There are so many compliance issues employers must be cognizant of in the 21st century. The type of business, product, or service employers provide will determine which federal compliance is relevant to the company’s responsibility.
In the early 1990’s, Congress passed the Omnibus Transportation Employees Testing Act of 1991 after finding that alcohol abuse and illegal drug use posed significant dangers to the safety and welfare of the nation’s citizens since they depend heavily on the various forms of transportation. Employers must make the greatest effort to eliminate the use of drugs and alcohol by its vehicle operators.
The mandates of the Department of Transportation are by no means short and simple. They require an employer’s continual due diligence to not only implement the policies but also manage them in a responsible and compliant program. This program is detailed and well defined as well as enforced by this federal regulation.
It is important to determine if your company falls under the Department of Labor (DOT) Drug Testing Requirements
To assist you in determining your company’s liability, a brief questionnaire can be accessed on line at DOT Am I covered? In general, if your company is part of the transportation industry and employs individuals in safety sensitive positions, you are required by law to participate in a DOT Drug Testing Program even if the driver is self-employed.
Some examples of safety sensitive positions are pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire‐armed security personnel, ship captains, pipeline emergency response personnel, and many others of similar responsibilities among the following industries:
- Federal Motor Carrier Safety Administration (FMCSA).
- Federal Aviation Administration (FAA) - Air Carriers or operators and certain contract air traffic control towers.
- Federal Railroad Administration (FRA).
- Federal Transit Administration (FTA) - Public Transportation.
- Pipeline and Hazardous Materials Safety Administration (PHMSA) - Operators of pipeline facilities and contractors performing covered functions for the operator.
- US Coast Guard (USCG) [Department of Homeland Security] Maritime.
It is important to read and understand the regulations for your specific industry.
Now that you have determined if your company qualifies for the DOT federal compliance, the next step is to have a written policy related to your specific industry. (Learn more in "DOT vs. Non DOT Testing: What's the Difference?")
A written Policy is required of Employers fully explaining the company’s drug and alcohol program
Most of the regulations are similar, but each transportation industry listed above has their own mandatory requirements for compliance with the DOT regulations. They may vary slightly from each other but, in general, they all require the written plan to include the name of the DOT program’s designated employer representative (DER) and their contact information; a clear definition of which category of employee is subject to the DOT rules; which drugs and substances are prohibited; what circumstances an employee will be tested; drug and alcohol testing procedures; the employees’ obligations to submit to testing and the violation of employee refusing such testing; consequences of positive drug and/or alcohol test.
|Free Download: What Your Company's Drug and Alcohol Policy May Be Missing (and How to Get It Right)|
The amount of mandatory information required in the employer written policy is quite extensive making it imperative to accurately communicate all the information required by the Department of Transportation.
A Designated Employer Representative (DER) must be appointed by the employer requiring the DER responsible for the drug and alcohol program functions
It makes sense to have one employee designated to manage and stay current with the company’s federally required obligations. The Designated Employer Representative (DER) protects the company’s liability by avoiding confusion, mistakes, oversights and potential penalties for noncompliance. The DER is the key employee to coordinate the many drug and alcohol program functions and cannot be assigned to contractors or service agents.
In the situation where an employee tests positive, the DER is the contact person who will receive the results from the Medical Review Officer (MRO) and the Breath Alcohol Technician (BAT). Once notified of the positive results or if the employee has refused to be tested, the DER takes immediate action to remove the employee from their safety-sensitive duties. In order to be effective and efficient in this position, the DER has the knowledge and authority to make decisions and answer questions about the program to the employees. It is imperative that the employee is removed from a safety-sensitive position at the appropriate time.
Employers have three options in deciding how to administer the DOT program in the organization
1. Internal administration of the program by members of the staff. This would include urine specimen collection and administering the program internally. You would have on your own staff urine specimen collectors and also included in staff functions would be a certified Screening Test Technicians (STTs) / BATs, MROs, and Substance Abuse Professionals (SAPs) and support staff to run the program. The only function of the program that must remain outside the employer’s responsibility is the testing laboratory
2. Employers may outsource some of the program functions to service agents. For example employers have their support staff run the program but use an outside urine specimen collector and blood alcohol technician (BAT)
3. Employers can opt to outsource all of the program’s functions to a third party vendor, called a consortium (C/TPA), while fulfilling the employer obligation of maintaining the in-house DER and the DER’s support staff
You must provide employee and supervisor education training
Since employers rely on their supervisors to observe, identify, and determine reasonable suspicion of when an employee may be under the influence of drugs or alcohol at work, it is the employer’s responsibility to provide training for supervisors for this most critical portion of the program.
The training must include physical, behavioral, speech and performance indicators since under the definition of reasonable suspicion, the supervisor is required to send the observed employee for testing.
The training consists of one hour for each for the drug and the alcohol training.
The employer’s policies, which are directed by the DOT requirements, should be distributed in written form to all employees who perform DOT safety-sensitive functions. (Learn more in "The Importance of a Good Drug and Alcohol Policy in the Workplace".) Since it must be documented that employees received the materials, it is good practice to distribute the policy along with a signature form that each employee signs and dates upon receipt. This form is then kept in their personnel file and another copy in the DOT program file.
In order to prevent delays, misinterpretations, and confusion, the written document must include the name and contact information of the DER and other persons assigned to answer questions about the program and a clear explanation of the duties and obligation of all employees who are subject to the program is vital in full cooperation of all concerned. Employees must be fully aware of conduct prohibited by the regulations and the mandatory requirement that employees must be immediately tested for drugs and alcohol under specific circumstances. There are specific testing procedures that might seem strange to a layperson so clarifying these procedures ahead of time is imperative. The employee must also be informed of the repercussions if an employee refuses a test and what constitutes a refusal to test. There are consequences of violating the DOT rules so when and if it happens, the employee had been forewarned. Communicating and educating the affects of drugs and alcohol on a person’s health, work performance and personal life is also required but can be considered service as well to the well-being of every employee.
Specific drug and alcohol testing requirements are detailed
The DOT clearly documents the specific reasons for drug testing: Pre-employment, Random, Reasonable Suspicion / Reasonable Cause, Post-Accident, and Return-to-Duty Follow-up
Various drug free workplace programs use blood, hair, saliva, or urine but the DOT tests only use urine specimens collected only by specific authorized laboratories that are certified by the U.S. Department of Health & Human Services (HHS) that follow certain procedures. (Learn more in "Oral Fluid, Urine, and Hair Testing: What's the Difference?") No instant tests are permitted. Alcohol screening is conducted using breath or saliva. An Evidential Breath Testing Devices (EBT) is used to administer the breath test by a certified technician.
There are some variations in the some of the transportation industries such as The Federal Railroad Administration (FRA) has an additional requirement of blood specimens for post-accident testing. The USCG (US Coast Guard) requires blood specimens for serious marine incident testing (SMI). It is imperative every employer has done their research to assure they are compliant with their industry requirements.
One may hear the terms 5 panel or 7 panel. (Learn more in "Drug Test Types: 5, 7, and 12 Panel Urine Screening Differences and Reasons to Use".) This is refers to the number of drugs that are tested for with specific tests. The DOT requires the standard 7 panel test for drug metabolites testing. This includes Marijuana (THC), Cocaine, Phencyclidine (PCP), amphetamines, methamphetamine, methylenedioxy methamphetamine (MDMA), and opiates (codeine, morphine and heroin). No other drugs can be tested for with this DOT standard. (Learn more in "Drug Abbreviations Used in Drug TestingDrug Abbreviations Used in Drug Testing".)
What happens when employees violate the rules
Once the specimen has been tested in a certified lab for confirmation, the next mandatory step is for a Medical Review Officer (MRO), who receives the results from the lab. to contact the company DER with the results of the test. If a positive test has been verified, the employee must immediately be removed from their safety-sensitive functions. A list of qualified Substance Abuse Professionals (SAP) must be provided to the employee for evaluation and consultation. The SAPs on the list must be suitable and readily available to the employee.
The DOT does not set a standard for disciplinary action. This is entirely up to the employer and must accurately documented in the written policy statement distributed to all employees. The DOT does emphasize that no one can perform a safety-sensitive position after a positive test result until released by the Substance Abuse Professional who has been treating the employee. It is not sufficient to merely have a negative test result at a return to work follow-up to be released to work a safety sensitive position. The required treatment involves a face-to-face clinical assessment and evaluation, a referral if necessary for education or treatment or both, and a follow-up face to face evaluation to determine return to work status.
Medical marijuana issues
More and more states are passing legislature legalizing medical marijuana. Even though it may be legal in the employer’s state, “The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize medical marijuana under a state law to be a valid medical explanation for a transportation employee’s positive drug test result." (Learn more in "Medical Marijuana Law Differences and Contradictions".) If a signed and written policy is already on file, an addendum with this ruling must be added to the written policy utilizing the same procedure requiring employees to sign a written acknowledgement of the rule. It is the employer’s obligation to keep their employees up to date with any changes that occur that would jeopardize the compliance of the DOT regulations. (Learn more in "Medical Marijuana Use and Concerns in the Workplace".)
Safety should always be first on the agenda for all employers. It not only protects employees from harm but it is also a way of expressing the company’s concern for its employees and their well-being. There are no shortcuts when it comes to safety. Shortcuts can lead to accidents which, in turn, can lead to injuries to people and destruction of equipment and investments.