Designated Employer Representatives (DERs) and Third-Party Administrators (TPAs) can both be critical to the success of your workplace drug testing program, but they perform very different functions. TPAs can be utilized to manage your program and advise you on regulations and requirements while DERs manage and represent your company interests within the drug testing program. It is important to note that while the DER can perform some of the functions of the TPA, the TPA cannot act as the DER. (Learn more in 8 Things Employers Should Know About DOT Drug And Alcohol Testing).
Is it necessary to have both?
DER and TPAs are requirements for Department of Transportation (DOT) covered employers, but having a designated person to manage your drug and alcohol testing programs is critical for any business. The DER does this, but it can be a time-consuming position, particularly in large companies. This is where the TPA can help. The TPA, often a hired service, provides a single point of contact for drug testing and deals directly with clinics, laboratories and medical review officers on behalf of the DER.
Both of these roles are defined within the Department of Transportation’s (DOT) rule, 49 CFR Part 40 and these role definitions along with the limitations attached to them also provide some good guidelines for non-DOT regulated employers.
Designated Employer Representative (DER)
The DER administers the drug testing process for the employer. It is a job that cannot be outsourced as DOT rules dictate that the DER must be an employee. In other words, you cannot appoint a service agent to perform the tasks of the DER for your company. DERs can be members of the company executive team but they are often selected from human resources or workplace safety departments. The most critical component of the job is that they must be readily available, even during off-hours. In the event of a weekend accident with a company vehicle, for example, the DER may need to be available to order and oversee drug or alcohol testing if warranted.
The DER will also have to be intimately familiar with company operating procedures and policies with respect to drug testing, as well as any applicable union agreements, state and federal regulations.
The DER's responsibilities will include:
- Liaising with drug and alcohol testing agents such as the TPA, Consortium TPA, collection sites, labs, Medical Review Officers (MROs), Substance Abuse Professionals (SAPs) and the Employee Assistance Program (EAP)
- Receiving test results and other confidential data
- Ensuring compliance with federal, state and local laws
- Managing the active participant list
Once test results are received, the DER is also authorized by the employer to take immediate action which can include:
- Removing employees from safety sensitive positions and duties
- Making necessary decisions in the testing and evaluation process
- Enforcing company policy with respect to positive test results or test refusals
Larger companies may choose to appoint several DERs so that one is always available when needed to make safety judgements or receive testing results.
Third-Party Administrator (TPA)
Running a drug testing program in your company can be a complicated business. If you’re a DOT employer, there are specific guidelines you must follow regarding how, who and what you must test, but also who you can hire to help you run your programs. A TPA is a service agent or group that is contracted to manage a company’s drug and alcohol testing program. (Learn more in A Review of TPA Best Practices).
For non-DOT employers, the assistance you choose is a matter of both convenience and protection. TPAs can save you time by handling the minutiae associated with administering a comprehensive drug testing program at your workplace. They also serve a more critical service, providing their expertise in an area that is governed by a myriad of frequently shifting laws, regulations and policies.
Though under DOT regulations a TPA cannot perform specific employer or DER duties, such as making a reasonable suspicion determination or removing an employee from duty, they can offer advice and review regulations and options with you. TPAs can be expected to be familiar with all employer requirements in your industry and state and with all related federal statutes. As an expert in the field, the TPA will have experience in situations similar to yours and will have a variety of contacts and resources in the field to draw on to help.
In addition to bringing their expertise to the table, additional duties that may be performed by the TPA include:
- Contracting with collecting and testing companies and MROs
- Maintaining a roster of employees for random testing
- Supplying electronic chain of custody forms
- Consolidation of bills with a single invoice
- Managing required paperwork including testing and screening records
- Troubleshooting issues related to testing and follow-through
- Maintaining a DER list
TPAs can also provide a single point of contact for administering drug tests and collecting results. A contract is not required between the TPA and employer, but you might want to protect your company by clearly outlining all roles and responsibilities. DOT employers can be held legally responsible for errors made by service agents such as TPAs.
The Consortium/TPA is a term defined by DOT and is used to identify service agents that act on behalf of several employers, including owner-operators who are not permitted to manage random testing on their own. The Consortium/TPA serves many of the same functions as a TPA but is also a bit of a hybrid. In the case of owner-operators and single driver employers, this service agent, unlike most TPAs, can act on behalf of the employer.
Which Is The Right Choice For My Company?
The decision regarding whether to hire a DER or a TPA, or both, really depends on the size and scope of your drug testing program and the manpower and time you are willing to devote to your program. Operating with just a DER means ensuring that this representative is informed about current legislation and even legal judgements that might affect your policies and procedures. It also means ensuring your DER has the time to devote to all aspects of testing, including the management of the test and the delivery and management of results and repercussions for positive results. Adding a TPA to the team can save you money and provide this expertise, but it may be an unnecessary expense if your drug program isn’t large enough or active enough to warrant it. A consortium/TPA may be a good alternative for some owner-operators.