The drug tests you administer in your workplace will fall into two categories: those governed by the Department of Transportation (DOT), and everything else (Non-DOT). Before you launch a drug testing program at your workplace, you’ll need to know whether you are a DOT or non-DOT employer.
DOT governs drug testing for employers in the trucking, pipeline, aviation and rail industries as well as the Coast Guard and a handful of others. (Learn more in Drug and Alcohol Testing in the Motor Carrier Industry and Drug and Alcohol Testing in the Aviation Industry). Non-DOT employers include everyone else. If you are still unsure about which category you fall into, DOT has an online tool that can help.
The major difference between DOT and non-DOT employers is that while any employer can conduct drug tests on their employees, DOT employers have a legal obligation to conduct the testing. There are also strict regulations that govern DOT drug testing procedures, personnel and the consequences of positive tests. These regulations are commonly known as Part 40.
The DOT test is commonly referred to as a 5-panel test and covers marijuana (THC), cocaine, phencyclidine (PCP), amphetamines and a recently expanded list of opioids. DOT employers are free to test for additional drugs, but these tests must be conducted separately from the DOT tests. Non-DOT employers are, of course, free to choose as many panels as they wish, and many do choose to test for some of the more commonly abused prescription medications alongside other drugs not covered in the typical 5-panel test. Tests are commonly available from 4-panel test up to a comprehensive 12-panel test.
Types of Testing
Drug tests are conducted for a variety of reasons and again, there are tightly controlled regulations for DOT-covered employers:
25-50% of employees must be randomly tested depending on the specific agency that governs your workplace. Note that several agencies, including the Federal Transit Administration (FTA) and the United States Coast Guard (USCG) recently changed their rates from 25% - 50%.
Negative results must be received before the employee begins working in a safety-sensitive position.
This type of testing is very narrowly defined and generally applies to situations where the employee is cited.
This cannot be based on a hunch or guess but must be based on a supervisor’s observations of acute signs, such as behavior, speech or appearance. (Learn more in What Is Considered Reasonable Suspicion? A Look at the Criteria for With Cause Drug Testing in the Workplace).
DOT employees who fail drug tests must submit to a return-to-duty test prior to returning to a safety-sensitive position. They are also subject to random tests at least 6 times in their first year after returning to duty. The workplace Substance Abuse Professional (SAP) can dictate additional randomized testing.
DOT employees in safety-sensitive positions are subject to follow-up drug tests for up to five years following a positive drug test result at the discretion of the SAP.
Non-Dot Employer Testing
For Non-DOT employers, the rules are generally more flexible and are largely dictated by state and municipal laws, the Americans with Disabilities Act (ADA) and by your company policy. For example, reasonable suspicion can be based on both acute and progressive signs and patterns of drug use and new-hires can be tested anytime within their first 30 days of employment. What is critically important is that whatever you decide is applied to all your employees equally. Random tests, for example, must be truly random. You cannot target specific workers for random tests.
DOT drug tests are strictly urine tests. While DOT alcohol tests can be either breath or saliva tests, confirmation tests for alcohol consumption must be conducted with approved breathalyzers known as Evidential Breath Testing Devices. Non-DOT tests can involve different types of samples: saliva, hair, sweat, urine, and breath.
While non-DOT tests can be used for multiple purposes, DOT tests, by law, must be used for the specific purpose they were intended for. For example, while a non-DOT drug test could be used to test for DNA, a DOT drug test cannot.
Laboratories used for DOT drug testing must be certified by the Substance Abuse and Mental Health Services Administration (SAMHSA). DOT drug testing labs are not necessarily certified to conduct non-DOT drug tests. Non-DOT labs are certified by the College of American Pathologists and Clinical Laboratory Improvement Act. DOT drug tests also require an employee to have a Designated Employer Representative (DER) to receive results and make decisions regarding testing and the removal of employees from safety-sensitive positions. Substance Abuse Professionals (SAP) are also required to make decisions about education and return to work including retesting decisions. Non-DOT employers are not required to have either DERs or SAPs. Medical Review Officers (MROs) review all positive DOT tests and can request follow up medical information including prescription confirmation from the employee. MROs, while not federally mandated for non-DOT testing, are required by many states and are often a good idea for liability purposes.
Chain of Custody Forms
DOT drug tests require specific chain-of-custody forms (CCF) and Alcohol Testing Forms (ATF) that ensure proper handling of tests and track the progress of tests. Non-DOT tests are prohibited from using these forms, although you still must track chain of custody with non-DOT drug tests.
Positive Test Results
While it is up to the employer to decide how to deal with a positive non-DOT drug test, DOT covered employees with confirmed positive tests must be immediately removed from any safety-sensitive positions and a strict protocol regarding reinstatement and follow-up testing must be followed. It’s important to remember though that non-DOT employers should ensure they apply consequences fairly and consistently and in keeping with their established workplace drug testing policy.
Drug Testing Policies
Although non-DOT employers have a lot of leeway when it comes to their drug testing programs, they also lack the inherent protections offered by the stricter DOT regulations. This means that non-DOT employers should establish clear and comprehensive policies around their drug testing programs that cover all aspects from drug education to the consequences of a positive drug test. It’s also critical that these policies are written with all applicable federal, state and local laws top of mind.
If your company has both DOT and non-DOT covered employees or if you opt to test for drugs or alcohol over and above what DOT requires here is what you need to know:
- DOT and non-DOT tests must be conducted separately in all respects
- DOT tests always take precedence and must be completed before non-DOT tests
- Remnants of DOT tests may not be used in non-DOT tests; new samples must be taken
- DOT tests provide the final word regardless of the result of a subsequent non-DOT test