After a Positive DOT Drug Test - MRO Duties

After a positive DOT drug test, the MRO is required to contact the donor. But, what happens when a the MRO is unable to contact the donor to confirm the result?

All positive DOT drug test results are immediately sent to the Medical Review Officer (MRO) for confirmation. It is the role of the MRO to contact the donor by telephone to confirm that there is not a legitimate medical explanation for the positive test result.

The actions that the MRO takes are written into the regulations of 49CFR Part 40. Specifically, the MRO must make reasonable efforts to reach the employee at the day and evening telephone numbers listed on the CCF. Reasonable efforts include, as a minimum, three attempts, spaced reasonably over a 24-hour period, to reach the employee at the day and evening telephone numbers listed on the CCF. If the MRO or her staff cannot reach the employee directly after making these efforts, the MRO or her staff must take the following steps:
(1) Document the efforts you made to contact the employee, including dates and times.
(2) Contact the Designated Employer Representative, instructing the DER to contact the employee and instruct the employee to contact the MRO. If both phone numbers are incorrect (e.g., disconnected, wrong number), the MRO or her staff may contact the DER without waiting the full 24-hour period.

After the employer has been contacted and attempted to contact the employee, the MRO may verify the test result if the employer has reached the employee and instructed him or her to call the MRO, and 72 hours has passed. If neither the MRO nor the employer has been able to contact the employee, the MRO must wait 10 days before verifying the test.

DOT Follow-up Testing Requirements

After a driver who had a positive result on a drug or alcohol test has been evaluated by a Substance Abuse Professional (S.A.P.) and passed a return-to-duty test, he may be returned to work. The DOT requires that the driver have a series of substance abuse follow-up tests over the course of the next year or more.

The testing may be for alcohol, drugs or both as designated by the Substance Abuse Professional (S.A.P.).

As a reminder, the sequence is as follows:
(1) A driver tests positive for alcohol or drugs
(2) The employer decides to retain the driver.
(3) The driver is evaluated by a licensed S.A.P.
(4) The S.A.P. determines what treatment the driver should undergo.
(5) The driver has a negative return-to-duty test and returns to work.
(6) The driver is required to have follow-up testing for a period of no less than one year.

The number of tests and the length of the testing program are determined by the S.A.P. based on his or her evaluation of the driver’s particular substance abuse issues. The D.O.T. requires that the driver undergo no less than six follow-up tests in the next twelve months, but follow-up sequences can go on for years as necessary.

Prescription Drug Abuse - Beyond DOT drug tests

The Department of Transportation testing program includes tests for illegal drugs only; Marijuana, Opiates, Amphetamines, PCP, and Cocaine. However, there are many other drugs that people abuse; often prescribed by doctors!

Prescription drugs are prescribed by doctors to cure people, so how can they be harmful? Because everyone’s body chemistry and tolerance to drugs is different, taking someone else’s prescription drugs can be harmful, even fatal. When doctors prescribe drugs, they evaluate many different factors. Drugs should only be used to alleviate conditions that are painful or harmful to your body, because even taking safe medicines carry risks.

In today’s workplace, employees sometimes take prescription medications not to alleviate medical conditions, but to numb feelings and zone out. This behavior negatively impacts the work being performed and can lead to accidents. Also, even though prescription drugs are legal, employees who sell or use drugs obtained illegitimately are breaking the law.

The two most frequently encountered drugs on the illicit market are Xanax (alprazolam) and Valium (diazepam). These drugs are depressants. Their abuse causes amnesia, hostility, irritability, and eventual physical dependence. When combined with alcohol, they can be deadly.

Abuse of prescription drugs can be detected by using 10-panel drug testing. Also, a Medical Review Officer should review the results to confirm that a person using a prescription drug has a valid prescription.

Employer Page on the DOT Web Site is a Great Resource

The Department of Transportation’s Office of Drug & Alcohol Policy & Compliance has a web site destination specifically for companies that hire DOT drivers. Entitled the "Employer Page", they have posted links to the most important information for employers to know in one place.

The DOT recognizes that employers of safety-sensitive transportation employees play a vital role in ensuring the safety of their employees and the traveling public. Employers are responsible for developing and implementing successful DOT workplace drug and alcohol programs that have as their components clear policies, provisions for education and training, drug and alcohol testing, and when needed, referral for evaluation and treatment.

• Some of the articles and links on the Employer Page include:
• Best Practices for DOT Random Drug and Alcohol Testing
• Current list of HHS certified laboratories
• DOT Agency/USCG drug and alcohol program manager contact information
• DOT Agency/USCG drug and alcohol program facts
• Drug and Alcohol Record Keeping Requirements
• Drug and Alcohol Testing Data MIS Collection Form and Instructions
• Employer Responsibilities under Subpart B of 49 CFR Part 40
• ODAPC - Fact Sheet
• Random Testing Rates
• Release of Information Form 49 CFR Part 40 – Drug and Alcohol Testing (suggested format)

You can browse to the Employer Page by clicking here: DOT Employer Page

US Court of Appeals Issues Stay for Direct Observation Drug Test Procedures

Dateline: October 31, 2008

The U.S. Court of Appeal for the D.C. Circuit has temporarily delayed the November 1st Direct Observation (DO) requirement for DOT return-to-duty and follow-up tests. This is an “administrative stay” until the Court completes its review on the matter.

On June 25, 2008, the Department of Transportation issued a new ruling, 49 CFR part 40.67 that required all Return-To-Duty and Follow-up testing to be conducted using Direct Observation. The initial starting date for the requirement was August 25, 2008, but it was then delayed, and slated to be put into practice on November 1, 2008. Now it has been delayed again by the court's administrative stay.

Until it is officially implemented, Direct Observation for return-to-duty and follow-up testing will continue to be an employer option, rather than mandatory.

A copy of the US District Court stay order can be found here: Direct Observation Administrative Stay

The Five Drugs of the DOT - All DOT drug tests are for five drugs

All Department of Transportation drug screens, whether preemployment, random, post-accident, reasonable suspicion, return-to-duty, or follow-up, test for five drugs.

The D.O.T. five are THC (Marijuana), Opiates (Heroin), Amphetamines, Cocaine and PCP. All five drugs are illegal and are considered to be the most abused illegal drugs in the United States. Knowing something about each of these drugs will help supervisors to recognize references to them, behaviors associated with them and how they are used.


THC (Marijuana)
THC (Tetrahedral Carbonyl) is the active ingredient in Marijuana and Hashish.
Slang terms: pot, grass, smoke, weed, joints.
Form: Dried flowers and leaves of the hemp plant, Cannabis Sativa. Also, green, brown or black block of hashish.
Uses: Primarily smoked in pipes or rolled in papers as cigarettes (joints). Can also be eaten in baked goods.
Effects: Users experience feelings of relaxation and giddiness and often experience dry mouth, rapid heartbeat, loss of coordination and balance, and slower reaction times. Also adversely affects short term memory.
More info: Marijuana


Opiates
Derivatives of the opium poppy. This group of drugs includes morphine and it’s derivative, heroin. It is highly addictive and users who inject it run the extra risks of HIV and hepatitis B and C from sharing needles.
Slang terms: smack, horse, H, junk, scag
Form: Usually a white powder, but runs in color from white to dark brown or even black.
Uses: Often taken orally, it can be inhaled, smoked and injected into the blood stream.
Effects: Intense euphoria, drowsiness, impaired metal function, slowed respiration, disorientation.
More info: Opiates


Amphetamines/Methamphetamine
A powerful central nervous system stimulant or “upper”, it is also addictive.
Slang terms: speed, meth, crank, crystal, glass
Form: Sold as a powder, it can be mixed with water for injection, or sprinkled on tobacco or marijuana and smoked. Purer forms can be in clear chunks, resembling rock candy.
Uses: Taken in pill form, smoked, injected, or vaporized and inhaled.
Effects: Users feel energetic, alert and self confident. Many also feel wired and agitated and their behavior becomes unpredictable. Some feel compelled to repeat small tasks over and over, and others may pick at imaginary bugs on their skin. Users rarely eat or sleep and eventually “crash”, marked by agitation and depression.
More info: Amphetamines/Methamphetamine

Cocaine
The most powerful nervous system stimulant found in nature, it is derived from the coca plant. It causes a short-lived high and is considered addictive. Users may require more and more of the drug to get the same feeling.
Slang terms: coke, crack, snow, blow, sneeze, rock.
Form: It comes in the form of a white powder and also as off-white crystalline chips, rocks or chunks.
Uses: It is usually snorted, and can also be injected. The crystal form is usually smoked or vaporized and inhaled from glass pipes.
Effects: Mild euphoria and feeling of increased energy. Interferes with sleep patterns and can cause muscle spasms and convulsions. Emotional changes include feelings of depression, edginess and craving more of the drug.
More info: Cocaine

Top Supervisory Problems - Respect for workers pays dividends

“My supervisor doesn’t listen to me.”
One of the biggest complaints of employees is that their supervisors are not taking the time to listen to them. This can be very stressful for employees who believe that they could do a better job if certain changes were made. Sometimes supervisors are reluctant to hear workers’ concerns because they worry that they are not in a position to help solve their problems.

Listening to your workers communicates respect for them. Even if you don’t agree to requested changes, employees feel better when they feel heard. Also, employees that know that their supervisors will listen to them, are more likely to pass along information that they have learned from other employees. This keeps the supervisor in the loop and helps them to act on situations that could become bigger problems.

“I am doing the work of 2 or 3 people.”
Sometimes, due to changing workload, we ask our employees to work under less-than-perfect conditions. We may realize that we are asking them to do more in the same amount of time or with limited resources. One of the keys to keeping the overworked employee from burning out is for supervisors to acknowledge the situation. Let the worker know that you are aware that you are asking more from them than usual and thank them for their extra work. Employees will work better if they are acknowledged for their extra efforts.

It is also important to realize that workers who are being asked to get more done in the same time period will eventually get burned out. As soon as possible, add staff or reassign work loads or priorities. If the overworked employee knows that the supervisor is actively working to normalize the workload, they are much more likely to cooperate.

In industries where work loads often vary, many successful companies create built in extra capacity when hiring workers and purchasing equipment. Much of the time the workgroup will work at 80%-90% capacity, but when the workload increases, the extra work can be absorbed and accomplished in a timely manner.

Components of a DOT Drug and Alcohol Testing Program

49 CFR part 382 and part 40, stipulates what employers must do to be in compliance with the Department of Transportation's Substance Abuse Testing program. Employers are required to have all the components in working order when the inspector pays them a visit. Missing even one part can mean a "fail" on the inspection, and even fines.

Required components of a D.O.T. Drug testing program are:

• Each employer is required to have a published Substance Abuse Testing Policy.
  
• Employers must test drivers for drugs in the following six categories; preemployment, random, reasonable suspicion, post accident, return-to-duty and follow-up.
  
• Employers must test drivers for alcohol in the following five categories; random, reasonable suspicion, post accident, return-to-duty and follow-up.
  
• Employers must provide to their drivers, information about the DOT testing requirements. The DOT is specific about the information that must be provided (§382.601). 
  
• Employers must provide one hour of training for each of their supervisors in the signs of substance abuse and one hour of training for each of their supervisors in signs of alcohol abuse.
  
• Employers are required to provide a list of Substance Abuse Professionals to any driver that tests positive for drugs or alcohol.
  
• Employers are responsible for having in their files, results of drug tests as well as quarterly and annual reports of drug testing statistics.
  

Employers regulated by the Department of Transportation should be familiar with the requirements listed. Information can be found here: What Employers Need To Know About DOT Drug and Alcohol Testing

Rapid Drug Screens - One weapon against employee drug abuse

"Instant Drug Tests" or "Rapid Screen Tests" can be a useful weapon in the drug testing arsenal, but employers should be very careful when using them. There are good reasons for doing quick tests, but there are also important safeguards that employers must take to safeguard the rights of their employees and to protect themselves from legal challenges.

First of all, it is important to know that the Department of Transportation does not authorize the use of any kind of rapid or instant test. Any drug testing completed for the D.O.T. MUST be done using a government certified laboratory. The D.O.T. requires that all screening tests that are not negative, be followed by a test with higher level of accuracy, such as a Gas Chromatograph / Mass Spectroscopic test (GC/MS).

In fact, ALL screening tests should be followed by a confirmation test, including rapid or instant tests. Here's why; rapid testing is less accurate than a lab screening test in verifying positive test results. Also, these types of tests are less foolproof than laboratory testing. Thirdly, courts are much more likely to consider as evidence, a drug test result signed by a certified laboratory scientist; instant drug test results are not.

Rapid Drug Screens are great for verifying that a person has not used illegal drugs in the past 48 - 72 hours. Their accuracy in confirming negative tests is excellent. They are convenient because in just about ten minutes, an employer can know if the donor is drug free. They can feel confident that the employee they are putting to work is not impaired.

What Happens When an Employer Receives a Dilute Specimen Drug Test Report?

Dilute Specimen Drug Test Results

For Department of Transportation (DOT) regulated drug testing, if an employer receives a "dilute specimen" test result, action may be required. If the specimen reported as dilute is a positive test result, it is treated just like any other positive drug test.

If the specimen is reported as negative and dilute, the employer may, but is not required to, direct the employee to take another test immediately. Such recollections must not be collected under direct observation, unless there is another basis for use of direct observation.

The employer must treat all employees the same for this purpose. For example, employers may not retest some employees and not others. Different policies may however be established for different types of tests (e.g., conduct retests in preemployment test situations, but not in random test situations). Employers must inform employees in advance of decisions on these matters (usually by including this in the drug testing policy).

If the employer direct the employee to take another test, the result of the second test, not that of the original test, becomes the test of record (the first result is disregarded). If the second test is also negative and dilute, the result of that test still stands; there is no third retest. If the employee refuses to take the second test, this is considered a refusal to test under the regulations.

How Does an Employee Request a Split Specimen Drug Test?

Department of Transportation Regulations dictate that when an employee shows up positive on a drug test, they must be notified of their right of a split specimen test. Under DOT rules, when a specimen is collected, the sample is split between two vials. One of these vials is used for the laboratory test, and the second one, the split, is help in storage.

Upon the request of the employee, the second split sample is transported and tested at a different HHS certified substance abuse testing laboratory. This procedure is used to rule out any possibility of laboratory error. The regulations are stated as follows:

(a) As an employee, when the Medical Review Officer (MRO) has notified you that you have a verified positive drug test or refusal to test because of adulteration or substitution, you have 72 hours from the time of notification to request a test of the split specimen. The request may be verbal or in writing. If you make this request to the MRO within 72 hours, you trigger the requirements of this section for a test of the split specimen.

(b) If, as an employee, you have not requested a test of the split specimen within 72 hours, you may present to the MRO information documenting that serious injury, illness, lack of actual notice of the verified test result, inability to contact the MRO (e.g., there was no one in the MRO's office and the answering machine was not working), or other circumstances unavoidably prevented you from making a timely request.

(c) As the MRO, if you conclude from the employee's information that there was a legitimate reason for the employee's failure to contact you within 72 hours, you must direct that the test of the split specimen take place, just as you would when there is a timely request.

When the employee makes a timely request for a test of the split specimen under paragraphs (a) and (b) of this section, you must, as the MRO, immediately provide written notice to the laboratory that tested the primary specimen, directing the laboratory to forward the split specimen to a second HHS-certified laboratory. You must also document the date and time of the employee's request.

For information about split specimen testing and how it is performed, please see DOT split-specimen testing requirements

The Use of Stand Down Waivers in DOT Drug Testing

Sometimes, after the random drug test of several of a company's DOT drivers, negative test results are received by the employer for all but one of them. The employer may become concerned that the result they are waiting for is going to be a positive one. The employer's normal inclination might be to remove that driver from a safety sensitive position until the test result has been received. However, the DOT rules state that the employer may not do that unless certain specific steps are taken.

STAND DOWN WAIVERS
The term for removing a driver from a safety sensitive position while awaiting verification of test results from the MRO is "standing down" that employee. Employers are prohibited from standing an employee down, unless they obtain a waiver from a DOT agency. Employers may request such a waiver from the DOT agency whose drug and alcohol testing rules apply to the majority of their employees.

Such a waiver, if granted, permits the employer to stand an employee down pending the MRO's receipt of a laboratory report of a confirmed positive test for a drug or drug metabolite, an adulterated test, or a substituted test pertaining to the employee. Agencies of the DOT do not grant Stand Down Waivers without quite a bit of information from the employer. The DOT will want to know the employer's reasons for believing that a Stand Down Waiver is needed and will require facts that support that conclusion, including any data on safety problems or incidents that could have been prevented if a stand-down procedure had been in place.

In addition, the DOT agency will require certain specific assurances. For example, that the company will include a stand-down provision in the company policy and make sure that it is distributed to all covered employees. Also, how the company will ensure that the stand-down provision will apply to all covered employees equally. For most companies, it would require quite a bit of time and effort to meet the requirements of obtaining a Stand Down Waiver. For more details about what other assurances are required and what actions a company needs to take, see DOT Stand Down Requirements.

The DOT regulations are designed to be fair to employees and at the same time, protect the public and industry. A delayed drug test result does not necessarily mean a positive one. Companies are advised to continue to require their drivers to perform their assigned duties until they receive a verified positive test result.

Observed and Monitored Urine Specimen Collections

Within the drug testing regulations, the Department of Transportation provides rules regarding when a urine collection must be performed using a "directly observed collection." A directly observed collection is one in which the collector actually watches the donor urinate into the collection cup.

If the donor provides a specimen that is out of the normal temperature range, or if the specimen is obviously tampered with (blue in color, for example), the collector is required to immediately begin the process of collecting a new specimen under direct observation. Beginning in November 2008, observed collections will also be routinely required for all Return-to-Duty and Follow-up testing.

To protect the privacy and modesty of the donor during a directly observed collection, the D.O.T. requires that the collector be of the same gender as the donor. If the collector and the donor are not the same gender, another person who is the same gender as the donor (usually a supervisor), must observe the collection. The collector instructs the third party as to their role in the collection process including checking the employee for prosthetic or other devices designed to carry clean urine or urine substitutes and to watch the employee urinate into the collection cup. Recently, the Department of Transportation revisd the observed collection process which now provides much less privacy to the donor.

The new regulations require the following procedures:

• The observer requests the employee to raise his or her shirt, blouse or dress / skirt, as appropriate, above the waist, just above the navel; and lower clothing and underpants to mid-thigh and show the observer, by turning around, that the employee does not have such a device.

• If The Employee Has A Device: The observer immediately notifies the collector; the collector stops the collection; and the collector thoroughly documents the circumstances surrounding the event in the remarks section of CCF. The collector notifies the DER. This is a refusal to test.
  
  
• If The Employee Does Not Have A Device: The employee is permitted to return clothing to its proper position for the observed collection. The observer must watch the urine go from the employee’s body into the collection container. The observer must watch as the employee takes the specimen to the collector. The collector then completes the collection process.
  
  
• Failure of the employee to permit any part of the direct observation procedure is a refusal to test.

Unlike an observed collection, in a monitored collection, the collector does not actually watch the donor. The collector goes into the bathroom with the donor, but does not go into the stall. As long as the collector is a medical professional, he or she does not have to be of the same gender as the donor. A monitored collection can be used for any preemployment, random, reasonable suspicion or post-accident collection.

Most collections are not monitored or observed. Instead, the collector secures the collection site using tape and blue dye to prevent tampering with the specimen by adding water. If the collection site is a large bathroom with multiple sinks and stalls, it can sometimes be difficult to properly secure it. The collector can choose to do a monitored collection under those circumstances.

DOT Urine Specimen Collection Procedures

The US Department of Transportation requires collectors to follow specific procedures when they perform a urine collection for a drug test. These procedures are outlined in Federal Rule 49 CFR, Part 40, Subpart D. It is helpful for supervisors to understand these procedures so that they can explain them to driver applicants. Also, if something goes awry in the collection process, knowledge of the procedures will help the supervisor to understand the appropriate steps to take.

The following are some of the federally mandated procedures required to be used every time a collection is performed.

IDENTIFICATION
Before a urine collection can take place, the collector must verify the identity of the donor. This is usually done with a picture ID (driver's license). It is also permissible for a supervisor to identify the individual to the collector (but not for a coworker to do so).


HAND WASHING
The donor must wash their hands with soap and water before providing the specimen. For mobile testing, it is the responsibility of the employer to furnish a location where this can be accomplished. If no water and soap are available, the testing should be performed at another location.


RESTRICTING ACCESS TO WATER AND CHEMICALS
The collector must prevent the donor from having access to a water source and to any chemicals that could be used to contaminate or adulterate the specimen.


BLUING THE TOILET
The collector adds bluing to the toilet bowl and tank as a precaution against the donor adding water to the specimen.


SECURITY SEALS
Once the specimen is procured, it is poured by the collector into the two transportation vials while the donor watches. Each vial is dated and then initialed by the donor validating that the specimen belongs to him or her.

Employees Are Required to Cooperate with DOT Drug & Alcohol Testing Procedures

The Federal Drug and Alcohol Testing Regulations require employees to cooperate with the testing process. Failure to do so is considered to be the same as a refusal to test which carries the same penalty as a positive test result.

Part 40 highlights two examples of failure to cooperate - the employee refuses to empty pockets when instructed to do so; and the employee behaves in a confrontational way that disrupts the testing process.

Among others are:

• The employee fails to wash his or her hands after being directed to do so by the collector.
• The employee admits to the collector that he or she adulterated or substituted the specimen;
• The employee is found to have a device - such as a prosthetic appliance - the purpose of which is to "cheat the test" by not providing an actual urine specimen.

When the issue is a problem with refusing to following instructions - for example, refusing to empty pockets or refusing to wash hands - or if there is a confrontation, the collector is required to warn the employee of potential consequences of a failure to cooperate; and if practical, seek assistance from the Designated Employer Representative (DER) or supervisor to ensure that the employee understands the ramifications.

When the issue is admission of adulteration or substitution or when a device is found, there is no stipulation for the collector to warn the employee or to seek assistance from the DER or supervisor.

In every case, the collector will follow the procedures at 40.191(d) by terminating the collection process, immediately notifying the DER of the refusal, and thoroughly documenting the circumstances surrounding the event in the remarks section of the Chain of Custody Form (CCF).

With proper documentation on the CCF, the Medical Review Officer (MRO) will then contact the employee, confirm the information and subsequently provide the employer with the test result.

Random Testing of Occasional DOT Drivers

The Department of Transportation requires employers to randomly drug and alcohol test drivers who hold a commercial driver's license, even if they are do not drive as part of their usual job functions.

Drivers who may be called upon at any time, on an occassional or emergency basis to drive, are requried to be in a random testing pool at all times, like a full-time driver. A drug test must be administered each time the employee's name is selected from the pool.

Alcohol testing, however, may only be conducted just before, during, or just after the performance of safety-sensitive functions (generally, driving and related activities). If the employee's name is selected, the employer must wait until the next time the employee is performing safety-sensitive functions, just before the employee is to perform a safety-sensitive function, or just after the employee has ceased performing such functions to administer the alcohol test.

If a random selection period expires before the employee performs a safety-sensitive function, no alcohol test should be given, the employee's name should be returned to the pool, and the number of employees subsequently selected should be adjusted accordingly to achieve the required rate.

DOT Substance Abuse Testing Laboratory Certification

In 1988, the U.S. Federal government instituted the National Laboratory Certification Program (NLCP) to certify certain laboratories that perform substance abuse testing. These laboratories are the only ones permitted to perform drug testing for Department of Transportation purposes.

Managed by the Department of Health and Human Services (HHS), this program requires laboratories to meet certain stringent requirements in order to participate in Federal Workplace Drug Testing Programs.

To become certified, a laboratory must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a laboratory must participate in a quarterly performance testing program plus periodic on-site inspections.

A notice listing all currently certified laboratories is published in the Federal Register during the first week of each month. If any laboratory's certification is suspended or revoked, the laboratory will be omitted from subsequent lists until such time as it is restored to full certification under the Mandatory Guidelines. The list is available here: Federal list of certified laboratories.

DOT Document Retention Requirements for Employers

Employers are expected to maintain records of their DOT alcohol and drug programs and
are expected to keep those records confidential (in a secure location (with controlled access).

The DOT has specified record keeping requirements for each type of document. Note that the retention period for documents related to test results varies according to whether the test result was positive or negative.

For example, documents related to the reason for reasonable-suspicion testing must be kept for a minimum of two years. Documents generated in connection with decisions on post-accident tests (including why tests were not done, or not done promptly) must also be kept for at least two years.

Some of the documents that must be kept for at least five years are the employer's copy of the alcohol test form and the employer's copy of chain of custody and control forms (CCF's). Documents relating to previous employer alcohol and drug testing must also be retained for a minimum of five years.

A chart describing each of the required documents and the length of time that employers are required to keep them are listed found below:


RECORDS RELATED TO THE COLLECTION PROCESS

Documentation of reason for reasonable suspicion testing 2 years

Documents generated in connection with decisions on post-accident tests (including why tests were not done promptly) 2 years

Documentation verifying a medical explanation for the inability to provide adequate breath or urine for testing 2 years

Consolidated annual calendar year summaries (if required) 5 years

RECORDS RELATED TO THE DRIVERS TEST RESULTS

Employer's copy of the alcohol test form (all return-to-duty and follow-up test information should be kept for 5 years)
Retention Period if Negative/Canceled 1 year
Retention Period if Positive 5 years

Employer's copy of drug test chain of custody and control form (CCF) (all return-to-duty and follow-up test information should be kept for 5 years)
Retention Period if Negative/Canceled 1 year
Retention Period if Positive 5 years

Documents sent to the employer by the Medical Review Officer
Retention Period if Negative/Canceled 1 year
Retention Period if Positive 5 years

Documentation of any driver's refusal to submit to a required alcohol or drug test 5 years

Documents presented by a driver to dispute the results of a test
Retention Period if Negative/Canceled 1 year
Retention Period if Positive 5 years

Documentation of previous employer alcohol and drug testing
Retention Period if Negative/Canceled 3 years
Retention Period if Positive 5 years

Documentation of any other violations of drug use or alcohol misuse rules 5 years

RECORDS RELATED TO EVALUATIONS

Records pertaining to a substance abuse professional's (SAP's) determination of a driver's need for assistance 5 years

Records concerning a driver's compliance with an SAP's recommendations 5 years

Return-to-duty drug/alcohol tests 5 years

Follow-up drug/alcohol tests 5 years

RECORDS RELATED TO EDUCATION AND TRAINING

Materials on drug and alcohol awareness, including a copy of the employer's drug and alcohol policy
For duration of employment and for two years after ceasing to perform function

Documentation of compliance with requirement to provide drivers with educational materials, including the driver's signed receipt of materials
For duration of employment and for two years after ceasing to perform function

Documentation of supervisor reasonable suspicion training
For duration of employment and for two years after ceasing to perform function

Documentation of training for breath alcohol technicians
For duration of employment and for two years after ceasing to perform function

Certification that drug/alcohol training complies with all training requirements
For duration of employment and for two years after ceasing to perform function

RECORDS RELATED TO THE ADMINISTRATION OF ALCOHOL AND DRUG TESTING

Agreements with collection site facilities, laboratories, breath alcohol technicians, medical review officers (M ROs), and consortia 5 years

Names and positions of officials and their role in the employer's drug and alcohol testing program 5 years

Semi-annual statistical summaries of urinalysis received from certified labs (Sec. 40.111) 5 years

Employer's alcohol and drug testing policy and procedures 5 years

The Six Types of DOT Drug and Alcohol Tests

The six types of DOT required tests are Preemployment, Random, Post Accident, Return-to-Duty, Reasonable Suspicion, and Follow Up. It is important for employers to understand the difference between the test designations so that they order the correct one. The type of test that is ordered affects the company or consortium statistics and can also have an important effect on the donor.

Preemployment Testing is performed for new drivers that do not yet work for the company that is ordering the test. The DOT requires that drivers complete a negative drug test before they begin driving for a new company. A Preemployment test should also be completed for any driver has not worked for the company where they are employed as a driver for more than thirty days. For example, if a driver is laid off and removed from a company's driver pool for 30 days or more, they must be preemployment tested again before they can return to work in a safety-sensitive position.

Random Testing is performed on all drivers in the random testing pool. Random testing should be unpredictable and unannounced and drivers can be randomly tested on any day and at any time, as long as they could drive on that day. A driver who has the day off can not be randomly tested on that day.

Post Accident Testing is done only after an accident that requires a test per DOT regulations. In all cases, post accident testing requires both a drug and alcohol test. Return-to-Duty Testing is performed usually only once for a driver; after that driver who has had a positive drug or alcohol test. The driver must have successfully completed a Substance Abuse Professional's evaluation and participated in any assistance program prescribed. Any driver that has had a positive drug and/or alcohol test, cannot drive until they have passed a Return-to-duty drug and/or alcohol test.

Reasonable Suspicion Testing is performed when a supervisor has come to believe that a driver may be using drugs or alcohol. The employer's reasonable suspicion must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver.

Follow-up Tests are only performed as part of a rehabilitation program for a particular driver. The driver has failed a drug or alcohol test and been evaluated by a (Substance Abuse Professional) SAP. The driver has completed a negative Return-to-duty Test and is back to work. Follow-up Tests are performed on a random basis based on a schedule set forth by the SAP. The DOT requires that no less than six follow-up tests take place in the twelve month period following a positive drug test. Follow-up testing may be done for up to 60 months.

Disclosing DOT Drug and Alcohol Testing Information

In the DOT drug and alcohol testing program, employers and service agents are not required to obtain written employee authorization to disclose drug and alcohol testing information where disclosing the information is required by 49 CFR Part 40 and other DOT Agency & U.S. Coast Guard drug and alcohol testing regulations.

These regulations provide for confidentiality of individual test-related information in a variety of other circumstances. An employer or service agent in the DOT program may disclose the information without the written authorization from the employee under many circumstances. For example:

• Employers need no written authorizations from employees to conduct DOT tests.


• Collectors need no written authorizations from employees to perform DOT urine collections, to distribute Federal Drug Testing Custody and Control Forms, or to send specimens to laboratories.


• Screening Test Technicians and Breath Alcohol Technicians need no written authorizations from employees to perform DOT saliva or breath alcohol tests (as appropriate), or to report alcohol test results to employers.


• Laboratories need no written authorizations from employees to perform DOT drug and validity testing, or to report test results to Medical Review Officers (MROs).


• MROs need no written authorizations from employees to verify drug test results, to discuss alternative medical explanations with prescribing physicians and issuing pharmacists, to report results to employers, to confer with Substance Abuse Professionals (SAPs) and evaluating physicians, or to report other medical information (see §40.327).


• SAPs need no written authorizations from employees to conduct SAP evaluations, to confer with employers, to confer with MROs, to confer with appropriate education and treatment providers, or to provide SAP reports to employers.


• Consortia/Third Party Administrators need no written authorizations from employees to bill employers for service agent functions that they perform for employers or contract on behalf of employers.


• Evaluating physicians need no written authorizations from employees to report evaluation information and results to MROs or to employers, as appropriate.


• Employers and service agents need no written authorizations from employees to release information to requesting Federal, state, or local safety agencies with regulatory authority over them or employees.

HOLIDAY OFFICE CELEBRATIONS- Tips for fun and safe parties

Many companies schedule a celebration during the holidays. Everyone appreciates a little R&R and the chance to interact with coworkers in an informal and relaxed atmosphere. Employers should be aware however of their liability, even during party time. If alcoholic beverages are provided at office social functions, state laws regarding their use and resulting legal responsibilities must be considered.

The following tips can help employers achieve the correct balance of fun and safety.

• First of all, ensure that employees understand that your workplace substance abuse policy applies to any work-related situation, including office social functions. Prior to the office party, you may want to remind employees of your policy and communicate concerns.


• If you decide to serve alcohol, make sure all employees know that you want them to attend and have a good time, but that they are expected to act responsibly. Make sure there are plenty of nonalcoholic beverages available.


• Appoint party managers to keep an eye on the festivities and remind them that even at an office party, they may need to implement the company's alcohol and substance abuse policy.


• Food and Snack Tip: Greasy and sweet foods tend to make people thirsty. Try to provide some foods rich in starch and protein which stay in the stomach longer and slow the absorption of alcohol in the bloodstream.


• Anticipate that you may need to arrange for alternative transportation for some partygoers. Be sure that there are enough designated drivers to get everyone home safely. You can also encourage employees to make use of alternative transportation, where available, if they consume alcohol.


• Stop serving alcohol well before the party officially ends.

California Medical Marijuana and DOT Drug Testing

It is legal in California to obtain a prescription for Medical Marijuana and use the drug. If a D.O.T. driver's drug test result is positive for Marijuana, how does the employer know if they can continue to employ the driver?

Although it is legal for someone to use Marijuana in California if they have a prescription, it is not legal for the driver of a commercial motor vehicle to test positive for the drug. The Department of Transportation is a federal agency, and federal regulations supersede state laws.

When an employer receives the results of a drug test and the test is positive for Marijuana, the tested driver must be immediately removed from any safety-sensitive functions and cannot return to performing them until after the review by a Substance Abuse Professional and a Return-To-Duty negative drug test.

When the laboratory reports the positive Marijuana drug test to the Medical Review Officer, the MRO contacts the donor by telephone. At that time, if the donor says that he has a legal prescription for Marijuana, the MRO will inform him or her that they have failed the drug test and cannot perform a safety-sensitive function until they have stopped using Marijuana.

The MRO will report the drug test as positive for Marijuana to the employer. Before the driver can be employed in a safety-sensitive position again, they will need to follow the D.O.T. protocol which is as follows:

• The driver will need to be evaulated by a Substance Abuse professional.
• The driver will have to complete a Return-to-duty drug test with a negative test result.
• The driver will be subject to no less than six follow-up tests in the next twelve months.

The Difference Between DOT and Non-DOT drug testing

The Department of Transportation carefully researched and analyzed drug testing programs before they wrote the Federal Regulations, know as 49CFR Part 40 into law. Among many factors, they considered:

• which drugs to test for
• what cutoff levels to use for testing
• whom should be covered under the regulations
• what types of tests should be required
• what procedures should be used for collections

The D.O.T. regulations are very specific and designed to cover all possible issues. Testing that is not regulated by D.O.T. can vary in many ways, including what drugs are tested for, the types of tests that may be administered, and what procedures will be used for collection and testing.

Some of the major D.O.T. requirements for testing are:

• Only specially approved laboratories are authorized to perform the testing.
• Only marijuana, cocaine, PCP, amphetamines, and opiates can be included in the drug test
• Alcohol testing may be done with one-use test devices or a breathalyzer, but confirmation testing requires a breathalyzer test.
  
• Breathalyzers must be certified for DOT use by SAMHSA.
• Alcohol testing must be performed by a certified Breath Alcohol Technician.
• Every positive screen drug test must be confirmed using a GC/MS laboratory test.
• A Medical Review Officer confirms every positive test, and only after speaking with the donor.
• Split Specimen testing must be used.
• Collectors must be trained and certified.

The D.O.T. has done an excellent job in creating a comprehensive and legally defensible testing program. Drug and alcohol testing being performed for purposes other than the Department of Transportation Substance Abuse Testing Program would do well to follow their guidelines.

D.O.T. Split Specimen Testing Requirements

All Department of Transportation urine testing requires that the collector split the specimen into two separate vials and send both to the SAMHSA certified laboratory for testing. Both specimens must be from the same collection.

When the laboratory receives the specimens, they put one of the vials through the testing process and place the second vial in storage. If the result of the test is "not negative", the second vial may be tested at a different SAMHSA certified laboratory if the donor requests it.

When a drug test is "not negative", the results are transmitted from the laboratory to the Medical Review Officer (MRO). Before a final result is determined, the MRO must speak with the donor to learn if he or she is taking a legally prescribed medication that could have produced the test result. If not, then the split specimen comes into play.

It is the MRO's duty to explain that the donor has the right to have the second vial tested at a different laboratory. This required D.O.T. procedure rules out any possibility of laboratory error. Although the regulations do not spell out who has to pay for the second test, they do specify that the donor has the right to request the test, even if they are unable to pay for it (obligating the employer to pay).

If the donor requests the split specimen test, the result from the second SAMHSA certified laboratory is then used.

D.O.T. Random Drug and Alcohol Testing Procedures and Employer Responsibilities

The Department of Transportation requires that random testing be completed in a manner that is unpredictable. Selections must be made "by a scientifically valid method, such as a random number table or a computer-based random number generator that is matched with drivers' Social Security numbers, payroll identification numbers or other comparable identifying numbers."

Employers are required to ensure that random tests are unannounced and spread reasonably throughout the year.Each time a random selection is made for alcohol and controlled substances testing, each driver in the pool has an equal chance of being tested, and each driver selected for testing should be tested during the selection period.

Employers are also expected to notify and conduct tests on drivers as soon as possible after the selection is made which is usually when the driver is first available at the employers' business place or terminal. Once a driver is notified that they have been selected for a random drug or alcohol test, they are required to report immediately to the location where the test will be administered.

If a selected driver is on vacation, laid off, or on an extended medical absence, the employer can hold the test until the driver returns, provided the driver will be tested before the end of the testing period. Of course, the driver should have no knowledge that they have been selected until just before they are to be tested. An alternate selection may be used if the selected driver cannot be tested in the testing period. In that case, the employer is required to keep documentation as to why the test on the first driver was not administered.

To calculate the total number of covered drivers requiring random testing for the year, you add the total number of covered drivers eligible for testing during each random testing period for the year and divide that total by the number of random testing periods.

Employee Rehabilitation Under Federal Drug Testing Regulations

Drivers who violate the alcohol misuse rules must be referred to a substance abuse professional for evaluation. Any treatment or rehabilitation would be provided in accordance with the employer's policy or labor/management agreements. The employer is not required under these rules to provide rehabilitation, pay for treatment, or reinstate the driver in his safety-sensitive position.

Any employer who does decide to return a driver to safety-sensitive duties must ensure that the driver:
1) has been evaluated by a substance abuse professional (SAP)
2) has complied with any recommended treatment
3) has taken and passed a return-to-duty drug test and/or alcohol test
4) is subject to unannounced follow-up tests.

The Role of the Medical Review Officer in Drug Testing

MRO stands for "Medical Review Officer." Many testing programs (and all Department of Transportation mandated testing programs) include an MRO, who reviews the drug test results from the laboratory before notifying the employer of the result.

The MRO can determine whether a positive drug test may be the result of a legally prescribed medication that an employee could be taking. MRO's are medical doctors who are trained in substance abuse and drug related issues. The MRO preserves the integrity of the testing process and protects the interests of BOTH the individual and the employer. Employers are not allowed by law to question their employees regarding medical history, but the MRO is.

The MRO contacts the donor and questions him about any medication that he might be taking. If the donor is taking medication that could have produced the positive result, he is asked to provide a copy of the prescription and other documentation.

The MRO is charged with making the decision of whether a drug test is positive or negative as a result of their investigation. The unique skills and information that they possess, insures that the correct result is provided to the employer. If an employee is taking medication that is legally prescribed, but still impairs the individual in the performance of their duties, the MRO will discuss this issue with the employer as well.

Marijuana Use By Workers- No Big Deal?

Some employers are not too concerned about the use of pot by their employees. They liken the occasional use of marijuana to having a couple of beers after work. There are some pretty glaring differences though.

Alcohol testing, using a breathalyzer, can detect current alcohol use and current impairment. Tests for marijuana however cannot determine current impairment. That means that the employer cannot determine if the employee smoked some pot at a party over the weekend, or whether they smoked it on the way to work!

Unlike alcohol, which is a legal and a regulated substance, marijuana is illegal and carries the risk of fines and imprisonment. An employee who possesses drugs at work, or in their vehicle, is putting themselves and the company that they work for at risk.

Private employers who request that their employees not be tested for marijuana, and only tested for other "harder" drugs usually reverse their decision after consulting with their lawyers and professionals in the substance abuse community. Marijuana and a good work environment are just not compatible.

Drug Testing Using Hair Follicles

All substances that flow though the body are taken into the hair follicle. For this reason, hair tests can detect the presence of drugs for a much longer period of time (90 to 120 days is typical) than other types of substance abuse testing. The period of time that can be tested is dependent on the length of the hair- hair typically grows about ½ inch per month.

The collection consists of a small amount of head hair which is cut off at the scalp. The laboratory needs about 20-30 hair strands (about the width of a shoelace tip) and the sample can usually be collected so that the sample site is not visible.

Hair testing has proven to be an accurate and legally defensible method of drug testing and results are not affected by bleaching or coloring of the hair. Hair follicle testing is not yet approved for D.O.T. drug testing programs, although it is under consideration.

D.O.T. urine drug testing procedures from collection to completed results

It is important to understand the steps involved before the employer, receives test results on Department of Transportation mandated urine drug testing. The D.O.T. procedures actually require the coordinated efforts of three separate entities before the test results are received by the employer.

1. The certified collector obtains the specimen and follows D.O.T. procedures in maintaining the chain of custody. The specimen is packed and shipped to the D.O.T. certified laboratory.

2. The laboratory performs the "screen" drug test at D.O.T. mandated cutoff levels. If the screen test is not negative, the specimen goes through a second "confirmation" test using Gas Chromatography/Mass Spectroscopy (GC/MS). Results are then forwarded to the Medical Reveiw Officer

3. The Medical Review Officer (MRO) reports a negative result immediately if the lab result is negative. If the lab result is positive, the MRO must contact the donor and discuss the results with him or her to determine if the donor is taking any prescribed medication that could produce the positive result, before releasing the results.

4. The MRO then releases the results to the employer or to the service agent that is performing the administration services for the employer.

D.O.T. Post-accident Testing Requirements

The Omnibus Transportation Employee Testing Act of 1991 requires drug and alcohol testing of safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines and other transportation industries.

Trucks and drivers are under the auspices of The Federal Motor Carrier Safety Administration. Under certain conditions drivers involved in traffic accidents may require drug and alcohol testing if there is a fatality, the driver receives a citation, or there is disabling damage to the vehicle.

As soon as practicable following an accident involving a commercial motor vehicle on a public road, each employer is required to test for alcohol and drugs each surviving driver when either:
the accident involved a fatality; or
the driver receives a citation under state or local law for a moving traffic violation arising from an accident that involved:
1) injury requiring medical treatment away from the scene, or
2) one or more vehicles having to be towed from the scene

The Department of Transporation requires that the drug and alcohol tests be performed within a two hour period from the time of the accident. If this is not possible, the employer is required to keep records as to the procedures that they followed to attempt to complete the required testing.

A flow chart that makes it easy to determine if testing is required can be found here: DOT post-accident testing requirments

Inquiring about an applicant's previous DOT drug and alcohol test results

What is an employer's responsibility when inquiring about an applicant's previous DOT drug and alcohol test results?

• Certified mail is not required.
• The employer can make this inquiry through a variety of means, including mail
(certified or not), fax, telephone, or email.
• However, the employer must provide the former employer the signed release or a faxed
or scanned copy of the employee's signed release.
• The former employer must respond via a written response (e.g., fax, letter, email)
that ensures confidentiality.
• The employer should document an attempt or attempts to contact and contacts with
previous employers.

QUESTION:
When a previous employer receives an inquiry from a new employer for drug and alcohol testing information, does the previous employer provide information it may have received from other employers in the past?

ANSWER:
As an employer, when you receive an inquiry about a former employee, you must provide all the information in your possession concerning the employee's DOT drug and alcohol tests that occurred in the two years preceding the inquiry.

It is not a violation of Part 40 or DOT agency rules if you provide, in addition, information about the employee's DOT drug and alcohol tests obtained from former employers that dates back more than two years ago.

Checking Previous Drug and Alcohol Testing Records of New Employees

Department of Transportation regulations for drug and alcohol testing, 49 CFR Part 40.25 requires employers to check on the previous two-years of drug and alcohol testing background of new hires and other employees beginning safety-sensitive work. Employers need the written consent of the applicant / employee to obtain these records.

There are two exceptions to the two-year records requirement. Employers covered under FMCSA regulations must seek three years of previous testing records. For employers seeking pilot information under the Pilot Records Improvement Act (PRIA), this is a five-year requirement.

Employers who hire safety-sensitive drivers regulated by the Department of Transportation are required to retain the drug and alcohol testing results of their drivers and provide them to any future employers upon request.

To assist employer compliance with this records check requirement, the Department of Transportation has a download link on their web site.

The form, entitled, Release of Information Form 49 CFR Part 40 – Drug and Alcohol Testing is located on the Employer page of the Department of Transportation web site.