![[Dividing Line Image]](div.gif){kind=small}
US DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration (FMCSA)
DRUG TESTING PROCEDURES
DOT/FMCSA PRE-EMPLOYMENT TESTING PROCEDURES
Department of Transportation (DOT) and The Federal Motor Carrier Safety Administration (FMCSA) regulations call for Pre-employment testing. A driver must have a negative drug test result before they can be DOT qualified.
In the very first enforcement penalty assessed by DOT in the area of drug testing, a motor carrier in Idaho was fined $15,000. The fine was for allowing a driver to drive without first having a negative drug test result and allowing a driver to drive with a positive drug test result. The driver submitted a specimen for a pre-employment drug test and was dispatched. When the result came in, it was positive. Before the driver could be relieved from duty he was involved in a DOT reportable accident. The investigation of this accident resulted in the fine.
A pre-employment test is different from all other DOT drug tests. This test is not conducted on an employee. All employees are subject to employment conditions as defined by company policies. An applicant is not an employee and therefore, is not subject to your company policies.
The only way an applicant can be tested is to have their permission. You must also obtain permission to receive their result. The only acceptable way to do this is to have permission in writing from the tested individual prior to the test. This document is commonly called a Pre-employment consent form.
A Pre-employment consent form should include permission to test the individual and permission to receive their result from the Medical Review Officer. In addition, you may wish to consider including the text of your company's policy regarding applicants who have a positive drug test result.
Applicants should be allowed to review the pre-employment consent form and ask questions regarding the testing procedures and requirements. Any questions that arise should be answered before a test is conducted. This is to assure that the individual is granting what is known as "willing permission".
A Pre-employment consent form must be signed or an employer may be positioned for accusations of right to privacy violations.
DOT/FMCSA RANDOM TESTING PROCEDURES
The issue of random drug testing procedures has caused a good deal of confusion. Employers want to know how to do a true random test when an employee is on the road and away from company offices and collection sites for extended periods of time.
DOT-FMCSA says, if a group is selected for random testing, the tests must be conducted before the next random group is selected. What makes the test truly random is the fact that the employee does not know they have been selected until they are required to submit a specimen.
For example, an employer chooses to make random selections monthly. At the beginning of the month an appropriate number of selections are made. The number of selections made should include "back-up" selections in case a selected employee quits before submitting or is otherwise legitimately unavailable.
As few people as possible should know who has been selected. At any time during the month when a selected employee arrives at a company location they can be told that they must submit for a random drug test. Once the employee is notified, DOT says they have "a reasonable time" to submit. This has been interpreted by Dr. Donna Smith of US-DOT as two to four hours. There are allowances for extenuating circumstances.
Suppose there is not time to hold the employee for a drug test submission or they have arrived at the company location after the collection site is closed?
They do not have to be tested the first time they appear at a company site. Do not tell them they have been selected, just be sure that they are tested before the next group selection.
"BACKUP" SELECTIONS
How are "back-up" selections used?
There will be cases where an employee is not available for testing, for example, an employee leaves the company before they have submitted or an employee is on extended leave, perhaps a workers compensation leave. Be sure there is sound reason for not testing a selected employee. Do not allow the possibility for an accusation of favoritism or discrimination. Document the reason for not testing the employee. Then test the next employee on the list.
What if an employee refuses to be tested or makes themselves "scarce"?
DOT is very clear on this issue. 49 CFR §391.95 (d) A person who refuses to be tested under provisions of this subpart shall not be permitted to operate a commercial motor vehicle. Such refusal shall be treated as a positive test and subject the driver to the restrictions contained in paragraph (c) of this section.
The fact that a person is making themselves "scarce" is sometimes hard to prove and may not exactly be refusing to test. This certainly would constitute behavior leading to a reasonable cause drug test when they do "appear".
"HOLDING" AFTER A RANDOM TEST
Should employees be held from service after a random test?
Regulations do not require that an employee be held, pending a result on a random test. This, however is an issue that has caused concern for many employers.
If the tested employee has a negative result, holding them can cause undue delay and increased operations expense.
If the tested employee knows that they are going to have a positive result and they are not held from service, they have an unsupervised period of time from submission to confirmed result with the employers vehicle and perhaps, valuable cargo. Though not a regulatory requirement, this security issue is certainly one that every employer should consider.
MAKING THE SELECTIONS
How should random selections be made?
DOT has recommended that selections be made by computer, via a random number generator. Drawing names from a hat is not random. For example, If there are twenty names in the hat, the first person had a one in twenty chance of being selected, the second person had only a one in nineteen chance of being selected. This is not considered fair and equal treatment.
An ideal method off selection for random tests is to provide a computer diskette to your MRO and let the selections be made "out of house". However you choose to make random selections, be sure you can not be accused of discriminating against or favoring any employee or group of employees.
DOT/FMCSA POST-ACCIDENT TESTING PROCEDURES
Three conditions should be considered to determine if a post accident test is required:
1. Is this accident DOT reportable? Is the answer yes to any of the following?
a. Is there any vehicle which cannot leave under its own power?
b. Did anyone require medical treatment away from the scene?
c. Has a fatality has occurred?
2. Did your driver receive a citation for a moving violation resulting from the accident?
3. If the answer to both questions above is yes, a post accident test is required within 32 hours of the time the accident occurred. If the answer to one of the questions above is no, consider whether or not a test is required by company policy, perhaps as a reasonable cause test.
There is a 32 hour "window" allowed in the regulations. By waiting to find a collection site during normal business hours, the collection will cost less and the collector will be more familiar with SAMHSA collection procedures.
Employers are experiencing problems when a specimen can not be tested because of improper collection procedures or chain of custody errors. By the time this problem is known, the 32 hour "window" has passed and a valid post accident test cannot be performed. In most of these cases, an inexperienced person "did their best" in the middle of the night. By waiting until normal business hours, the percentage of collection site errors is much lower due to the availability of experienced collectors.
At the beginning of the DOT drug testing program there was some confusion about drivers being responsible for the post-accident test. Since then there has been clarification. DOT's intention is to require the driver to cooperate in the testing process.
DOT realized that in many situations drivers will be away from carrier locations and beyond the carriers control. The interpretation makes non-cooperation by the driver a violation of DOT regulations. DOT still holds the motor carrier ultimately responsible for compliance with the regulations.
DOT/FMCSA REASONABLE CAUSE TESTING PROCEDURES
Reasonable cause drug testing is one of the most valuable aids that a personnel department can have if it is properly used. There are very few reasonable cause drug tests being conducted. Perhaps too few.
Many managers are afraid of drug and alcohol testing. It is natural to try to avoid the issue. Managers also have a responsibility to the company and other employees to remove those persons from the workplace who are suspected of being impaired.
When a manager accuses an employee of being under the influence of illegal drugs or alcohol, they are subjecting themselves to accusations of unfairness. Most managers are not professionally trained to diagnose drug or alcohol impairment. By the time upper management looks into the issue the employee no longer appears impaired. As a result, the entire matter is one of differing stories and the only result is bad feelings on all sides.
Being impaired does not always mean using illegal drugs or alcohol. Individuals can be impaired by common prescription pain medications or muscle relaxants. While this is not illegal use, company policy should address the legitimate use of potentially impairing drugs in the workplace.
A company policy should serve the company, its managers and its employees. The company policy should clearly define when a person will be required to submit for a reasonable cause drug or alcohol test. In addition, the procedures that will be followed, the consequences of refusing to submit and the consequences of a positive result should be clearly defined.
There are many other factors to consider when deciding if an employee is impaired. Is it possible that this employee is diabetic, perhaps undiagnosed? Does this employee have domestic or financial problems that are causing tremendous stress? Many of these types of problems will cause behavior that could be misunderstood as drug or alcohol impairment.
Because of the reasons outlined above, no accusation of impairment should ever be made. The employee is observed (preferably by two managers) and in private they are told, as a result of these observations it is believed that there may be a problem that effects their ability to do their job. In cases like this, company policy requires you to send an employee for a reasonable cause drug and alcohol test and allow a doctor to examine them.
The issue being discussed is the safety of the employee and their coworkers, not the tests or exam. Often employees will try to change the issue. Your company policy should include the fact that refusing to be tested has the same consequence as a positive result. Be sure to have the managers who witness the behavior document the facts leading to the decision to have the employee tested. DOCUMENT ONLY THE FACTS!!! NEVER DIAGNOSE ANY PHYSICAL CONDITION!!!
Once the decision has been made to confront the employee never allow the option of "talking you out of it". If you are not willing to take whatever action your company policy and FMCSA requires then do not confront them. You are leaving yourself open for accusations of discrimination if one employee can "talk you out of it" and another does not. Do not be lulled into thinking that employees never talk about such things.
FMCSA requires that when a covered employee refuses to be reasonable cause tested, as with any type of FMCSA drug test, they are to be treated the same as if they had a positive result. This means as of the time they refuse they are medically unqualified to drive. MedReview’s advise is when making a decision to do a reasonable cause test be certain you are willing to enforce the regulations as well as your company policy is the employee refuses to be tested.
The following text is from DOT’s regulations regarding the use of legitimate prescription drugs.
Part 391.37 (12) ...except that a driver may use such a substance or drug if the substance or drug is prescribed by a licensed medical practitioner who is familiar with the driver's medical history and assigned duties and who has advised the driver that the prescribed substance or drug will not adversely affect the driver's ability to safely operate a motor vehicle,...
Please note that the doctor must advise, a drug will not impair. No response from the doctor means the employee can not be on duty. The doctor must tell the employee specifically, the prescribed substance or drug will not adversely affect the driver's ability to safely operate a motor vehicle. MedReview’s advise is to always get this release in writing.
A client told of a driver who left a terminal to deliver a load. Two hours later, he returned to the terminal, with the load. He got out of the truck and walked towards the building. He then abruptly turned and returned to the truck. This was repeated several times in front of witnesses. The driver refused to allow any one near him. This driver was sent for an examination and a reasonable cause test. The diagnosis, the man was having a stroke! His drug test result was negative.
A good and thorough policy should require an employee to be suspended from duty pending the result of a reasonable cause test. This "cooling off time" may be what the employee needed even if the test is negative. In the case described above, sending this individual for an exam and test undoubtedly saved this employee’s life.
DOT/FMCSA RETURN TO DUTY TESTING PROCEDURES
Return to duty testing under DOT consists of only one test, one time. This is the test a donor takes on return from treatment and release by the Substance Abuse Professional (SAP).
All return to duty tests should be observed collections. Because of the history of a prior positive test there is a presumption that the donor my try to submit a bogus or adulterated specimen. In order to be qualified to return to duty this test must be negative.
It is recommended that a letter of understanding be signed by the donor and the company official regarding the return to duty test and follow up tests and the consequences of a positive test under these conditions.
DOT/FMCSA FOLLOW UP TESTING PROCEDURES
Under DOT regulations a donor who has had a positive test, is released by the SAP and has a negative result on their return to duty test is subject to follow up testing.
Follow up testing is a regimen of unannounced testing for up to sixty months during which a donor may be required to give a specimen at any time without cause or notice.
Follow up testing must include at least six tests in the first twelve months of the testing regimen. Any employment decisions regarding a positive follow up test or a refusal to be tested should be clearly spelled out in the letter of understanding.
DOT/FMCSA BLIND PROFICIENCY TESTING PROCEDURES
Many employers are not aware of the requirement for proficiency testing. Under FMCSA regulations, employers with over 2000 driver positions must submit blind proficiency samples at a rate of 3% of actual samples.
A proficiency test is a specimen of known value submitted to test the laboratory's accuracy. A comparison is made between the known value and the laboratory result.
Because a proficiency test is not a "real" test your MRO needs to be consulted when proficiency specimens are submitted. First, there is no tested individual for the MRO to contact in the case of a positive laboratory result. Second, it is the laboratory result, not the MRO result that needs to be compared to the known value.
Proficiency specimens should be documented. Any differences between the known values and laboratory results should be reported immediately. In a DOT audit you may be asked to show an inspector the documentation on your proficiency testing.
The regulations require that 20% of all proficiency specimens be "spiked positives" and that the drug positive be for all of the SAMHSA five drugs in equal numbers.
Your MRO should handle proficiency testing for your company. The MRO should track the number of actual tests conducted and submit the required number of proficiency specimens in your behalf.
You should have documentation in your files documenting your proficiency testing in the event of a DOT audit.