Compliments of Marvin Johnson & Associates 2008

Leading you down the road to safety

Compliments of Marvin Johnson & Associates 2008

Introduction

In the trucking industry there is no option about whether you have a drug and alcohol testing program. The Department of Transportation requires that all CDL drivers be tested under certain specific circumstances. As an employer, you are required to be knowledgeable of the federal regulations, and establish a program that conforms to these regulations.

There are other aspects to consider when establishing your program as well. The DOT wants to get drug users and alcohol abusers off of the road, but at the same time there are concerns about privacy and fair treatment that must be considered.

The purpose of this reference manual is to give the motor carrier guidance on how to establish a drug and alcohol testing program that will comply with the DOT regulations as well as protects the employees/independent contractors rights and privacy. In this manual you will find required elements that must be included in your program as well as optional policies that can be implemented to enhance your program. In addition, we have included suggestions on how to organize and implement the program, as well as examples of various forms and policies that can be used in your program.

It is recommended that you read and become familiar with Part 382 and part 40 of the FMCSR. These regulations outline all of the required elements for a drug and alcohol testing program, as well as procedures that are followed for the entire testing process. These regulations combined with the information contained here will help you establish a drug and alcohol testing program that will satisfy DOT requirements and stand up to the scrutiny of a jury. In addition to this information, we also have many other resources available on our OnlineSafetyResourceCenter.

Table of Contents

1)Doing your own collections vs. outsourcing

2)Picking a service provider

3)Designated Employer Representative

4)Company Policy Statement

  1. Prohibited conduct: Part 382 Subpart B (382.201-382.215)
  2. Consequences of violations: 382.501-507
  3. For use, possessions, refusal to test, etc.
  4. For alcohol test with result between .02 and .039
  5. “Confession” rehabilitation policy: 382.121

5)Additional Company requirements/policies

  1. Notification of prescription medications
  2. Dilute negative test results: Part 40.197
  3. Retest or no retest policy
  4. Stand Down policy: 382.119

6)Referring to a Substance Abuse Professional(SAP): Part 40.287

7)Post-accident testing procedures: 382.303

8)Collection procedures

  1. In-house or outsourced
  2. If in-house, names of collectors
  3. Documentation of collector training

9)Split testing payment procedures

10)Supervisor Training: 382.603

  1. List of supervisors
  2. Training documentation

11)Employee Information Guide: 382.601

12)MRO and laboratory names and credentials

13)Semi-annual laboratory summaries

14)Annual summaries

Doing You Own Collections vs. Outsourcing

When looking at setting up a drug/alcohol testing program you have two options available: 1) conduct the collections process yourself, or 2) outsource the collections to a service provider. Like all decisions there are pros and cons to both sides. Below we have outlined some things to consider for each option before making your decision.

In-house Collections:

1)Regulations require training to be conducted in order to do collections. Recurring training is also required at least every five years or whenever a mistake results in a cancelled test. The company would be responsible for making sure that all training is conducted and that all collectors maintain their qualifications.

2)May have to develop an internal system to randomly select your drivers for testing unless you have a service provider do this for you. No, picking names out of a hat will not count.

3)How will you handle alcohol testing? Breath analyzers are very expensive. Saliva testing is allowable for the screening test, but confirmation tests must be conducted on a breath analyzer machine. Once a result of .02 or greater is confirmed on the screening test, you only have 30 minutes to conduct the confirmation test. How will you accomplish this requirement? You may still need to outsource your alcohol testing if you cannot comply otherwise.

4)Will still need to have laboratory, MRO, and SAP service providers.

5)How will you handle post-accident testing if you cannot get a company collector to the driver within the time constraints?

6)Note - It is possible to have a third party administer everything in the program except the drug collections for you.

Outsourcing Collections:

1)Will you have your own “stand alone” program or be part of a consortium?

  1. A stand alone program means that there are no other company’s drivers in the random selection pool other than your drivers. You will know exactly how many random tests must be conducted for the year.
  2. A consortium program will have your drivers placed in a larger selection pool with other drivers. You may get randomly tested more, less, or the same than you would in a stand alone program. Note - If you have only one driver being tested you must be in a consortium.

2)Are there membership fees?

3)How much is the collection charge?

4)Do they have a nationwide network that will enable you to conduct post-accident tests within the time constraints? For example, your driver has an accident that requires drug/alcohol testing at 2:00 a.m. in Wyoming. Can you get them to a collection facility in time to get the tests conducted? (Within 8 hours for alcohol and 32 for drug)

  1. Does the program have a 24/7 number that can be called to arrange the collections?

5)Do they have all of the required training in place for their collectors?

6)Do they send the specimens to a DOT approved laboratory?

7)Do they have a qualified MRO to verify results?

These are good areas to consider. There may be other things to take into consideration as well based on your company needs.

Choosing a Designated Employer Representative

The DOT now requires that the company choose a designated employer representative. In addition, the identity of the DER must be given to everyone in the company drug/alcohol testing program. The DER must have the authority to immediately take action to remove a person from a safety sensitive function if the occasion arises. The DER is also the contact person for the service providers, and anyone who has questions about the program. Whomever you choose should be very knowledgeable of the DOT drug and alcohol testing regulations, your company policies, and be trained in reasonable suspicion testing.

Company Policy Statement

Most companies simply adopt the federal regulations as their company standard. These are minimum standards, and the company can go above and beyond these standards. Keep in mind though, any test conducted outside of the DOT guidelines is not a DOT test and cannot be included in your DOT statistics. You are not even allowed to use a DOT chain of custody form to conduct the testing. Whatever standards you adopt should be included in your company policy statement. Also include what disciplinary steps will be taken against a driver for violations of the rules. You should also review Part 382.121 to determine if you want to implement a “confession” policy that would allow drivers to reveal that they have a drug or alcohol problem and seek help without the fear of disciplinary action. This is an option, but you must comply with the standards in order to have this policy.

Additional Company Policies

There are additional optional policies now under the regulations as well that might be included under this section. Dilute negative result procedures and stand down policies are new options to consider. To research dilute negative results refer to Part 40.197. There is also information in the appendix of this manual on this. It is strongly recommended that you implement a retesting policy for dilute negative test results that will comply with the regulations. The stand down option is listed in Part 382.119, in order to implement such a policy you must get a waiver from the Federal Motor Carrier Safety Administration. If you have any other company policies, such as notifying the company when taking any medications, list them here as well.

Referral to a Substance Abuse Professional (SAP)

When a driver violates the regulations, you as the employer are required to remove him/her from performing any safety sensitive functions and refer them to a SAP. The company should find qualified SAPs in the area and give the driver some options to get their evaluation completed. This ends your responsibilities. If the driver wants to drive a CMV again in the future they are responsible for completing all of the steps necessary to get this done.

Post-Accident Testing

Drivers need to be educated on the regulations for post-accident testing so that they know when they must make themselves available for testing. The company should also educate the drivers on the procedures that they must follow to get the testing completed. The later will vary depending on who your service provider is and what company policies you have in place. It is very important the drivers be trained on this information and also have a copy of it in the truck so that if the time comes they will be able to perform in the correct manner to assure compliance. *See appendix for post-accident testing requirements.

Split Test Issues

If a drug test comes back positive, the driver does have the right to request that a “split test” be conducted. This means that the driver can request that the second vile of urine be tested at a different laboratory. Then the results of the second test will be the test of record. They cannot submit a new specimen for testing, only have the second vile from the original collection tested. This test will cost additional money. Costs vary but $150 and up are a good estimate. Once the driver makes such a request (within 72 hours of notification of the positive result) the test must be conducted. Even if the driver cannot afford to pay for the test, the DOT says that the employer is responsible for making sure that the test is conducted. This protects the driver’s right to have this test conducted. Even if you have to later take legal action against the driver to collect the money paid for the testing, the company is still ultimately responsible for making sure the driver’s rights are not infringed on.

Supervisor Training for Reasonable Suspicion Testing

According to Part 382.603, all driver supervisors must have reasonable suspicion training. This training must consist of at least one hour of training on drug abuse and one hour of training on alcohol misuse. This training should be documented for proof during a DOT audit that training was conducted. Most people simply watch a two hour video. Marvin Johnson & Associates, Inc. can provide this training at your request.

Employee Information on Drug and Alcohol Testing

According to Part 382.601, employers are obligated to have a policy on the misuse of alcohol and use of controlled substances and provide educational materials to drivers on the testing requirements. This information must include all of the required items listed in that part of the regulations. This guide will help you establish a company policy. This company policy combined with the Driver Information Guide to Alcohol and Controlled Substance Testing will satisfy the requirements of 382.601. The information guide is available from our safety department or available on the OnlineSafetyResourceCenter.

Other Miscellaneous Information

The DOT relaxed one standard: you are now only required to get summaries from your laboratory on a semi-annual basis instead of on a quarterly basis. You should still get an annual summary as well.

You should also have copies of contracts with any service providers that you use, and the name and credentials of your MRO.

The more organized your program is the better off you will be. It is recommended that you keep all of your information about your drug and alcohol testing program in one place. A three ring binder with copies of all policies, procedures, summaries, contracts, etc. makes a nice presentation to an inspector. Although there is not an official category during an audit for it, neatness and organization does score you points during an audit.

The following is an example policy that you can use to model your company drug and alcohol policy after. This is only an example, and can be modified to fit your company’s specific needs. One word of caution, anytime you implement a company policy be sure to think it all the way through to the end. Always consider the pros and cons, and how you would defend your policy to a jury.

ABC, INC. DRUG & ALCOHOL TESTING POLICY

The Federal Motor Carrier Safety Administration (FMCSA) requires that ABC, INC. have a Designated Employer Representative (DER). The DER is an employee authorized by ABC, INC. to take immediate action(s) to remove employees from safety-sensitive duties and to make required decisions in the testing and evaluation processes. The DER also receives test results and other communications for ABC, INC. from our collection facilities, MRO, and laboratories. ABC, INC. has designated <INSERT NAME> as the Designated Employer Representative.

ABC, INC. has adopted the FMCSA regulations in Part 40 and Part 382 as their minimum standards for drug and alcohol testing. ABC, INC. retains the right to have standards that are stricter than the FMCSA regulations, any such standards will be outlined in this company policy and communicated to the employees and independent contractors of ABC, INC.

Violation of any of the rules Part 40 or 382 is strictly prohibited. The FMCSA states very specifically what the consequences for violating these rules are. The prohibited conduct and the consequences are outlined in the ABC, INC. Driver Information Guide to Alcohol and Controlled Substance Testing.

If an employee or independent contractor of ABC, INC. violates the rules of Part 382 or Part 40 of the FMCSA, ABC, INC. is not obligated to retain the services of or hold a position for such employee or independent contractor. Upon the receipt of a confirmed positive controlled substance or alcohol test result or upon refusal to take a test, ABC, INC. will terminate the employee or cancel the independent contractor’s lease agreement immediately.

ABC, INC. does retain the right to rehire a driver after the required steps have been taken that are outlined in the FMCSA return to duty requirements, all SAP recommendations have been successfully completed, and documentation has been received. ABC, INC. is not obligated to rehire, but will evaluate each case based on the driver’s past performance and any other information presented.

Use or possession of alcohol or illegal drugs is strictly prohibited on company property or in company or leased vehicles. Violations of this policy will result in immediate termination and/or cancellation of your lease. Failure of a breath alcohol test or drug test administered by a law enforcement officer while operating equipment under the authority of ABC, INC. will result in immediate termination and/or canceling of your contract. This applies even if the test conducted does not fall under the DOT testing rules.

All drivers operating under the authority of ABC, INC. shall inform ABC, INC. of any medications that they are taking while performing safety-sensitive duties. Any medication, either prescription or over-the-counter, that could adversely effect your ability to operate a commercial motor vehicle are prohibited. *Note – if you take a medication that is prescribed to someone else or was prescribed to you for another purpose and you have a positive test result on a controlled substance test – the test will be ruled as a positive test and you will be subject to the evaluation and return to duty requirements of the regulations.

In the event that ABC, INC. receives a controlled substance test result that is “dilute negative” the driver will as soon as possible be sent for another test. This option is allowed under Part 40.197(b) of the FMCSA. Once notified, the driver must proceed immediately to the collection facility and submit a new specimen for testing. The split testing option cannot be exercised as a substitute for submitting a second specimen. If the driver refuses to submit to a second test, this will be ruled as a refusal to test and the driver will be subject to the consequences associated with such a violation. The results of the second test will be the test of record. For example if the second test is negative then a negative result will be recorded. If the second test is positive then a positive result will be recorded. If the second result is dilute negative again, the negative result will stand, and no other tests can be required.