State Requirements for Employers to Report Positive Drug & Alcohol Results

Based on a number of recent inquiries, it seems that many employers are not aware of requirements to notify or report to certain State regulatory licensing authorities when a driver tests positive for drugs or alcohol or refuses to test.

Surprised? This requirement is not widely publicized partially because only seven States have this requirement: Arkansas, California, Oregon, North Carolina, New Mexico, Washington, and Texas. To add to the confusion, requirements vary from State to State. For example, some require reporting of positive results for drugs and alcohol while others require reports only for drugs – no refusals or alcohol results; some only enter this information into a data base and others actually disqualify the driver. Confusing – of course.

Lets simplify the process. First of all, these States have initiated legislature to try and close the loop where a driver has a positive drug or alcohol test result, but maintains his/her commercial drivers license (CDL) and continues to drive. All of the States attempted to mirror as closely as possible the DOT regulations. These are directed at the highway industry and drivers with CDLs who come under the authority of the DOT drug and alcohol testing requirements.

Keep in mind that each State has regulatory authority only over those drivers to whom the state issued a CDL. For example, Texas requires reporting of positive results and refusals for drugs and alcohol, but this affects only those drivers who have a CDL issued by the State of Texas. However, you have to remember that the driver does not have to be working in Texas to come under this requirement. The driver could be in Maryland where the employer is located, but if he/she has a drug positive result, the employer and the MRO (or Breath Alcohol Technician (BAT) – if the result is for alcohol) must report this to the Texas Department of Public Safety, Motor Carrier Bureau – and, it does not matter that the employer’s MRO is in New York.

On a practical level, this means that as an employer, you have to know which of your drivers have CDLs issued by one of the seven States listed above. Visit each of the States’ web sites and obtain the proper forms and instructions for filling them out. Although the forms will indicate what information is requested by each State, it would help if you identified these differences for yourself and ensure that your MRO is not only aware of these requirements and has copies of the forms, but also knows what to report to each State. Also, remember to send some documentation to the MRO as to which drivers are affected by this requirement; the same should be done for those States that require reporting of alcohol results by BATs. Generally, neither the MRO nor the BAT will know or even ask a driver what State issued the CDL, so it is up to you, the employer to make sure your MRO and BAT have this information.

Finally, Arkansas, Oregon, and Texas make their data base available to prospective employers with the applicant’s consent. If your business is located in one of these States, it probably is a good idea to query this database as part of your pre-employment background check of the applicant’s drug and alcohol history.

Co-incidentally, the DOT published an Interim Final Rule (IFR) on Friday, June 13, 2008 in the Federal Register [Vol. 73, No. 115, page 33735] addressing this very issue. This IFR authorizes employers and third party administrators (TPA) for owner-operators to comply with State laws and provide to the State CDL licensing authorities information about all violations of DOT drug and alcohol testing rules. And, more importantly, this release does not require the driver’s consent.

The DOT published this rule to avoid any potential conflict between the stringent privacy requirements under 49 CFR Part 40 and State laws requiring release of this information. The DOT felt that State action to suspend or revoke the CDLs of these drivers until they demonstrate that they have successfully complied with the Substance Abuse Professional (SAP) return-to-duty process, was justified because of safety benefits to the traveling public.

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!