DRUG/ALCOHOL TESTING AND THE HOLIDAY SEASON;
Are you going to be a “Grinch” employer?
Note: Although this is not a specific Federal issue, the following applies to both Federal and non-Federal programs.
Yes, the year is coming to a close. Time to close the books, estimate the damage/profit for this year, and maybe end the year with a couple of company parties to keep employees happy – instead of giving bonuses. Drug or alcohol test anybody at this time? Why? The year is almost over, you have met your random testing quota, and besides, who would be doing drugs during Christmas?
Well, you have to remember the purpose for having drug/alcohol testing programs – deterrence! Yes – unexpected, unannounced testing helps some of your employees to abstain from using drugs and from inappropriate use of alcohol. Unfortunately, the Holiday season is one where there are a lot of different pressures on many individuals. It is a time when some people get depressed (for a number of different reasons), some get more stressed out with the increased pace, shopping, family issues, etc., and others just get carried away with year-end celebrations.
The end result is that many people “self-medicate” themselves with prescription medication, illegal drugs, and/or increased alcohol use. Regrettably, this behavior is frequently accepted by co-workers and employers; the fact that an employee is a little off kilter, more abrasive, louder than usual, angrier are all attributed to the stress of the Holidays. Rarely, are these behaviors seen as something to get concerned about.
By the way, many employers stop all drug and alcohol testing two to three weeks before the end of the year. Frequently, this is common knowledge at the company and really a “get out of jail” card for those who want to celebrate a little harder. Also, many employers feel that since they have met their minimum random testing quota, this is all the testing they can or should do. This is a misconception. An employer can always test more than the minimum and some employers will tell their employees specifically that testing will be conducted through the Holidays – just in case some of them are planning on stepping over the line.
If you have a 24/7 operation nothing prevents you from testing even on Christmas Day. It may cost you just a little more to conduct a test, but it may potentially save you a lot more money in the long run by possibly preventing an accident that could be attributed to drug or alcohol impairment. Will some of your employees call you a Grinch? Maybe, but consider what you may have accomplished: you may have saved an employee’s life or that of someone else on the road and at the same time kept your company from facing devastating litigation.
Take a look at your random testing schedule. When was the last test conducted? What kind of testing did you conduct during this same time frame last year? Did you ever test during the Holidays since the start of the program? All of these questions should help you determine if and when you should conduct drug/alcohol tests during the Holiday season.
A more problematic issue is that of office parties and the approval or permissive use of alcohol. Many employers now have strict policies about office parties and availability of alcohol. They have learned that in most states courts will hold them accountable if an employee leaves an office party inebriated and subsequently has an accident while driving – or even falling down a staircase. This is frequently true even if the company-sponsored event is held off company premises. Obviously, if a company office party will include alcohol, make sure that there are non-alcoholic beverages available, that whoever is serving drinks pays attention to how much someone is ingesting (similar to bartenders), have food available, and of course make provisions to drive or get a taxi for anyone who is unable to drive. For sure, you do not want someone who is scheduled to start a safety-sensitive function to stop by at the party and have a drink before they go on the job.
BOTTOM LINE: You should spell out your specific concerns and requirements so that everyone knows about them – either as a Holiday reminder of company policy or maybe as part of the announcement about the party. Reaffirm that drug use during this time is not condoned and emphasize that the company may conduct drug/alcohol testing during this time frame. If you do not permit alcohol use at company parties, make sure you state that in no uncertain terms. Common sense is a key ingredient here, but you have to use it – and enjoy the Holidays!
Are You a Grinch Employer?
An Employer's Right to Hire and Fire
Is the Federal government infringing on an employer’s rights to hire or fire; can I hire anyone I want; do I have to keep a drug user employed and pay for treatment?
These are still some of the questions that periodically are asked by employers, many of whom have had drug and alcohol programs in place for some time, but have not had to deal with positive test results or with workers seeking help with their addiction.
To add to this confusion, on September 8, 2008, the U.S. Department of Labor, Mine Safety and Health Administration (MSHA) published in the Federal Register a proposed drug and alcohol rule for the mining industry. Although this rule stated that drug and alcohol testing procedures would generally follow those of the DOT rule (49 CFR Part 40), there were some differences in a number of policy requirements. One of these was that when a miner had a violation (positive test, refusal, etc.) and subsequently successfully completed treatment, the employer was obligated to return the individual to employment. In other words, the employer would have to return the miner to safety-sensitive work after the first violation of the rule.
This proposal, and please note – this is just a proposal at this point, triggered many comments from mine operators expressing concerns that this was an infringement on their company authority related to personnel action and hire/fire authority. Many mining operations also employ drivers who come under the authority of the Federal Motor Carrier Safety Administration (FMCSA) and some are wondering if this proposal will somehow overflow into FMCSA regulations.
At this point, the only concrete regulatory requirement addressing drug and alcohol violations and employer personnel actions – other than for Federal agencies – is the DOT Part 40 rule. Most of what is required from the employer is spelled out in Subpart B-Employer Responsibilities. Granted, the rule is complex and sometimes hard to understand – even though it was one of the first Federal rules written in “plain English”. There are a lot of requirements that an employer has to meet and these often seem to be stringent and confining on what actions employers can perform.
Believe it or not, nowhere in the rule is there any requirement that has a direct impact on the employer’s decision to hire, promote, fire, etc. Lets look at the whole employment process – within the transportation industry - and see what is really being asked of the employer. A critical issue to remember is that all of these regulatory requirements affect only those individuals who are applying for or are working in safety-sensitive (SS) positions.
In the pre-employment process, DOT requires a negative drug test for applicants who will be performing SS functions. Nowhere in the rule text does it say you may not hire the individual; it states that you may not use that individual in a SS position until there is a negative pre-employment test result.. An applicant is required to sign a release form to permit you to obtain drug and alcohol testing information from previous employers. If the applicant refuses to sign you can still hire that individual, but you cannot use that person in a SS position.
When an employee who is working for you violates the rules, you are required to remove the individual from SS duties. Again, there is no rule requirement that this individual be terminated from your employment. Another frequently asked question is related to employer responsibility to provide treatment following a violation. Section 40.289 is clear: “As an employer, you are not required to provide a SAP evaluation or any subsequent recommended education or treatment for an employee who has violated a DOT drug and alcohol regulation.”
Generally, there is a second part to that question and that is who pays for SAP evaluations. Again, Part 40 is clear on that; Section 40.289 continues with: “Payment for SAP evaluations and services is left for employers and employees to decide and may be governed by existing management-labor agreements and health care benefits.”
And finally, the question of returning someone who violated the rule back to employment. DOT does not require an employer to return that individual to employment or to SS duties. It is entirely an employer’s option based on company policy. In fact, if an employee does not show progress in treatment, DOT provides the employer an open-ended option in Section 40.301: “As the employer, following a SAP report that the employee has not demonstrated successful compliance, you may take personnel action consistent with your policy and/or labor-management agreements.”
Bottom Line: All personnel actions (hire, fire, suspension, promotion, etc.) are at the employer’s option. DOT does not mandate any of these functions. True, they have established criteria for SS positions in the transportation industry based on safety and protection of the traveling public. These criteria only control who and when an individual can perform these SS functions – all personnel actions are in your hands.
Post-Accident Particulars
Post Accident Particulars:
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.