol should not be confined only to testing before the individual starts a safety-sensitive function. Some tests should be scheduled during the shift and others when the individual finishes the safety-sensitive duty. Randomness and unpredictability are the corner stone of a good random alcohol testing program.

Of course, it goes without saying that only individuals in safety-sensitive positions should be in the random pool. You cannot mix DOT and non-DOT personnel in the same testing pool. You can have one random testing pool for both drugs and alcohol provided you have documentation of how the process works and that the method is scientifically valid and impartial regarding who gets selected. You can have two separate pools (one for drugs and one for alcohol testing) or if you have one pool, you can first select individuals for drug testing, and then conduct another selection for alcohol testing. You could also select the first 20 percent of the individuals selected for drug testing to also be subject to alcohol testing. Bottom line is – documentation!

Does possession of a Commercial Drivers License (CDL) automatically place the holder into the DOT drug and alcohol testing program?

A number of employers have asked a variation of this question and we will try to answer some of their concerns. First, the mere possession of a CDL does not automatically require the individual to be included in a DOT drug/alcohol testing program.

A simple question to answer: does the individual have a CDL and does that individual drive a Commercial Motor Vehicle (CMV)? If the answer is "yes" to both of these, then you must place that individual into a DOT testing program.

However, here are some of the areas that cause confusion. As an employer, you must know the DOT definition of a CMV. For purposes of drug/alcohol testing, this is a vehicle that has a gross weight (or combination weight) rating of 26,001 or more pounds; or is designed to transport 16 or more passengers, including the driver; or is of any size and is used in transporting hazardous materials requiring a placard under the Hazardous Materials Regulations (49 CFR par 172, subpart F).

So, where is the confusion coming from? Here are some of the questions raised by employers.

Situation #1. An employee has been working for me for several years and just recently obtained a CDL. Do I have to test this employee?

Answer: Only if this individual will now be driving a CMV. Having a CDL does not require drug testing unless that person also drives a vehicle as defined above.

Situation #2. This same individual has been in my company non-DOT drug testing program for a number of years. Do I still have to conduct a pre-employment drug test?

Answer: Yes. You must conduct a DOT pre-employment test before placing that individual into a DOT defined safety-sensitive position (i.e., driving); company tests may not be used in place of a DOT test.

Situation #3. I have some individuals who hold a CDL and volunteer to drive passenger vehicles (more than 16 passengers) for a non-profit organization. Do they have to be tested under DOT requirements?

Answer: Yes. The definition of “driver” in 382.107 and the definition of “employee” in 383.5 both include “any” operator or person who operates a CMV; there are no exceptions for volunteer drivers.

Situation #4. I have several supervisors with CDLs who are on call to drive if one of the regular drivers is not available. This happens rarely; do I still have to have these supervisors in a random testing pool?

Answer: Yes. These individuals must be in a random testing pool at all times, just like a full-time driver. A drug test must be administered each time the individual’s name is selected from the testing pool – even if they are not scheduled to drive. DOT considers these individuals ready to perform a safety-sensitive function at any given time, and therefore, they are subject to drug testing.

Situation #5. Are these individuals also subject to alcohol testing?

Answer: Alcohol testing may only be conducted just before, during, or just after the performance of safety-sensitive functions. If the individual’s name is selected, the employer must wait until the next time the employee is performing a safety-sensitive function, just before, or just after performing a safety-sensitive function, to administer an alcohol test. If a random selection period expires before the individual performs a safety-sensitive function, no alcohol test should be conducted; the individual’s name is returned to the random testing pool, and the number of individuals subsequently selected for alcohol testing should be adjusted accordingly to achieve the required testing rate.

Situation #6. If an individual (driver) is off work due to a temporary lay-off, illness, injury or vacation, should I remove that individual’s name from the random testing pool?

Answer: No. The individual’s name should not be removed from the random testing pool so long as there is a reasonable expectation of the individual returning to work.

Situation #7. Can I combine my DOT regulated employees with non-DOT employees into one random testing pool?

Answer: No. DOT is very specific that DOT regulated employees are to be separated from any non-DOT employees in the implementation of the drug and alcohol testing program.

As you can see, there are a lot of scenarios that frequently confuse employers. As an employer, if you run into a situation where you are unsure if DOT testing is required, refer back to the Federal rules – they really do contain most of the answers. Otherwise, call your Third Party Administrator; they are knowledgeable about all of the various rule requirements and will guide you through this complex maze.