Can an employer act as a Designated Employer Representative (DER) under DOT regulations?
A Designated Employer Representative (DER) has assigned duties within the Department of Transportation (DOT)'s drug testing and alcohol testing program. They also have the authority to decide when an employee in a safety-sensitive position within a DOT regulated industry should be removed from duty.
49 CFR part 40 covers a full description of the procedures involved in DOT's drug and alcohol testing program. DER requirements are outlined in these guidelines, including expectations around contacting the employee who is undergoing drug testing and what to do if the employee is unable to be contacted.
An employee, or more than one employee, may be assigned as a DER. The DER is often an employee who is part of human resources or a member of the workplace safety department. The employer or business owner is also permitted act as the DER. The DER role cannot be delegated to a service agent outside of the business. The employer may choose to hire a safety consultant to carry out aspects of, or provide support for, the company's drug and alcohol testing program. However, the safety consultant is prohibited from acting as a DER, under any circumstances. They are not an employee of the company and therefore their role cannot extend to that of a DER.
As discussed, the DER must be assigned from within the company. Although a third party administrator (TPA) such as a service consultant cannot act as a DER, a DER may be able to carry out some of the roles of a TPA. Additional information can be found in What to consider when deciding whether you need a TPA or a DER.
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