By Sharon Bottcher, Current Consulting Group
This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.
The U.S. Department Of Transportation (DOT) agencies (Federal Motor Carrier Safety Administration (FMCSA), Federal Aviation Administration (FAA), Federal Transit Administration (FTA), Federal Railroad Administration (FRA) and Pipeline and Hazardous Materials Safety Administration (PHSMA)) and U.S. Coast Guard (USCG) require employers covered under their respective regulations to have policies in place that fully explain the required drug and alcohol program. Each agency has slightly different rules and policy requirements and each agency’s regulations detail specifically what is required to be outlined in the policy.
Following is an overview of general DOT policy development and program management best practices.
DOT Policy Development and Distribution
The DOT regulations require covered employers to develop a written policy on controlled substance use and alcohol misuse in the workplace in accordance with the applicable agency regulations. The employer must distribute the policy to every covered employee and in some circumstances must display the policy. The policy must be distributed to each employee prior to the start of alcohol and controlled substance testing and to each employee subsequently hired or transferring into a safety-sensitive position.
The policy should include, but not be limited to the following criteria:
- The category of employees subject to testing.
- The identity of the company employee who will assist with questions regarding the policy and testing program.
- The procedures used in the testing process to uphold the integrity of the program.
- The prohibited substances and behaviors.
- The circumstances for testing.
- The consequences of a policy violation, including a refusal to test.
- Effects of alcohol and controlled substances.
DOT requires drug testing under the following circumstances:
- Pre-employment for anyone applying for or transferring into a covered safety-sensitive position.
- Reasonable suspicion.
- Random (annual frequency rates vary by DOT agency).
- Return to duty (following the completion of the SAP evaluations process).
- Follow-up testing (required of those who return to duty following participation in an approved drug treatment program as recommended by the SAP).
Additional Policy Provisions
As an employer regulated by the DOT, you may go beyond the regulatory requirements to incorporate optional DOT provisions. For instance, it is optional to require retesting for certain negative dilutes. It is also optional to include alcohol testing for pre-employment situations or return-to-duty testing if a company includes voluntary admissions as part of their program. Although these decisions are not obligatory for the employer, if an employer chooses to add these testing provisions to their policy, they must comply with DOT regulations.
On the other hand, if a company should elect to require testing of DOT employees for controlled substances other than the required 5-drug panel or choose to require additional testing circumstances such as post-accident testing for situations that do not meet the criteria under DOT, it is imperative that employees are aware they are being tested under company authority rather than DOT authority in those situations. Testing conducted in the above circumstances is prohibited under DOT authority and the employer may not use Federal Drug Testing Custody and Control Forms (CCF) for such tests. Instead, testing should occur on a non-federal form under the company’s non-DOT policy in accordance with all applicable state laws.
Policy and Program Management
A policy is not only required by each DOT agency, it serves an important function as the foundation to a successful program; hence, it is a valuable tool used to assist in managing a drug testing program. The management of the program plays a significant role and is key in creating efficiencies and consistencies to protect against non-compliance and potential litigation.
There are numerous required conditions outlined in a policy that may be used simultaneously to adhere to certain documentation and recordkeeping requirements. As an example, the below segments are either mentioned in the policy or required under DOT testing regulations. These components could be referenced in the policy to ensure the process is followed in accordance with the requirements or discussed and covered as part of the required training for program managers.
Acknowledgement of Receipt of Policy
After each employee receives a copy of the policy and prior to testing, the employer must obtain a signed statement certifying that the employee has received a copy of the policy. The signed statement must be maintained, and a copy of the acknowledgement may be given to the employee.
The FMCSA requires all employers to provide regulated employees, prior to performing safety-sensitive functions, with a post-accident checklist that details the company’s procedures regarding drug and alcohol testing following a covered accident. The checklist must include instructions for the driver on what procedures to follow to ensure a drug and alcohol test is conducted when an accident occurs as outlined by the regulations.
Previous Testing History Background Check
As part of the pre-employment process for new hires or individuals transferring into a safety-sensitive position, the regulations require an employer to check the person’s DOT drug and alcohol testing history. The employer must check with any DOT-regulated company that employed the person during the timeframes outlined in the regulations. The previous testing history must be documented and kept on file.
In addition, the regulations require employers to “ask” all prospective employees offered a DOT-regulated position whether they have tested positive or refused to test on any DOT-required pre-employment drug test. If the employee admits that s/he had a positive test or refused to test, the company must not use the employee to perform safety-sensitive functions until the employee successfully completes the return-to-duty process. While documentation is not required, it would be a good practice to follow for verification purposes.
Previous Participation in a Testing Program
There may be situations when a DOT agency will allow an employer to bypass a pre-employment test of applicants if certain conditions are met. If an employer meets the criteria to bypass a pre-employment test, it must be documented and retained on file.
Reasonable Suspicion/Cause Documentation
An employer shall require an employee to submit to a controlled substance or alcohol test when the employer has reasonable suspicion to believe that the employee has violated the regulations, or the employer has suspicion based on a specific, contemporaneous, articulable observation concerning appearance, behavior, speech, or body odor, that leads the employer to determine that reasonable suspicion exists. An employee trained in accordance with the regulations must make the required observations and document any behaviors that require an employee to submit to a test.
Substance Abuse Professional
When an employee tests positive, refuses to test, or has some other violation of DOT agency or USCG regulations, the employer must immediately remove the employee from safety-sensitive functions and give the employee a list of qualified Substance Abuse Professionals (SAPs). This list must have SAPs who are suitable to you and readily available to the employee. Alternatively, you may provide the name and phone number of an SAP network that will offer qualified SAPs to the employee.
NOTE: When an applicant fails or refuses a pre-employment DOT test, you cannot let the applicant perform safety-sensitive duties for you, and you must provide a list of SAPs to the applicant.
Documentation is not required but it would be a good practice to obtain acknowledgement as receipt that the applicant/employee received the SAP referral information required by DOT regulations.
Refusal to Submit to a Drug and/or Alcohol Test
There are several DOT circumstances that constitute a refusal to test. In some situations, it may be required to report the refusal to the applicable agency. Documentation is key to ensure the required information is captured for reporting and recordkeeping purposes.
Orange Tree can help employers deploy fully compliant and robust DOT programs. For more information on how to get started today, contact one of our consultants today.