DOT DRUG AND ALCOHOL TESTING REGULATIONS: ARE YOU READY?
by Karen Herson and Bill Current
Do you know that if you employ anyone who must, in the course of his or her job, possess a commercial driver's license (CDL) and perform 'safety-sensitive' functions as defined by the U.S. Department of Transportation (DOT), you are required to conduct drug and alcohol testing?
Although drug testing had long been mandated by DOT, the Omnibus Transportation Employee Testing Act of 1991 goes further by also requiring alcohol testing and extends coverage to intrastate drivers and all CDL holders. This legislation greatly increased the number of workers covered. DOT estimates that nearly 8 million workers across the country are now affected by the requirements of the Act, which also applies to the aviation, railway, marine, and pipeline industries.
The DOT drug and alcohol testing regulations unquestionably represent one of the most complex and costly federal regulations in existence today. Most of the requirements are beyond the capabilities of many small business owners. However, the drug-free workplace consulting firm of Robert Stutman & Associates has developed a product that literally takes the hassle and the exorbitant expense out of complying with the regulations. We'll discuss this in greater depth later in this article. For now, let's examine exactly what the regulations require of you.
WHO IS COVERED?
The DOT's explanation of 'safety-sensitive' functions in the motor carrier industry is simply anyone driving, ready to drive, or immediately available to drive and any driver who is supervising the loading and unloading of a truck is considered to be performing a safety-sensitive function and must be subject to drug and alcohol testing.
All said, not only truck drivers but school bus drivers, certain delivery personnel, and other drivers of commercial motor vehicles-even if they do not cross a state line-are now subject to drug and alcohol testing.
On January 1, 1995, the drug and alcohol testing requirements of the Omnibus Drug Act became effective for companies with 50 or more safety-sensitive transportation workers. On January 1, 1996, the rule went into effect for all other companies, so that hundreds of thousands of small companies should be in the process of planning their testing programs even if they employ only one covered worker.
HOW DO THE REGULATIONS WORK?
Drug Testing-Employers must test employees for marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamine (including methamphetamine).
- Before hiring an individual for a safety-sensitive position.
- Within 32 hours after an accident has occurred.
- Randomly at a 50% frequency rate (25% for the aviation and railway industries).
- Upon reasonable suspicion that an employee is using illegal drugs.
- Prior to an employee returning to duty in a safety-sensitive position after participating in a substance abuse treatment program.
- As follow-up to treatment based on the recommendation of a substance abuse professional (SAP).
All drug tests must be performed by a laboratory approved by the Substance Abuse and Mental Health Services Administration (SAMSHA). Most SAMSHA labs will provide the materials necessary to collect the urine specimen and ship it to the lab for testing. All positive drug screens must undergo confirmation testing by gas chromatography/mass spectrometry.
Employers often have to contract separately for collection. Collection can take place at a hospital, clinic, physician's office, or in the workplace. However, strict chain-of-custody procedures must be observed at all times, regardless of where the specimen collection takes place for the test to be considered valid.
The DOT also requires employers to utilize the service of a medical review officer (MRO). The MRO reviews drug test results for accuracy and assures that there is no reasonable explanation for a positive drug test, such as the employee being on prescribed medication. MROs are authorized to consult with an employee's physician to ascertain whether there is a legitimate medical explanation for a confirmed positive test result.
Alcohol Testing-Unlike drug tests, alcohol tests can be performed on site in the workplace. Currently, only two types of alcohol testing are permitted -- a breath test and a saliva test.
Employers are not required to conduct pre-employment alcohol tests. However, alcohol tests are required:
- Upon reasonable suspicion that an employee is misusing alcohol.
- Within two hours after an accident
- Randomly, at a 25% frequency rate.
- Prior to returning to duty after a positive alcohol test.
- As follow-up to treatment, on the recommendation of an SAP.
All alcohol test devices must be approved by the DOT. A list of approved devices (Conforming Products List of CPL) is issued by the National Highway Transportation Safety Administration (NHTSA). Any positive test not already performed with an evidentiary breath testing device (EBT) must be confirmed by a test utilizing an EBT. Alcohol tests must be administered by someone who has completed the DOT's mandatory training-a breath alcohol technician (BAT). Employees can be trained as BATs.
TRAINING AND EDUCATION
Most employers have not dealt with substance abuse issues and are unfamiliar with drug and alcohol testing procedures. Therefore, DOT requires one hour of supervisor training on the signs of drug abuse and a second hour of training on the signs of alcohol misuse. Every new supervisor must receive training. Employers must be prepared to conduct the training on an ongoing basis, and training must include information about the company's policy and the supervisor's role in implementing DOT regulations.
Employee education is also required. However, employers are only obligated to provide education to 'covered' workers. There are several specific categories of information that must be included in an employee education program, including the provisions of the company's policy and the signs and symptoms of substance abuse.
HOW WILL DOT ENSURE COMPLIANCE?
Employers are responsible for ensuring that their programs are in compliance with DOT regulations and are required to keep detailed records of their workplace program. This responsibility may not be delegated to an MRO or any other service provider.
DOT will conduct inspections or audits of employers' programs and record keeping. Some employers will be randomly selected to submit management information system (MIS) reports to the applicable DOT agency. These reports also serve to provide data on the extent of the substance abuse problem in the industry and the need for revisions to the regulations.
Penalties for noncompliance can be quite severe. For example, if a driver is allowed to perform safety-sensitive job duties after a verified positive drug or alcohol test without first meeting return-to-duty requirements, the employer can be fined up to $10,000. Incorrect or missing records can cost an employer up to $500 for each violation.
HOW CAN SMALLER COMPANIES BE IN COMPLETE COMPLIANCE?
Most large businesses have the resources and expertise to address DOT regulations. In many cases, however, owners of smaller businesses may have never considered workplace substance abuse issues, and starting a substance abuse program that includes drug and alcohol testing will be a completely new experience. Smaller companies should call the Department of Transportation's headquarters at (202) 523-0163 for information about a drug testing and education kit that will help their firms meet the latest regulations.