Post-Accident Particulars

Post Accident Particulars:

Post-Accident Alcohol Testing and Use of Law Enforcement Test Results

Post-accident drug and alcohol testing seems to always be a complicated process for many employers – especially the issue surrounding use of results from tests administered by law enforcement personnel. Since this issue is primarily one facing the highway industry, all the following comments are geared to that industry.

It is always dangerous to assume that everyone knows the basics. So, lets take a quick look to make sure that all readers are starting with the same basic concepts. First, the only time a drug or alcohol test would be administered by law enforcement personnel would usually be following an accident. There is no mechanism, for example, for an employer who maybe can’t conduct a test (we are talking about an alcohol test here) to ask a law enforcement person to conduct such a test – regardless if it is a random, reasonable suspicion, or post-accident test.

In reality, the only time a law enforcement test will be conducted, will be after an accident, and that would usually be an alcohol test – most law enforcement agencies do not conduct drug testing on a regular basis. Now for a surprise twist – some of these alcohol tests may involve blood testing – which as you know DOT does not permit. All of a sudden, things are getting complicated.

Back to basics. Post-accident testing. When do you as an employer conduct drug and alcohol testing under DOT requirements versus under your own company policy? Specific rule text is spelled out in the Federal Motor Carrier Safety Administration (FMCSA) rule, 49 CFR Part 382, Section 303. Here is the simple answer; print it and keep it by your phone:

That seems pretty simple, but a lot of employers have trouble with this decision table. Some employers basically conduct a DOT test after every accident and then hope to sort it out afterwards. Not a good idea! You can face sanctions for this practice during an audit. And don’t depend on your Third Party Administrator (TPA) to make the decision. You, the employer, will probably be the first to know that one of your drivers had an accident. You need to make the decision on what type of test is to be done and notify either the TPA or your driver. You can’t get out of that responsibility.

Back to the testing. After an accident that meets the FMCSA criteria, you must perform the tests as soon as possible: Drug tests must be performed within 32 hours following the accident, and alcohol tests must be performed within 8 hours. Now, does that mean you have 8 hours to make a decision about a test and/or to get your driver to where a test can be performed? No – the rule says as soon as possible. If you can’t administer the alcohol test within 2 hours following the accident, you must prepare and maintain a written record stating the reasons the test was not promptly administered. And, if you don’t administer the alcohol test within 8 hours, you must stop attempts to administer the test and again prepare and maintain a record of why you could not conduct the test.

What are some of the reasons that may be acceptable to an inspector as to why you could not get a test done quickly? One might be that the driver was injured and was receiving medical attention first. Stating that there was no one available to conduct an alcohol test will not suffice; as an employer, you are required to have procedures in place to meet these kinds of situations.

In the case where a Federal, State, or local law enforcement official decides to conduct an alcohol test following an accident, and the results are made available to the employer, these results may meet the FMCSA requirements, provided the tests conform to applicable Federal, State, or local requirements. It is important to note that in this case, if the alcohol test is done on a blood specimen, DOT will accept the results. The key here is to ensure that you as the employer will be able to obtain those results. If the law enforcement personnel do not conduct a drug test, you may still have to do that if the accident met the FMCSA criteria.

Bottom line: As an employer, you need to ensure that you have procedures in place to conduct post-accident testing no matter where the accident happens. Also, if you operate within a certain geographic area only, you may be able to determine which jurisdictions require post-accident alcohol testing and if these tests are available to employers. If a particular law enforcement agency will not release these results, it is better to know ahead of time and make preparations to have the tests conducted under your own or your TPA’s control. And finally, please refer to the above chart – it will save you a lot of grief and worry, and will hopefully keep you out of trouble.

Battle lines are being drawn; labor challenges DOT’s new rule related to direct observation for urine specimen collections.

You may remember reading a couple of months ago about DOT publishing new rules for direct observation collection of urine specimens. Now, DOT is postponing implementation of some parts of that rule until November 1, 2008.

What exactly is going on?

There is definitely some confusion going on, and as an employer, you are not alone in trying to understand the issues that seem to be in question.

Let us look at what actually happened:

On June 25, 2008 DOT published a final rule addressing a number of directives related to specimen validity testing and a modification in procedures for collecting urine specimens under direct observation (DO).

Because of the wide availability of prosthetic devices for providing clean urine, and findings by the Government Accounting Office that collectors are frequently less than diligent in preventing cheating during urine specimen collections, DOT directed that all DO collections also include the employee raising his/her shirt up to the navel and lowering pants/skirt to mid thigh. This was to ensure that no prosthetic devise was concealed on their person. This procedure was explained in the DOT notice of proposed rulemaking (NPRM) published on October 31, 2005.

In the June 25 final rule, DOT also mandated that all return-to-duty and follow-up tests (collections) be conducted under DO. Previously, DO collections for these type of tests were an employer option. Several labor organizations petitioned DOT to suspend this requirement since it had not been discussed in the October 31, 2005 NPRM. On August 26, 2008 DOT published a notice in the Federal Register changing the implementation date (for 40.67(b) – the section addressing mandatory DO collections for return-to-duty and follow-up) from August 25 to November 1, 2008 and provided a 30-day period for interested parties to provide comments.

What does all of this mean to you?

Simply put, all DO collections will require the new procedure to raise the shirt and lower pants/skirt. As an employer, you need to make sure that your collection site(s) or Third Party Administrator is aware of this requirement and will abide by it. Second issue – requirement for DO collections for return-to-duty and follow-up tests will remain employer option – until November 1 – when DOT will make a final decision.

That sounds pretty simple and employers may question what all the fuss is about? To a large degree, it’s all a matter of misinterpretation and misunderstanding. There are about 50 comments in the DOT docket from individuals and associations providing their views on this issue. Some commenters seem to think that DO collections are a new requirement and question the procedure’s invasiveness as well as the difficulty of meeting the requirement to have the same gender observer. This is puzzling, since the DO requirement has been in existence since August 2000. One may suspect that these individuals or companies have not been conducting DO collections in the past and are now surprised and think it is a new requirement.

Individual Comments
Some comments are from individual employees who are subject to these rules. Understandably, many of them are responding to the new procedure of lifting the shirt and lowering pants/skirt as overreaching and invasive to the extreme. Many labor organizations in addition to objecting to the shirt and pants/skirt procedure are lumping together the original DO requirement and the new directive making DO mandatory for return-to-duty and follow-up testing. Their original concern was that there was no comment period for requiring DO collections for return-to-duty and follow-up. DOT is now providing a 30-day period for comments on this subject.

SAP Comments
Quite a number of comments are from substance abuse professionals (SAP) and other individuals who provide treatment to drug and alcohol abusers. Most of them favor DO collections for return-to-duty and follow-up collections on the basis that these individuals have already provided evidence that they are users and/or dependent on drugs. In the SAP’s experiences, drug addicts often revert back to their destructive behavior and will use any means possible to avoid detection of their continued drug use. Drug testing is one way to not only detect use, but to also help and deter these individuals from reverting to their drug use behavior. Additionally, some SAPs indicated that many employers are reluctant to direct DO collections for return-to-duty and follow-up tests, thereby providing a potential opportunity for an employee who already is at risk to try and cheat on a drug test. Many of the comments state that if the concern is for safety of the traveling public, then DO collections for return-to-duty and follow-up are more than appropriate.

Collection Facility Comments
A number of collection sites made comments that they would not be able to meet these new DO requirements because their entire staff is female and most of the employees requiring drug testing are male. Here again, if this is what an employer hears from a collection site, the employer needs to ask what the site is doing now to meet the current DO requirement. There were some comments suggesting that if employers/ supervisors identified an individual for testing (return-to-duty and follow-up) and then accompanied that individual to the collection site, there would be no opportunity for the employee to obtain adulterants or prosthetic devices prior to the test. That may be true, but most employers do not follow these procedures, plus a return-to-duty test is usually scheduled to a certain degree.

BOTTOM LINE: Direct observation testing, to include raising shirt and lowering pants/skirt is here to stay. An employer and/or collection site must conduct these under certain criteria spelled out in the regulations. Mandatory DO collections for return-to-duty and follow-up testing is suspended until November 1, 2008 (Note: employers currently have the option to require this type of collection.) As an employer, you have the opportunity to make comments to the DOT docket on this issue (htt;://www.regulations.gov The Docket number is OST-2003-15245). Your comments are always important.

Stay tuned to this publication; as soon as DOT makes a determination related to mandating DO collections for return-to-duty and follow-up, we will publish the information in this Newsletter.

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.