Policy Issues and Considerations For Drug and Alcohol Testing Programs Drug Testing Issues

Issue:  DOT now requires MROs to advise donors who will be reported positive that they have 72 hours to request a drug specific retest of their specimen with no cutoff levels  at another DHHS certified laboratory.  

Consideration:  Employers will be billed for retrieving the specimen from the freezer, packaging, shipping and testing of the specimen.  Consider policy wording that states the retest will be performed in a DHHS certified laboratory of the company’s choosing to limit redundant vendor relationships.  Ask you MRO who to use.  The MRO may have been advised by you regular lab whom they work with the best.

Issue:  The retest will cost from $100.00 to $130.00.  

Consideration:  Be sure your policy states and your MRO understands that a positive donor is required to notify the employer to request a retest and the employer shall notify the MRO.  This keeps the employer on control of the account and when the bill comes the employer knows exactly why they are being billed.  

Issue:  A donor requesting a retest is medically unqualified to perform a safety sensitive function.  Who should pay for a retest and how is it handled?   

Consideration:  Many companies are requiring positive donors to put up cash in advance to order the retest.  If the retest result is different from the original, the test is canceled and the donor is treated as if the test never happened.  If the retest result is the same as the original test result, the employer keeps the donors money, refers them to an SAP and follows the company policy regarding the donors employment status.  

Alcohol Testing Issues and Considerations

  Issue:  Handling of donors who test between 0.02% BAC and 0.039% BAC verses donors who test >0.039.  

Consideration:  DOT has different ways to handle these two categories of positive donors.  Employers may wish to consider some disciplinary action other than dismissal for positive donors below 0.04% BAC rather that the most common consideration which is if you are positive you are fired.    

Issue:  Compliance with 382.413.  The following is the text of Part 382.413.   § 382.413 ‑‑ Release of alcohol and controlled substances test information by previous employers.  

   (a) An employer may obtain, pursuant to a driver's written consent, any of the information concerning the driver which is maintained under this part by the driver's previous employers.  

   (b) An employer shall obtain, pursuant to a driver's consent, information on the driver's alcohol tests with a concentration result of 0.04 or greater, positive controlled substances test results, and refusals to be tested, within the preceding two years, which are maintained by the driver's previous employers under § 382.401(b)(1)(i) through (iii).

   (c) The information in paragraph (b) of this section must be obtained and reviewed by the employer no later than 14 calendar days after the first time a driver performs safety‑sensitive functions for an employer, if it is not feasible to obtain the information prior to the driver performing safety‑sensitive functions. An employer may not permit a driver to perform safety‑sensitive functions after 14 days without obtaining the information.  

   (d) If the driver stops performing safety‑sensitive functions for the employer before expiration of the 14 day period or before the employer has obtained the information in paragraph (b) of this section, the employer must still obtain the information.  

   (e) The prospective employer must provide to each of the driver's employers within the two preceding years the driver's specific, written authorization for release of the information in paragraph (b).  

   (f) The release of any information under this part may take the form of personal interviews, telephone interviews, letters, or any other method of obtaining information that ensures confidentiality. Each employer must maintain a written, confidential record with respect to each past employer contacted.  

   (g) An employer may not use a driver to perform safety‑sensitive functions if the employer obtains information on the driver's alcohol test with a concentration of 0.04 or greater, verified positive controlled substances test result, or refusal to be tested, by the driver, without obtaining information on a subsequent substance abuse professional evaluation and/or determination under § 382.401(c)(4) and compliance with § 382.309.  

Consideration:   Be sure that company policy prohibits the hiring of applicants who refuse to sign an employer specific consent form for each employer during the previous two years.  J. J. Keller has forms that can be used for this purpose.  

Issue:  Blood alcohol testing.  

Consideration:  We are advising companies to retain the right, by policy, to do a blood alcohol test in a post accident situation when a breath test cannot be performed.  A blood alcohol test will not comply with DOT but in a litigation it makes the company look responsible and the driver more credible  

SAMPLE DRUG AND ALCOHOL TESTING POLICY

       

 

NOTE: Any policy implemented by your company should be reviewed by your attorney.  This sample policy is for reference purposes only and is not intended to be taken in the context of legal advice.

 

Introduction:

One of the most important responsibilities of management to employees, their families and the community is to provide a safe and healthy working environment. Company name management believes that one very important factor that can contribute to the achievement of this goal is to have a drug and alcohol-free workplace.  Consistent with this objective, the Drug Free Workplace Act of 1988 and Title 49 CFR Part 382, the Company has adopted the following Substance Abuse Policy.  The enforce­ment of this policy is subject, where applicable, to federal, state and local laws.

Statement of Policy

1.       The Company will not hire individuals who test positive for prohibited drugs or alcohol.

2.          Employees will not be allowed to work while under the influence of alcohol or with prohibited drugs in their system.

3.          Employees may not use, possess, sell, manufacture or distribute alcohol or prohibited drugs while performing company business or on company premises.  Exceptions to this rule regarding alcohol may be made for certain Company sponsored social functions only if previously authorized by the President of the Company or his designee.

4.       The Company reserves the right to inspect Company property at any time and for any reason, whether locked or otherwise, and to inspect personal property while located on company premises or at any site were employees may be sent on company business. Company property includes, but is not limited to, Company-owned or leased vehicles, lockers, desks, closets, cabinets, containers, etc.  Any illegal substance found will be turned over to the appropriate law enforcement agency.

5.          Employees who are convicted of a drug or alcohol related offense will be considered in violation of this Policy.  In addition, employees  who are convicted of a drug or alcohol related offense occurring in the workplace must report such conviction to their appropriate Human Resources Department within five (5) days of the conviction.

6.          Employees utilizing prescription or over-the-counter drugs which carry any precautions regarding side effects which might impair their concentration or affect their job performance in any way are required to report this fact to their supervisor.

7.          Individuals found to be in violation of any portion of this policy will be subject to disciplinary action up to and including possible termination of employment even for a first offense.

TESTING FOR ALCOHOL AND/OR PROHIBITED DRUGS

1.      Final candidate for hire will be tested for prohibited drugs and alcohol.

2.      Employees working in "safety critical jobs" will be required to undergo periodic testing for prohibited drugs. Such testing is a prerequisite to continued employment in a safety critical job.

3.      Employees returning from a leave of absence equal to or greater than Thirty days, which has been taken for any reason, will be tested for prohibited drugs and/or alcohol.

4.      Employees may be required to undergo testing for alcohol and/or prohibited drugs in a random selection program or whenever management has reasonable cause to believe that they are unable to perform their job duties in a safe and efficient manner due to the use of alcohol or prohibited drugs.  In such situations, employees will be transported to a medical facility for evaluation by trained medical personnel to substantiate the reasonable cause prior to testing.

5.      Employees may be required to undergo testing for alcohol and/or prohibited drugs whenever there is reason to believe they have caused a work-related accident resulting in personal injury or property damage or an accident that is DOT reportable.

6.      Employees returning to the workplace following completion of a drug or alcohol rehabilitation program will be required to participate in follow up testing program and will be tested periodically for prohibited drugs and/or alcohol for a period of five years (60 months) following their return to work.  This follow up testing program will include at least six tests for prohibited drugs and/or alcohol during the first year (twelve months).  Any such employee refusing to participate in an after-care testing program or testing positive in this situation will be terminated.

7.      Employees or candidates for hire who have been subjected to drug screening tests may request to have the split of the original sample retested at their own expense by a DHHS laboratory approved by the company.

8.      Identity of individuals tested for alcohol and/or prohibited drugs as well as all test results (both positive and negative) will be treated as confidential information and will be maintained by the Human Resources Department in files separate and apart from personnel files.

9.      Any applicant testing positive may reapply and be considered for employment after evaluation by a Substance Abuse Professional (SAP) and satisfactory completion of a regimen of treatment prescribed by the SAP at their own expense.  Upon employment, the applicant will agree in writing to submit to unannounced testing during the five years (60 months) following their hire date.

SUBSTANCE ABUSE REFERRAL PROGRAM

The Company maintains a substance abuse referral program which provides help for employees who have substance abuse problems.

A Drug and Alcohol Rehabilitation Program is instrumental in obtaining the goal of a "drug and alcohol-free" workplace.

1.  Employees may make a self-referral for treatment of and rehabilitation from drug and/or alcohol abuse by contacting the Substance Abuse Program representative, Human Resources Department or their immediate supervisor or department management.

2.  An employee's decision to voluntarily seek assistance from the Substance Abuse Program or a rehabilitation program independent of any other violation of this Policy will not in and of itself constitute a violation of this Policy.

3.  Employees who test positive for alcohol or prohibited drugs may be referred to the Substance Abuse Program by the Company for participation in a rehabilitation program if their violation of this Policy does not result in a termination of employment.

4.  Employees participating in an inpatient substance abuse program of rehabilitation will be required to enter the program as soon as practical as determined by Company management.  Employees treated on an outpatient basis will be expected to perform the regular duties of their job except as modified by Company management for safety and/or regulatory considerations.

 

5.  Return to work and/or possible reassignment will be dependent upon the employee's ability to safely resume normal or modified job duties as determined by the Substance Abuse Program manager and Company management.

COMPLIANCE & CONSENT

  Compliance with the terms of this Policy and written consent to undergo testing as described herein are conditions of employment with the Company.  Any employee or applicant may refuse to undergo drug and/or alcohol testing but such refusal is grounds for termination of employment or denial of employment. Similarly, other conditions of employment include,

 

1.  Consent to inspection of Company property and personal property located on Company premises or in company owned vehicles.

 

2.  Consent to be driven to a medical facility of the company's choice if company management has reasonable cause to believe the employee may be under the influence of alcohol or prohibited drugs.

 

3.  Completion of required forms for drug and/or alcohol testing and medication history prior to testing.

 

4.  Consent to participate in and complete a prescribed program of alcohol and/or drug rehabilitation if referred by the company to the Substance Abuse Program.

 

5.  Successful completion of any aftercare program recommended by the Substance Abuse Program manager following completion of a rehabilitation program.  Failure to comply with the terms and conditions of these policies can result in disciplinary action up to and including termination of employment, even for a first offense.

LAB SELECTION AND ALCOHOL TESTING PROCEDURES

1.  All drug and alcohol testing will be conducted by a Department of Health and Human Services (DHHS) approved laboratory with extensive experience in performing such tests.  The laboratory will follow established chain-of-custody procedures and be able to substantiate its results in a court of law.

2.  A two-step procedure will be used to test urine samples for prohibited drugs.  The initial screening test will utilize the enzyme-immunoassay (EMIT) method.  If the results of the first test are positive, a second test will be performed on the original sample for confirmation of the analysis.  The confirmatory test will be performed using the gas chromatography/mass spectrometry (GC/MS) instrumentation.  

3.  Alcohol testing will be performed using an evidential breath testing device approved by the National Highway Safety Administration (NHTSA) and placed on the “Conforming Products List of Evidential Breath Testing Devices”.  During unusual and emergency situations the company reserves the right to test blood using the gas chromatography technique.

COMMUNICATION / NOTIFICATION / EDUCATION  

1.  Notices will be posted in normal posting places advising all applicants and employees of the Company's Policy to provide a drug and alcohol-free workplace.  

2.  Application`` forms will contain a statement regarding compliance with this policy as a condition of employment and will inform all applicants of the requirement to take and pass a drug test.  

3.  All newly-hired and current employees will be issued a copy of the Company's policy.  A signed statement indicating receipt of this policy shall be maintained as part of employee personnel files.  

4.  Information such as pamphlets, video presentations and speakers will be provided periodically in an effort to inform employees about the problem of drug and alcohol abuse and the resources available for assistance.  

DEFINITIONS

"Under the Influence"  

When drug test results from the GC/MS analysis meet or exceed the defined cutoff levels in terms of nanograms per milliliter (ng/ml) of the metabolites detected in the urine or when breath or blood alcohol content meets or exceeds one-tenth of one percent (grams per deciliter).    

"Prohibited Drugs"  

Controlled substances including but not limited to: marijuana, cocaine, PCP, amphetamines, opiates or alcohol in excess of 0.02 ml. per 27 liters of breath.  Also prescription or over the counter drugs which have not been specifically prescribed by a licensed physician or are not being used for the purpose in the manner directed.  

"Negative Test Results"  

Any test result which is less than the cutoff level specified for the EMIT test or any test result which is greater than the level specified for the EMIT test but less than the level specified for the GC/MS test or a blood/alcohol level less than one-tenth of one percent.  

"Reasonable Cause"

When behavior indicates that there is reasonable cause to believe that the employee may be under the influence of alcohol or prohibited drugs in situations such as but not limited to:  

                      a) a change in temperament, speech, physical condition, energy or normal appearance;  

                      b) an increase in errors of judgment resulting in noticeable decrease in quality or quantity of work;  

                      c an increase in absenteeism;  

                      d) a failure to adhere to company policies or established procedures;  

                      e) an on-the-job accident resulting in injury or property damage.  

"Positive Test Result”  

Any test result which meets or exceeds the cutoff levels for the urine, blood or alcohol test in both the initial screening test and the confirmatory test.  

“Random Selection Program”  

A computer generated group of employees selected from a pool or all employees subject to random testing. Random selections will be made periodically throughout the year.  

"Safety Sensitive Positions"  

Job classifications in which the performance of normal duties by an employee who is under the influence of alcohol of prohibited drugs could result in serious injury to the employee, other employees and/or major damage to equipment or facilities.  Any position deemed “safety sensitive” by a regulatory agency having jurisdiction over any of the companies operations will be deemed “safety sensitive by the company.   These job classifications will be designed by and be changed at the discretion of company management; however, a current list will be posted for general information at each facility.  

"After-care Program"  

A program of outpatient follow-up care and counseling to be designed by the Substance Abuse Program manager for any employee who completes a program of prohibited drug and/or alcohol rehabilitation.