designated employer representative (der) · 2019-11-11 · •previous employment inquiries...

Drug And Alcohol TestingProgram Training

Designated Employer Representative (DER)

For

DOT - Federal Motor Carrier Safety Administration (FMCSA) Industry

Training Module DERW-FM 13-12

This course will provide the user with an overview on:

Definitions used in Presentation Commercial Motor Vehicle Regulatory Background Regulatory Requirements Overview Regulatory Compliance - Citations Who is Covered

Safety-Sensitive Duties/Employees FMCSA Drug & Alcohol Program Regulatory Requirements Policy Components Training for Supervisors Designated Employer Representative (DER) – Duties &

Responsibilities

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA COURSE AGENDA

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The Collection Process Testing at the Laboratory Review by the Medical Review Officer (MRO)

Record Retention Reporting of Results in a Management Information System

(MIS) Federal Custody and Control Form Previous Employment Inquiries What Drugs Are Tested Types of Testing

Pre-Employment Random Post-Accident Return-to-Duty Follow-Up


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Actions Taken After A Verified Test Result Substance Abuse Professional (SAP) Negative – Dilute Test Results Direct Observation Testing Program Compliance - What Can You Expect if Audited Summary of Best Practices for:

Employer DER Supervisor

Best Practice Questions DOT Best Practices – Part 40 on “Refusals” Reference – WEB Links Web Access - Regulations


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DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSADefinitions used in Presentation

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Type of ServiceAgent

ResponsibilitiesWhere canI find their

qualifications?

DesignatedEmployer

Representative (DER)

An employee authorized by the employer to take immediate action(s) to remove employees from safety-sensitive duties, or cause employees to be removed from these covered duties, and to make required decisions in the testing and evaluation processes.

The DER also receives test results and other communications for the employer, consistent with the requirements of this part.

Service agents cannot act as DERs.

49 CFR Part 40Section 40.3


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qualifications?

Urine Collector

Collect urine specimens using Part 40 procedures, ships the specimens to Department of Health and Human Services (HHS) certified laboratories for analysis, and distribute copies of the CCF to the laboratory, MRO, employer, and employee in a timely manner. Collector required to maintain collection site security and integrity.


Laboratory

Receive, analyze, and report laboratoryconfirmed results only to MRO’s. The laboratory must be certified by Health and Human Services (HHS).



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qualifications?

Medical Review Officer (MRO)

Receive laboratory confirmed urine drug test results; determine whether there is a legitimate medical explanation for a laboratory-confirmed positive, adulterated, or substituted result; and review and report a verified result to the employer in a timely and confidential manner.


Screening Test Technician (STT)

Conduct an alcohol screening test (i.e., the first test given to an employee). It can be either a breath or saliva test. The STT documents the test result on an ATF and transmits the results to the employer in a timely and confidential manner.



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qualifications?

Breath Alcohol Technician (BAT)

Conduct alcohol screening and confirmation tests (i.e., the second test given to an employee whose screening test result is 0.02 or above) by collecting and analyzing breath specimens using an approved screening device and an evidential breath testing (EBT) device.


Substance Abuse Professional

(SAP)

Evaluates employees who have violated DOT drug and alcohol regulations and make recommendations concerning education, treatment, follow-up testing, and aftercare. The SAP determines if the employee demonstrates successful compliance with the recommended education and treatment.



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qualifications?

Collection Site

A place designated by the employer where individuals present themselves for the purpose of providing a specimen of their urine to be analyzed for the presence of drugs. Not to be confused with laboratory.


Consortium / Third Party

Administrator(C/TPA)

A service agent who coordinates a variety of drug and alcohol testing services for employers. These services can include random selections; preparation of annual Management Information System (MIS) reports; and coordinate urinecollections, laboratory testing, MRO services, alcohol testing, and Sap evaluations. A C/TPA must ensure the services it provides comply with DOT regulations and that its service agents are qualified.

49 CFR Part 40Subpart Q

A Commercial Motor Vehicle means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the vehicle:

Has a gross combination weight rating (GCVR) or gross combination weight of 11,794 kilograms or more (26,001 pounds or more), whichever is greater, inclusive of a towed unit(s) with a gross vehicle weight rating (GVWR) or gross vehicle weight of more than 4,536 kilograms (10,000 pounds), whichever is greater; or

Has a gross vehicle weight rating (GVWR) or gross vehicle weight of 11,794 or more kilograms (26,001 or more pounds), whichever is greater; or

Is designed to transport 16 or more passengers, including the driver; or

Is of any size and is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act (49 U.S.C. 5103(b)) and which require the motor vehicle to be placarded under the Hazardous Materials Regulations (49 CFR part 172, subpart F).

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA REGULATIONS – DEFINITION OF A COMMERCIAL MOTOR VEHICLE (FMCSA §382.107)

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DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA REGULATIONS – COMMERCIAL MOTOR VEHICLESFHWA Vehicle Classifications

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Final rules by the FHWY regarding Drug Testing were effective on December 21, 1988.

Omnibus Transportation Act of 1991 – required the DOT to establish testing regulations for drug and alcohol – within one year – and outlined what was to be included in those regulations.

1992-1994 Revised FHWY Rules – On February 15, 1994, final rules addressing alcohol and drugs were issued.

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA FEDERAL REGULATIONS – BACKGROUND

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New Drug testing regulations re-written to include:

All persons who operate a CMV and hold a CDL were subject to the regulations;

For new drivers, employers were required to obtain testing information for the three (3) proceeding years from previous employers;

A post-accident test was required after any accident in which there was a fatality, as well as for accidents in which the driver received a citation and there was a serious injury or substantial vehicle damage;

Requirements were established for return-to-duty and follow-up testing;


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Periodic testing was not required;

A split-sample urine collection procedure was required;

A driver testing positive was required to be evaluated by a substance abuse professional and follow any prescribed treatment program;

Employer policies and procedures explaining how the regulations were to be implemented were to be provided to each driver; and

60 minutes of drug testing training was no longer required for drivers.


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2000-2001: Part 40 Revisions – On December 19, 2000, the DOT issued a final rule completely revising Part 40 drug and alcohol testing provisions.

2001: Part 382 Revisions – On April 30, 2001 the Federal Motor Carrier Safety Administration (FMCSA), successor to the FHWY, issued proposed regulations to make them consistent with Part 40.

2004: Safety Performance History – FMCSA issued new rules affecting previous-employer investigation requirements for new applicants.


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Test Your Knowledge - True or False?

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If an employee as a result of a medical issue was issued a medical marijuana card, the employee would NOT be considered positive if he/she tested for it on a DOT test. TRUE or FALSE?

Recently, some states passed laws to permit use of marijuana for so-called “recreational” purposes. A covered driver tests Positive and due to the State’s new legislation, the driver would NOT be subject the DOT Drug testing regulations as they apply to marijuana. TRUE or FALSE?

Test Your Knowledge - True or False?

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If an employee as a result of a medical issue was issued a medical marijuana card, the employee would NOT be considered positive if he/she tested for it on a DOT test. TRUE or FALSE?

FALSE – Having a medical marijuana card issued does NOT excuse a covered employee from the DOT regulations.

Recently, some states passed laws to permit use of marijuana for so-called “recreational” purposes. A covered driver tests Positive and due to the State’s new legislation, the driver would NOT be subject the DOT Drug testing regulations as they apply to marijuana. TRUE or FALSE?

FALSE – State laws will have no bearing on the Dept. of Transportation’s regulated drug testing program. The Dept. of Transportation’s Drug and Alcohol Testing Regulations – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for ANY reason.

Review Of Requirements

For

DOT – FMCSA

Drug & Alcohol Testing Program

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• Companies must have a written policy (§382.601)

• Company must assign one or more employees to serve as a DER

• Provide employee(s) with educational materials

• Must have supervisor and manager training (§382.603)

• DER Duties & Responsibilities• Collection Process• Record Keeping Requirements• Management Information

System (MIS)• Federal Control & Custody Form• Previous Employment Inquiries• Pre-Employment Testing

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA REGULATORY REQUIREMENTS OVERVIEW

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• Random Testing• Reasonable Cause/Suspicion

Testing• Post-Accident Testing• Return-to-Duty Testing• Follow-Up Testing• Removal of a covered employee

(regulated)• Substance Abuse Professional

(SAP) Process & Duties• Direct Observation Testing• Access to regulations and updates

– DOT auto update regulations via

the WEB

Federal Motor Carrier Safety Administration (FMCSA) – Any person who operates/drives a Commercial Motor Vehicle (CMV).

The following regulations govern the transportation industry (highway) with respect to general FMCSA regulations and the required Drug & Alcohol Testing program regulations that employers must have in place and comply with.

49 CFR Part 382 Controlled Substances and Alcohol Testing

49 CFR Part 40 Procedures for Transportation Workplace Drug and Alcohol Testing Programs

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSAREGULATORY COMPLIANCE - CITATIONS

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DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA WHO IS COVERED? DOT (All Agencies)

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Under the Federal Department of Transportation, there are six (6) modes of transportation covered by the regulations. They include:

Federal Aviation Administration (FAA)

Federal Motor Carrier Safety Administration (FMCSA) – Any person who operates/drives a Commercial Motor Vehicle (CMV)

Federal Railroad Administration (FRA)

Federal Transit Administration (FTA)

Pipeline and Hazardous Material Safety Administration (PHMSA)

United States Coast Guard (USCG) under the Department of Homeland Security

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA WHO IS COVERED? DOT (All Agencies)

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DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSASAFETY-SENSITIVE DUTIES

TRANSPORTATION INDUSTRY

SAFETY – SENSITIVE DUTIES

Commercial Motor Carriers (FMCSA)

Commercial Drivers License (CDL) holders who operate a Commercial Motor Vehicle.

Aviation (FAA)

Flight crew, flight attendants, flight instructors; air traffic controllers at facilities not operated by the FAA or under contract to the U.S. military; aircraft dispatchers; aircraft maintenance or preventative maintenance personnel; ground security coordinators and aviation screeners.

Railroad (FRA)

Persons who perform duties subject to the Hours of Service laws; such as, locomotive engineers, trainmen, conductors, switchmen, locomotive hostlers/helpers, utility employees, signalmen, operators and train dispatchers.

Identifying employees needing to be tested - This table lists the types of Safety-Sensitive duties subject to DOT Drug and Alcohol Testing by industry:

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DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSASAFETY-SENSITIVE DUTIES

TRANSPORTATION INDUSTRY

SAFETY – SENSITIVE DUTIES

Public Transportation (FTA)

Operators of revenue service vehicles, CDL-holding operators of non-revenue service vehicles, vehicle controllers, revenue service vehicle mechanics, firearm-carrying security personnel.

Pipeline (PHMSA)Persons who perform operations, maintenance, or emergency response function on a pipeline or LNG facility regulated under 49 CFR - Parts 192, 193, or 195

Maritime (USCG) [Follows Part 40 for

Drug Testing, notAlcohol Testing]

Crewmembers operating a commercial vessel.

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A Company’s Drug & Alcohol

Testing program is comprised of three main

focus areas. Each having an integral

function for the success of the program.

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The DOT Agencies and USCG require employers covered under their regulations to have policies in place that fully explain their drug and alcohol program [§382.601]. The DER must fully understand the company’s drug

and alcohol policy.

Not only must you have policies, but you must also make them available to employees covered under your DOT program. Employees must sign for receiving a copy of the policy and educational materials.

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA REGULATORY REQUIREMENTS

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§382.601 Employer obligation to promulgate a policy on the misuse of alcohol and use of controlled substances.

(a) General Requirements. Each employer shall provide educational materials that explain the requirements of this part and the employer’s policies and procedures with respect to meeting these requirements.

1) The employer shall ensure that a copy of these materials is distributed to each driver prior to the start of alcohol and controlled substances testing under this part and to each driver subsequently hire or transferred into a position requiring driving a commercial motor vehicle.

2) Each employer shall provide written notice to representatives of employee organizations of the availability of this information.


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§382.601 Employer obligation to promulgate a policy on the misuse of alcohol and use of controlled substances. (cont’d)

(b) Required content. The materials to be made available to drivers shall include detailed discussion of at least the following:

1) The identity of the person designated by the employer to answer driver questions about the materials;

2) The categories of drivers who are subject to the provisions of this part;


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(b) Required content (cont’d)

3) Sufficient information about the safety-sensitive functions performed by those drivers to make clear what period of the work day the driver is required to be in compliance with this part;

4) Specific information concerning driver conduct that is prohibited by this part;

5) The circumstances under which a driver will be tested for alcohol and/or controlled substances under this part, including post-accident testing under §382.303(d);

6) The procedures that will be used to test for the presence of alcohol and controlled substances, protect the driver and the integrity of the testing process, safeguard the validity of the test results, and ensure that those results are attributed to the correct driver, including post-accident information, procedures and instructions required by §382.303(d);


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b) Required content (cont’d)7) The requirement that a driver submit to alcohol and controlled

substances tests administered in accordance with this part;

8) An explanation of what constitutes a refusal to submit to an alcohol or controlled substance test and the attendant consequences;

9) The consequences for drivers found to have violated subpart B of this part, including the requirement that the driver be removed immediately from safety-sensitive functions, and the procedures under part 40, subpart O, of this title;

10) The consequences for drivers found to have an alcohol concentration of 0.02 or greater, but less than 0.04 (BAC);


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b) Required content (cont’d)

11) Information concerning the effects of alcohol and controlled substances use on an individual’s health, work, and personal life; signs and symptoms of an alcohol or a controlled substances problem (the driver’s or a co-worker’s); and available methods of intervening when an alcohol or a controlled substance problem is suspected, including confrontation, referral to any employee assistance program and/or referral to management.


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(c) Optional provision. The materials supplied to drivers may also include information on additional employer policies with respect to the use of alcohol or controlled substances, including any consequences for a driver found to have a specified alcohol or controlled substance level, that are based on the employer’s authority independent of this part. Any such additional policies or consequences must be clearly and obviously described as being based on independent authority.

(d) Certificate of receipt. Each employer shall ensure that each driver is required to sign a statement certifying that he or she has received a copy of these materials described in this section. Each employer shall maintain the original of the signed certificate and may provide a copy of the certificate to the driver.


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The employer shall provide educational materials to the employee that explain the company policy with respect to the abuse of controlled substances and alcohol. The materials are to explain the provisions of §382.601.

The employer shall ensure that a copy of these materials is distributed to each driver prior to the start of alcohol and controlled substances testing under this part and to each driver subsequently hired or transferred into a position requiring driving a commercial motor vehicle.


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§382.603 Training for supervisors

Each employer shall ensure that all persons designated to supervise drivers receive at least 60 minutes of training on alcohol misuse and receive at least an additional 60 minutes of training on controlled substances use.

Supervisors do not need DER training specifically. They should however have full understanding of the company policy and a general understanding of the drug and alcohol regulations.


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§382.603 Training for supervisors

The training will be used by the supervisors to determine whether “reasonable suspicion” exists to require a driver to undergo testing under §382.307.

The training shall include the physical, behavioral, speech, and performance indicators of probable alcohol misuse and use of controlled substances.

Recurrent training for supervisory personnel is not required, but is recommended as a Best Practice.


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DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA DEFINITION: DRUG ADDICTION

Experts define drug addition as a strong, unceasing craving for a drug, even when the individual is aware of the risks and potential harm that the drug can bring about. Patients with a drug addiction will exhibit certain signs and symptoms of their condition, including:

• Mood swings• Anxious or restless behavior• Manic levels of energy• Theft or other unlawful behavior• Intense craving for the drug in

question

• Secretive behavior• Withdrawal symptoms experienced

when use stops• Developed a tolerance to the drug1

• Unable to stop despite knowing the harm caused2

1 In other words, they need more and more of the substance over time in order to obtain the desired euphoric or stimulant effect.

2In terms of their health, personal relationships, well-being and/or finances.

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A regulated employer must also designate a responsible party (an employee of the company) to serve as the Designated Employer Representative (DER) and to be readily available if the need arises.

Additionally, there should be an alternate DER to serve as a backup for adequate coverage on all shifts/locations should the need arise. An outside entity or vendor is NOT permitted to serve as the DER. (as per §40.3 & §40.15(d))


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The Designated Employer Representative (DER) is:(as per §40.3 What do the terms used in this part mean?)

An employee authorized by the employer to take immediate action(s) to remove employees from safety-sensitive duties, or cause employees to be removed from these covered duties, and to make required decisions in the testing and evaluation processes.

The DER also receives test results and other communications for the employer, consistent with the requirements of this part.


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Specific duties and responsibilities will include:

To be familiar with the entire testing process: Urine collection process:

What exactly takes place at the collection site? *

What paperwork is completed? Only a Federal DOT Custody and Control Form (CCF) may be used. Employers wishing to test a non-regulated employee must use a non-DOT Custody and Control Form (CCF).

What procedures are given to the employee by the collection site personnel? *

What procedures take place after the employee has provided his/her specimen? *

How is the collection process finalized if there are no problems? *

* explained in upcoming slides


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Specific duties and responsibilities will include (cont’d):

In the event of a problem, what does the collector do, who does he/she contact? *

Should a “direct observed” collection be requested, are you knowledgeable of the procedure? Are you prepared to send a company representative to serve as an observer?

There may be an occasion when a collector will not have the personnel available (e.g., personnel of the same sex) to serve as the observer. In this case, the collector would request the employer to send a representative to serve as the observer. It is important to remember that this individual must be instructed as to what the procedures will be concerning a “direct observed” collection.

What constitutes a “refusal to test” at the collection site? *

As a Best Practice, it is recommended to visit a collection site from time to time when your employees are there for tests to see for yourself how the process is going.

* explained in upcoming slides


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The Collection Process


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The Collection Process (cont’d)

During the collection process, a urine specimen collector will:

Verify the employee’s identity using a current valid photo ID

Create a secured collection site by: Restricting access to the site to only those being tested.

Securing all water sources and placing blue dye in any standing water.

Removing or securing all cleaning products/fluids at the collection site.

Afford the employee privacy to provide the urine specimen

Ask the employee to remove any unnecessary garments and empty your pockets (they may retain their wallet).

Instruct the employee to wash and dry your hands.

Select or have the employee select a sealed collection kit and open it in their presence.


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Request the employee to provide a specimen (a minimum of 45 mL).

Check the temperature and color of the urine.

In the employee’s presence, pour the urine into two separate bottles (A or “primary” and B or “split”), seal them with tamper-evident tape, and then ask the employee to sign the seals after they have been placed on the bottles.


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Important: Neither the employee nor the collector should let the specimen out of their sight until it has been poured into two separate bottles and sealed.

The collector will ask the donor to provide their name, date of birth, and daytime and evening phone numbers on the Medical Review Officer Copy (Copy #2) of the Federal Drug Testing Custody and Control Form (CCF).

This is so the Medical Review Officer (MRO) can contact them directly if there are any questions about their test.

Complete necessary documentation on the Test Facility (Copy #1) of the CCF to demonstrate the chain of custody of the specimen.

Give the Employee Copy (Copy #5) of the CCF to the employee and may suggest that they list any prescription and over-the-counter medications they may be taking on the back of their copy of the CCF (this may serve as a reminder for the employee, in the event that the MRO calls them to discuss their test results).


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Package and ship both sealed bottles and completed CCF to a U.S. Health and Human Services (HHS) certified laboratory as quickly as possible. If the donor is unable to provide 45 mL of urine on the first attempt, the time will be noted, and the employee will be:

Required to remain in the testing area under supervision of the collection site personnel, their supervisor, or a representative from your company,

Urged to drink up to 40 oz. of fluid, distributed reasonably over a period of three hours,

Asked to provide a new specimen (into a new collection container) If the employee does not provide a sufficient specimen within three hours,

the employee must obtain a medical evaluation within 5 days to determine if there is an acceptable medical reason for not being able to provide a specimen. If it is determined that there is no legitimate physiological or pre-existing reason for not providing a urine specimen, it will be considered a refusal to test.


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Testing at the Laboratory

At the laboratory, the staff will:

• Determine if flaws exist. If flaws (documentation errors, mismatched chain of custody #’s or broken or missing security seals) exist, the specimen is rejected for testing.

• Open only the “A” bottle and conduct a screening test. Specimens that screen positive will be analyzed again using a completely different testing methodology.

• If the specimen tests negative in either test, the result will be reported as a negative,

• Only if the specimen tests positive under both methods will the specimen be reported to the medical review officer as a positive test.

• Report the findings of the analysis of the A bottle to the Medical Review Officer (MRO).

• Store the A and B bottles for any reported positive, adulterated, or substituted result for at least 12 months.


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Testing at the Laboratory (cont’d)

Informational note:

The laboratory will conduct specimen validity tests (SVTs) to determine if the specimen was adulterated or substituted. Tests found to be adulterated or substituted are also reported to the Medical Review Officer (MRO) and may be considered a refusal to test.


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Review by the Medical Review Officer (MRO)

Upon receipt of the test result from the laboratory, the MRO will:

Review paperwork for accuracy.

Report a negative result to the Designated Employer Representative (DER).

If the result is positive, conduct an interview with you to determine if there is a legitimate medical reason for the result. If for example the employee was taking a legitimate prescription, the MRO would request proof of the usage by having the employee provide to the MRO a copy of the prescription label and/or a patient profile document as furnished by the pharmacy for the specific medication(s). If a legitimate medical reason is established, the MRO will report the result to the DER as negative. If not, the MRO will report the result to the DER as positive.


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Review by the Medical Review Officer (MRO) (cont’d)

If the result is an adulterated or substituted test, conduct an interview with the employee to determine if there is a legitimate medical reason for the result. If a legitimate medical reason is established, the MRO will report the result to the Designated Employer Representative (DER) as cancelled. If not, the MRO will report the result to the DER as a refusal.

Report a non-negative test result to the DER if: The employee refused to discuss the results with the MRO;

The employee did not provide the MRO with acceptable medical documentation to explain the non-negative test result.

Inform the employee that they have 72 hours from the time of the verified result to request to have your B “split” bottle sent to another certified lab for analysis for the same substance or condition that was found in the A “primary” bottle.


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Specific duties and responsibilities (cont’d)

Are you familiar with the Breath Alcohol Testing procedures? * Are you familiar with the operation of the evidential breath testing (EBT) device

(breathalyzer)? *

Do you have a pre-determined location set up for a test (EBT) should there be a need as well as contact information?

Should the Breath Alcohol Technician (BAT) call you with a problem, do you know what you must do?

A donor may not be able to provide a sufficient breath specimen for testing. In this case, the BAT will notify you of this problem, and it will be your responsibility to arrange for a medical examination by a physician. If the evaluating physician finds that there was no medical reason for the employee to provide an insufficient amount of breath, it is a refusal.

* Explained in upcoming slides


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Are you aware of how to receive Breath Alcohol results from the Breath Alcohol Technician (BAT), and what documentation is completed?

Documentation is conducted using the DOT Alcohol Testing Form (ATF) for regulated industry, a non-DOT Alcohol Testing Form for use in a company in-house program application.

If an Evidential Breath Test (EBT) was used for the initial screening test, based upon the test result which would be a numeric value, if the test result was anything less than 0.02 BAC, the test would be considered negative. On the other hand, if the test result was 0.02 or greater (a presumptive positive), there would be a second test (confirmation) performed to establish official test results.

Any result equal to or greater than 0.04 on this test is deemed a positive test. A test result greater than 0.02 and less than 0.04 would require the employee to be removed from safety-sensitive functions. The employee may not return to work until the start of the employee’s next regular duty period, but not less than twenty-four (24) hours following administration of the test.


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Do you know what the purpose of a Screening Test Technician (STT) is and the process involved for testing if utilized?

The STT performs the initial alcohol screening test. Based upon the test

results, there may be cause for a confirmation test to be conducted. Example: The STT uses an ALCO Screen 02 DOT saliva screening device (non-evidential test.) This unit is calibrated to indicate a positive test result at a blood alcohol concentration (BAC) of 0.02 or greater.

If this screening test indicated a “positive“ test result, the employee

would be required to go for a confirmation test which would be performed on an evidential breath testing (EBT) device (breathalyzer) by a certified Breath Alcohol Technician (BAT).


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Are you aware of your responsible for the training and proficiency of the Screening Test Technician (STT)?

As the DER, you would be responsible for the initial training and re-occurring training (DOT required every 5 years) for a STT. In the event that a test performed by an STT required the test to be cancelled because of an error caused by the STT, the DER would be responsible for the STT to undergo “error correction training.” This training would only apply to the subject matter area in which the error was caused by the STT.

Error-correction training must occur within 30 days of the date the STT was notified of the error that led to the need for retraining.

Note: If the error correction training is not accomplished within 30 days of the date the STT is notified, then the STT is out of compliance and cannot performfunctions as a STT for DOT alcohol screening tests.

Do you know what determines “Refusals to test”?

(Refer to Part 40 “DOT Best Practices”)


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Do you know what determines “Refusals to test”? (cont’d) Regulatory Follow upEffective 07/2014, the DOT issued guidance concerning “Refusal to test” as it applies to the collection site. The guidance is as follows:

Question: What happens if an employee leaves the collection site prior to the completion of the testing process?

Answer:• As noted in §40.191(a)(2), failure to remain at the collection site until the testing process is

complete generally constitutes a refusal to test.

• If an employee leaves the collection facility prior to the testing process being completed, the collector must inform the employer as required under §40.191(d). The employer, as required under §40.355(i), must then determine whether the employee’s actions constitute a refusal to test. To make this determination, the employer should consider the information documented on the CCF and the advice and information received from the collector and service agents, as well as any supporting information provided by the employee (i.e., in the event of a medical emergency, copies of hospital admission records/EMS records/police records, etc.).


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Do you know what determines “Refusals to test”? (cont’d)Regulatory Follow upAnswer (cont’d)

• The employer must document its decision, and the solid reasoning for the final decision, in all collection site refusal determinations. Copies of these decisions, and the information relied on in making those decisions, must be maintained in accordance with §40.333 and the applicable modal recordkeeping requirements. If during the course of an inspection, the DOT determines that you have not properly documented these determinations, you may be subject to penalty in accordance with these regulations.

The ultimate decision is decided by the employer/DER for this issue.


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Do you know what determines “Refusals to test”? (cont’d)

Regulatory Follow upAnswer (cont’d)

§ 40.355 What limitations apply to the activities of service agents?

As a service agent, you are subject to the following limitations concerning your activities in the DOT drug and alcohol testing program.

(i) Except as provided in paragraph (j) of this section, you must not make a determination that an employee has refused a drug or alcohol test. This is a non-delegable duty of the actual employer. You may, however, provide advice and information to employers regarding refusal-to-test issues.

(j) As an exception to paragraph (i) of this section, you may make a determination that an employee has refused a drug or alcohol test, if:(1) You schedule a required test for an owner-operator or other self-employed

individual, and the individual fails to appear for the test without a legitimate reason; or

(2) As an MRO, you determine that an individual has refused to test on the basis of adulteration or substitution.


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It is your responsibility for ensuring split specimen requests are honored. Do you know how that process is carried out?

In the event of a positive test, the MRO is required to inform the donor that he/she has within 72 hours to request a re-test of the split specimen of their test. If requested by the donor, the MRO will initiate the retesting and the split specimen will be sent to a different lab (may be same lab company or different) for testing at a different location other than where the original specimen was tested.

Congress gave the employee the right to have the split sample tested, so if the employee asks to have the split tested, the test must happen no matter who pays for it. No one can insist on payment before the test occurs, either. However, this issue should be clearly detailed in the company policy to establish who will pay for the split sample test. The employer may seek to recover expenses for the test from the employee/applicant.


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Specific duties and responsibilities (cont’d):

As the DER, you must ensure that observed collections take place as required.

As the DER, you must ensure no personnel action is taken against an employee for any cancelled tests.

The DER is responsible for compliance with 49 CFR, Part 40 and agency (DOT) regulations (mode specific). This includes any requests made by Federal and/or State regulators that may apply to your industry.

The DER will make all the required decisions in the testing and evaluation process. In your position and depending upon your company policy (whether or not you have a zero-tolerance policy), you may be interacting with the Substance Abuse Professional (SAP).


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The DER will coordinate physician referrals for “shy bladder” and “shy lung” situations.

The DER will ensure that all Safety-Sensitive employees and only Safety-Sensitive employees are in the random testing pool.

In the event that your company has decided to have a drug and alcohol

testing program in place for Non-DOT covered personnel, it is essential that you insure that the appropriate personnel are put into the proper random testing pool. Failure to do this can result in you NOT meeting

you DOT regulated random testing rates for a given year.

The DER will ensure that all random selections are completed for a given pull prior to the next random pull.


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The DER will be responsible that all random testing pools meet the required minimum annual testing rates.

The DER receives test results and maintains confidentiality of all test results for all employees, regardless of test results.

The DER will interact with collectors, BAT’s, STTs, the MRO, SAP’s, TPA’s, and DOT & agency officials when appropriate.

The DER will ensure that the required annual MIS reports are maintained and/or received for proper record keeping.

The DER will ensure for proper record keeping for drug and alcohol testing documents required.


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Test Your Knowledge - True or False

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Marijuana is the most widely used illicit drug in the United States. TRUE or FALSE?

A company DER may delegate the DER duties to a service agent. TRUE or FALSE?


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Marijuana is the most widely used illicit drug in the United States. TRUE or FALSE?

TRUE – Surveys show that marijuana IS the most common illicit drug used in the United States. Over three-quarters of all drug addicts use, or have used marijuana.

A company DER may delegate the DER duties to a service agent. TRUE or FALSE?

FALSE – as per §40.3 & §40.15, by definition of a DER, those duties may NOT be performed by a service agent.

As the DER, record keeping requirements vary depending upon the test results and/or specific type of document prepared. The following will detail the general record retention requirements:

Records to be maintained for One (1) Year: Negative and cancelled drug test results and alcohol test results with

a concentration of less than 0.02

Records to be maintained for Two (2) Years: Documents relating to the random selection process,

Documents generated in connection with decisions to administer reasonable cause/suspicion tests,

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA RECORD RETENTION – Responsibilities/Requirements

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Records to be maintained for Two (2) Years (cont’d): Documents generated in connection with decisions on Post-Accident

tests, including but not limited to: Copies of citation, if given,

Towing records,

Medical treatment documentation,

Copy of accident report.

Documents showing existence of medical explanation of inability of employee to provide enough breath for test.

Inspection, maintenance and calibration of EBT devices.


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Records to be maintained for Three (3) Years: Information obtained from previous employers under §40.25

concerning drug and alcohol test results of employees

Records to be maintained for Five (5) Years: Alcohol results of 0.02 or greater,

Verified positive drug tests,

Documents related to the refusal of any employee to submit to a required controlled substance test,

Documents presented by a driver to dispute the result of a controlled substances test administered under 49 CFR Part 382,

Employee referrals to a Substance Abuse Professional (SAP),

Records concerning a driver’s entry into and completion of the program of rehabilitation recommended by the SAP, & SAP reports.


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Records to be maintained for Five (5) Years (cont’d): Follow-Up tests and schedules for Follow-Up tests

The following records must be maintained for an Indefinite Period: Records related to the education and training of breath alcohol

technicians, screening test technicians, supervisors, and drivers shall be maintained by the employer while the individual performs the functions which require training and for two years after ceasing to perform those functions.


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General Types of Records - §382.401(c)

There are many documents that are “prepared” with concern to a Drug & Alcohol Testing program. Retention of these documents will vary as to whether or not a test is “Positive” or “Negative”. As a general rule, if a drug and/or alcohol test was Positive, the prepared documents would be retained for a five (5) year period. The DER must look at each document as it applies to the testing process and for which specific application to determine the retention period.

The DER must maintain the records in a location with controlled access. You must ensure that you can produce these records at your principal place of business in the time required by the DOT agency. For example, as a motor carrier, when a FMCSA inspector requests your records, you must ensure that you can provide them within two business days from the time of the request.


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§382.403 Reporting of results in a management information system.

An employer shall prepare and maintain a summary of the results of its alcohol and controlled substances testing programs performed under this part during the previous calendar year, when requested by the Secretary of Transportation, any DOT agency, or any State or local officials with regulatory authority over the employer or any of its drivers.

If an employer is notified, during the month of January, of a request by the Federal Motor Carrier Safety Administration to report the employer's annual calendar year summary information, the employer shall prepare and submit the report to the FMCSA by March 15 of that year. The employer shall ensure that the annual summary report is accurate and received by March 15 at the location that the FMCSA specifies in its request. The employer must use the Management Information System (MIS) form and instructions as required by 49 CFR part 40 (at § 40.26 and appendix H to part 40).The employer may also use the electronic version of the MIS form provided by the DOT. The Administrator may designate means (e.g., electronic program transmitted via the Internet), other than hard-copy, for MIS form submission. For information on the electronic version of the form, see:

http://www.fmcsa.dot.gov/safetyprogs/drugs/engtesting.htm


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§382.403 Reporting of results in a management information system. (cont’d)

When the report is submitted to the FMCSA by mail or electronic transmission, the information requested shall be typed, except for the signature of the certifying official. Each employer shall ensure the accuracy and timeliness of each report submitted by the employer or a consortium.

If you have a covered employee who performs multi-DOT agency functions (e.g., an employee drives a commercial motor vehicle and performs pipeline maintenance duties for the same employer), count the employee only on the MIS report for the DOT agency under which he or she is randomly tested. Normally, this will be the DOT agency under which the employee performs more than 50% of his or her duties. Employers may have to explain the testing data for these employees in the event of a DOT agency inspection or audit.


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§382.403 Reporting of results in a management information system. (cont’d)

A service agent (e.g., Consortium/Third party administrator as defined in 49 CFR 382.107) may prepare the MIS report on behalf of an employer. However, a company official (e.g., Designated Employer Representative) must certify the accuracy and completeness of the MIS report, no matter who prepares it.


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Federal Control and Custody Form - This procedure uses the Federal Drug Testing Custody and Control Form (CCF) for specimen collection. This procedure is used to document the handling of the urine specimen from the time the employee gives the specimen to the collector until the specimen is destroyed.

Previous Employment Inquiries – As of August 1, 2001, employers will be required to obtain drug and alcohol testing information on new hires intending to perform safety-sensitive duties. As a marine employer you must, after obtaining an employee’s consent, request the information from all previous DOT employers, about the individual, before 30 days has passed from the date that they first started performing safety-sensitive duties. The date of the request is recommended to be documented.

Inquiries whether, within the previous three (3) years, the applicant had violated the alcohol and controlled substances prohibitions under §40.25.


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Pre-Employment Inquiries: (cont’d)

The following information must be requested from DOT regulated employers who have employed the individual during any period during the three (3) years before the date on the employee application or transfer:

1. Alcohol tests with a result of 0.04 or higher.2. Verified positive drug tests.3. Refusals (including adulterated or substituted samples).4. Other violations of DOT drug and alcohol regulations.5. If an individual has violated a DOT drug and alcohol regulation, documentation of

the individual’s successful completion of the DOT return-to-duty requirements.6. Drug and alcohol information from previous employers.

Pre-Employment Testing – Employers are required to:

1. Conduct a pre-employment drug test; and2. Receive from the MRO a negative test result on the pre-employment drug test

for a person prior to using that person in a safety-sensitive position for the first time.


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DOT drug tests are conducted only using urine specimens. The urine specimens are analyzed for the following drugs/metabolites (5-drug panel):

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA WHAT DRUGS ARE TESTED?

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Marijuana metabolites / THC

Cocaine metabolites

Amphetamines (including methamphetamine, MDMA (Ecstasy), MDA, and MDEA)

Opiates (including codeine, heroin (6-AM), morphine), and

Phencyclidine (PCP)

DOT regulated employers may NOT test for any drugs other than what has been listed. If they wish to do so, it must be in a separate (Company) drug testing program apart from the DOT D&A testing program.

There are Five (5) types of testing under the DOT regulations and the DER must be knowledgeable of the requirements for each type:

Pre-Employment:Required as per DOT agency requirements. Employers must have a NEGATIVE test result prior to entering a Safety-Sensitive position for all modes of DOT.

Random:Once an employee has been hired, he/she must be placed into a random pool. All random tests are unannounced. Random testing rates are determined by specific DOT agency. An employee who has been selected for a random test, must proceed to the testing site immediately upon notification by the employer.

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA TYPES OF TESTING

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Random (cont’d):

It is important to remember that with respect to the random test selection process, that an employer who has received a random pull, insure that all random tests are completed before the next random selection.

If an employee was selected for a random test and that individual was out due to an illness, the employer may wait until the employee returns to have the test completed.

If however, it is expected that the employee will be out from work longer than 30 days, the employer should have that employee removed from the random pool, alert the individual or TPA responsible for the random selections of the removal, and have another random selection made for that random selection period.

Note: Any employee that has been removed from the random testing pool must have a pre-employment test performed (w/negative result) prior to being placed back into the random pool.


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DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA 2014 DOT Random Testing Rates

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DOT Agency2014 Random

Drug Testing Rate

2014 Random

Alcohol Testing Rate

Federal Motor Carrier Safety Administration

[FMCSA]50% 10%

Federal Aviation Administration

[FAA]25% 10%

Federal Railroad Administration

[FRA]25% 10%

Federal Transit Administration

[FTA]25% 10%

Pipeline & Hazardous Materials Safety

Administration

[PHMSA]

25% N/A

United States Coast Guard [USCG]

(now with the Dept. of Homeland Security)25% N/A

Random (cont’d):

Random tests are the key part of your drug and alcohol program since

they deter employees from using drugs and/or misusing alcohol. Each DOT agency sets the random rates for drug and alcohol testing in the industry it regulates. These testing rates are minimums. Employers may increase the random testing rate if they choose to do so.

Random tests allow for everyone having the same opportunity to be selected for all random selections regardless of any previous random testing history. Whether an individual has been selected ten times or never, every individual has the same chance of being selected as any other individual in the specific random pool.

What makes random testing so effective is the element of surprise. While employees know they will be tested, they never quite sure know when.


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DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA POST-ACCIDENT (FMCSA) REQIREMENTS 49 CFR Part 382.303

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Type of accident involved

Citation issued to the CMV driver

Test must be performed by employer

i. Human fatality (Hearse)

YES YES

NO YES

ii. Bodily injury with immediate medical treatment away from the scene (Nurse)

YES YES

NO NO

iii. Disabling damage to any motor vehicle requiring tow away (Tow)

YES YES

NO NO

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA POST-ACCIDENT (FMCSA) REQIREMENTS 49 CFR Part 382.303

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You are required by the DOT Agencies and USCG to conduct drug and alcohol tests following “qualifying” accidents (mode specific). The following table summarizes post-accident time-frames and specimens that must be collected:

DOT Agency Specimen Type Time Frame for Collection

FMCSA, FAA, FTA, PHMSA, USCG

Urine for drug testing. Up to 32 hours from time of event

FMCSA, FAA, FTA, PHMSA

Saliva or breath for alcohol screening; breath for alcohol confirmation testing

Within 2 hours, but cannot exceed 8 hours from time of event

FRA Urine for drug testing. Blood for drug and alcohol testing

Up to 4 hours from time of event, but may exceed time frame to collect specimen – in every case, a blood and urine specimen must be collected

USCG Breath, Saliva, or Blood for alcohol testing

Within 2 hours of the event. Up to 8 hours may be allowed if there are safety concerns to be addressed

Reasonable Suspicion:You are required to conduct a test for drugs or alcohol (or both) if a trained supervisor or trained company official believes or suspects an employee is under the influence of drugs or alcohol, or both.

The supervisor or company official MUST have been trained to recognize the signs and symptoms of drug and alcohol use. Testing cannot be required solely on a guess, hunch or complaint from another person or phone call tip. The suspicion must be based on specific observations by the supervisor or company official concerning the employee’s current physical appearance, behavior, speech, and smell (indicators) that are usually associated with drug or alcohol use.


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Return-to-Duty:After an employee has tested Positive for controlled substances and/or alcohol, the DER is responsible to:

Remove that individual from a Safety-Sensitive function,

Provide a listing of Substance Abuse Professionals (SAP) which includes names, addresses, and phone numbers. The employer is NOT obligated under the DOT regulations to pay for the SAP services.

No employee may return to duty until he/she has completed the SAP requirements (employee successfully complied with the recommended treatment and/or education) and had a Negative Return-to-Duty Test. This test is conducted under “direct observation.”

5-Year record retention for the Substance Abuse Professional (SAP) reports.


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Follow-Up:The SAP will also develop the employee’s Follow-up testing plan –outlining for the employer the number and frequency of Follow-up testing that will take place.

The employer is then responsible for ensuring that the employee is tested according to the SAP’s follow-up plan. These tests can be for drugs, alcohol, or both.

The SAP must direct at least six (6) unannounced Follow-up tests in the first 12 months after the person returns to safety-sensitive function duties. However, the SAP can direct more tests and may extend them for up to five (5) years. These tests are conducted under “direct observation.”


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84

If a company has their random pool setup to have pulls on a quarterly basis, an employee could be selected for a random drug test for each quarter. TRUE or FALSE?

All motor vehicle accidents require that a driver be drug & alcohol tested. TRUE or FALSE?


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If a company has their random pool setup to have pulls on a quarterly basis, an employee could be selected for a random drug test for each quarter. TRUE or FALSE?

TRUE – a random pool allows for every driver to be a potential pull for each selection period (quarterly). That is why it is called RANDOM.

All motor vehicle accidents require that a driver be drug & alcohol tested. TRUE or FALSE?

FALSE – As per §382..303(a)&(b), a driver is only subject to testing if the accident was a “qualifying” accident.

As an employer who receives a verified positive test result, adulterated or substituted drug test result, you must immediately remove the employee involved from performing safety-sensitive functions. You must take this action upon receiving the initial report of the verified positive test result. Do not wait to receive the written report or the result of a split specimen test.

As an employer who receives an alcohol test result of 0.04 or higher, you must immediately remove the employee involved from performing safety-sensitive functions. If you receive an alcohol test result of 0.02—0.039, you must temporarily remove the employee involved from performing safety-sensitive functions, as provided in applicable DOT agency regulations. Do not wait to receive the written report of the result of the test.

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA ACTIONS TAKEN AFTER RECEIVING A VERIFIED TEST RESULT

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After the employee has been removed from any safety-sensitive function position, the company/DER must provide the employee a list of qualified Substance Abuse Professionals (SAPs). This list must have SAPs who are suitable to you and readily available to the employee.

An employee who has tested positive for a drug and/or alcohol test may not return to performing DOT regulated safety-sensitive duties until he/she has: Undergone an evaluation by a Substance Abuse Professional; Successfully completed any education, counseling or treatment

prescribed by the SAP, or SAP recommendation to allow a Return-to-duty test prior to returning to service; and

Provided a negative test result for drugs and/or a test result of less than 0.02 for alcohol. (Return-to-duty testing)


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As part of the SAP’s final duties, he/she will prescribe a Follow-up drug and/or alcohol testing program for the employee.

Upon return to safety-sensitive function duties, the employee will be subject to unannounced testing for drugs and/or alcohol no less than 6 times during the first 12 months of active service with the possibility of unannounced testing for up to five (5) years (as prescribed by the SAP). These tests (including the Return-to-duty test) will be conducted under “Direct Observation.”

[Note: The company policy should address whether the employer or the employee/applicant will be responsible for the payment for the Return-to-duty and Follow-up tests as well as the Substance Abuse Professional (SAP) expenses.]


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§40.3 Substance Abuse Professional (SAP). A person who evaluates employees (face-to-face) who have violated a DOT drug and alcohol regulation and makes recommendations concerning education, treatment, follow-up testing, and aftercare.

The SAP represents the major decision point (and in some cases the only decision point) an employer may have in choosing whether or not to place an employee behind the steering wheel of a school bus, in the cockpit of a plane, at the helm of an oil tanker, at the throttle of a train, in the engineer compartment of a subway car, or at the emergency control valves of a natural gas pipeline.

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA SUBSTANCE ABUSE PROFESSIONAL (SAP)

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The SAP, after having prescribed assistance under §40.293, must re-evaluate the employee to determine if the employee has successfully carried out the education and/or treatment recommendations.

This is a SAP’s way to gauge for the employer the employee's ability to demonstrate successful compliance with the education and/or treatment plan.

The SAP evaluation may serve as one of the reasons the employer decides to return the employee to safety-sensitive duty.

As a SAP, for each employee who has committed a DOT drug or alcohol regulation violation, and who seeks to resume the performance of safety-sensitive functions, the SAP must establish a written follow-uptesting plan. The SAP does not establish this plan until after he/she has determine that the employee has successfully complied with the recommendations for education and/or treatment.

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA SUBSTANCE ABUSE PROFESSIONAL (SAP) cont’d

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The SAP must present a copy of this plan directly to the DER.

Aside from the evaluation and treatment of the affected individual, there are additional key points regarding the SAP:

The SAP must provide a written report directly to the DER highlighting his/her specific recommendations for assistance.

No one (e.g., an employer, employee, a managed-care provider, any service agent) may change in any way the SAP's evaluation or recommendations for assistance.

As an employer, you must not seek a second SAP’s evaluation if the employee has already been evaluated by a qualified SAP.

During the entire evaluation and treatment process, the SAP may speak with the employer/DER to apprise them of progress and to determine the best course of action for treatment or education, or both for the employee. Permission is not required by the employee for these conversations.

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA SUBSTANCE ABUSE PROFESSIONAL (SAP) cont’d

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Referral - Initial Evaluation – Successful Completion of Treatment ProgramRe-Evaluation – Return-to-Duty Testing – Follow-Up Testing Plan

What happens when an employer receives a report of a Negative-dilute specimen?

In accordance with §40.197, the following flow diagram will illustrate what is required under the regulations and actions the Designated Employer Representative (DER) will take with respect to dilute specimens.

Keep in mind that your company policy must address this issue and how you will treat “Negative-dilute” specimens.

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA NEGATIVE-DILUTE TEST RESULTS

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As an employer, you must direct an immediate collection under direct observation with no advance notice to the employee, if:

The laboratory reported to the MRO that a specimen is invalid, and the MRO reported to you that there was not an adequate medical explanation for the result;

The MRO reported to you that the original positive, adulterated, or substituted result had to be cancelled because the test of the split specimen could not be performed; or

The laboratory reported to the MRO that the specimen was negative-dilute with a creatinine concentration greater than or equal to 2 mg/dL but less than or equal to 5 mg/dL, and the MRO reported the specimen to you as a negative-dilute and that a second collection must take place under direct observation (see §40.197(b)(1)).

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA DRUG TESTING – DIRECT OBSERVATION (§40.67)

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In addition, as an employer, you must direct a collection under direct observation of an employee if the drug test is a Return-to-Duty or Follow-Up test.

When as a collector, you must immediately conduct a collection under direct observation if:

You observe materials brought to the collection site or the employee’s conduct clearly indicates an attempt to tamper with a specimen;

The temperature on the original specimen was out of range;

The original specimen appeared to have been tampered with.


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Direct Observation (cont’d)

There are a number of items that are available on the internet that individuals will attempt to use to cleanse the body system and/or or substitute a substance that will alter the results of a urine specimen for a drug test.

Desperate employees may use whatever they can including a prosthetic or other device designed to carry “clean” urine in order to pass a drug test. Some of the cleansing items are shown below:

As the employer, you must explain to the employee the reason for a directly observed collection as a result of the previously mentioned conditions.

[The observer must be the same gender as the Employee]

If the collector is not the observer, the collector must instruct the observer about the procedures for checking the employee for prosthetic or other devices designed to carry “clean” urine and urine substitutes AND for watching the employee urinate into the collection container.


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As the employer, you must explain to the employee the process that will be taken concerning an “observed collection.”

The observer will request the employee to raise his/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 any prosthetic or other devices designed to carry “clean” urine.

The company policy should reflect these procedures as a component. It is important that employees know the regulations as they apply to this subject and when a direct observation would be required. There should be no occasions where an employee is surprised concerning this issue. If necessary, the DER should be available should a collector call the employer informing them of an “observed collection” requirement to further explain the collection process required under the regulations to the donor.

Failure to comply with the procedures is a “Refusal to test” and the test will be treated as a POSITIVE. This should be conveyed to the employee so that the employee fully understands the consequences of a refusal.


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A 2008 Survey of Human Resources Professionals showed the following:

67% of the HR professionals surveyed believe that substance abuse/addictions is one of the most serious issues they face in their company.

The most significant problems that companies experienced due to employee substance abuse and addiction are as follows: Absenteeism (62%);

Reduced productivity (49%);

Lack of trustworthiness (39%);

Negative impact on the company’s external reputation (32%);

Missed deadlines (31%);

Increased health care costs (29%), and;

Unpredictable, defensive interpersonal relations (32%)

DID YOU KNOW?

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22% of HR professionals say their companies openly and proactively deal with employee substance abuse and addiction issues.

54% of HR professionals believe that getting employees to acknowledge or talk about the issue is their toughest challenge.

49% of HR professionals cited at least one of four personal obstacles to helping their employees with substance abuse and addiction issues:

Lack of experience in identifying substance abuse and addiction (20%);

Lack of information regarding treatment options (16%);

Personal discomfort in approaching employees about the issue (13%); and;

Not having enough time to deal with substance abuse and addiction issues (13%)

DID YOU KNOW?

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The purpose of an audit, inspection, investigation or compliance review is to verify that you are complying with Part 40 and appropriate DOT agency and USCG regulations, and applicable Federal Laws.

DOT program evaluators also determine whether your key personnel and service agents understand the program and implement your program correctly.

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA PROGRAM COMPLIANCE - WHAT CAN YOU EXPECT IF AUDITED

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In order to identify your program’s strengths and weaknesses, program evaluators will determine:

If your program is in compliance with the appropriate DOT testing regulation;

Whether or not you are appropriately following your DOT company policies;


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How correctly your service agents (TPA’s)and program personnel carry-out their responsibilities;

Whether or not your employees and supervisors receive appropriate education and training; For Supervisors – Reasonable Suspicion Training

Whether employees were removed from performance of duty following any violations, and

Whether or not you and your service agents have maintained proper and adequate documentation.


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Ensure that your company has the appropriate policy that follows all applicable regulatory requirements (§382.601 for FMCSA).

You follow that policy to the letter without any deviation on any issues.

You periodically review your policy and update it on a regular basis (5-years).

Your company has a DER and an alternate DER (for adequate coverage on all shifts/locations) and those individuals are properly trained.

Your supervisory personnel are properly trained with respect to Drug and Alcohol abuse training.

Do you have this properly documented?

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA SUMMARY OF BEST PRACTICES FOR THE EMPLOYER / DER / SUPERVISOR

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Have you provided the required employee training and documented it?

Are Pre-employment Drug tests performed for ALL employees hired and/or transferring to a position that is a Safety-Sensitive function?

Have you/DER established a process to update the random pool?

Do you have a policy for “Negative-Dilute” results?

Do you take actions on all Positives and refusals to test?

Would you be able to defend the company and your program in the event that you were challenged in court?

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA BEST PRACTICE QUESTIONSFOR THE EMPLOYER / DER / SUPERVISOR

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Should the appropriate DOT agency (FMCSA) decide to do an audit on you, would you be prepared?

Would you PASS?

Final thoughts with respect to your actions:

DOCUMENT … DOCUMENT … DOCUMENT

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA BEST PRACTICE QUESTIONSFOR THE EMPLOYER / DER / SUPERVISOR

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108

As an employer, you are required to provide a SAP evaluation or any subsequent recommended education or treatment for an employee who has violated a DOT drug and alcohol regulation. TRUE or FALSE?

Return-to-Duty and Follow-Up tests are performed the same as a Random test. TRUE or FALSE?


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As an employer, you are required to provide a SAP evaluation or any subsequent recommended education or treatment for an employee who has violated a DOT drug and alcohol regulation. TRUE or FALSE?

FALSE (§40.289(a)). You are NOT required to provide a SAP evaluation or any subsequent recommended education or treatment. You ARE however, required to provide names, addresses, and phone numbers for Substance Abuse Professionals to the employee. (§40.287)

Return-to-Duty and Follow-Up tests are performed the same as a Random test. TRUE or FALSE?

FALSE (§40.67(b)) – They MUST be conducted under direct observation

The DOT regulations outline refusals to test for drugs and alcohol. Some refusals are determined by MROs, BATs, STTs, or a physician. For others, the determination is your responsibility. All have clear instructions from the DOT.

You must base your decisions on these DOT instructions and NOT on personal opinions about whether the employee is a long-time reliable worker; has ever tested positive or refused a test; was correctly selected for the test; or claims to have misunderstood the collector’s instructions to remain at a collection site, among others.

The following is a list of Part 40 “refusals” and the DOT’s “Best Practices” for handling them.

DOT Best Practices – Part 40 on “Refusals”

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111

Event Decision Maker DOT Instructions

Fail to appear at a urine collection site when directed to report

Employer / DER *[after review of the collector

documentation]

If the employee did not get to the site or spent too much time getting there, it is a refusal.

Fail to remain at the urine collection site


documentation]

If the collector reports that the employee left the collection site before the testing process was complete, it is a refusal.

Fail to provide a urine specimen


documentation]

If the collector reports that the employee left the collection site before providing a required specimen, it is a refusal.

Fail to permit a monitored or observed urine

collection


documentation]

If the employer ordered an observed collection or if the collector required the collection to be monitored or observed, it is a refusal if the employee does not permit it to occur


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Fail or decline to take an additional drug test the

employer or collector has directed


documentation]

If the employer or collector directs the employee to take an additional test, as required or permitted by the DOT, and the employee does not, it is a refusal.

Fail to cooperate with any part of the urine

collection process


documentation]

Some examples of failure to cooperate are when the employee:1. Refuses to empty pockets

when directed;2. Behaves in a confrontational

manner that disrupts the collection process;

3. Refuses to remove hat, coat, gloves, coveralls when directed; or

4. Fails to wash hands when directed.


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For an observed collection, fail to follow the instructions or raise and lower clothing and

turn around


documentation]

If the employee does not follow these instructions so that the observer can check for prosthetic or other devices that could be used to interfere with the collection process, it is a refusal.

Possess or wear a prosthetic or other device

that could be used to interfere with the collection process


documentation]

If the employee is found to have or wear a prosthetic device designed to carry clean urine or a urine substitute, it is a refusal.

Admit to the collector to having adulterated or

substituted the specimen


documentation]

If the employee, during the collection process, admits to having tampered with his or her specimen, it is a refusal.


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Fail to appear for an alcohol test when directed to report

Employer / DER *[after review of the STT or BAT

documentation]

If the employee did not get to the alcohol test site or spent too much time getting there, it is a refusal.

Fail to remain at the alcohol test site


documentation]

If the STT or BAT reports that the employee left the collection site before the testing process was complete, it is a refusal.

Fail to provide an adequate amount of

saliva or breath


documentation]

If the STT or BAT reports that the employee left the alcohol testing site before providing a required amount of saliva or breath, it is a refusal.

Fail to undergo a medical examination or evaluation

as the employer has directed as part of the

insufficient breath procedures

Employer / DER

If the employer does not go in for a medical evaluation or does not permit it to occur, it is a refusal.


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Fail to sign the certification statement at

Step 2 on the ATF

Employer / DER[after review of the STT or BAT

documentation]

If the employee does not agree to have a test accomplished by signing Step 2 of the ATF, it is a refusal.

Fail to cooperate with any part of the alcohol testing

process

Employer / DER[after review of the STT or BAT

documentation]

One example of failing to cooperate is when the employee behaves in a confrontational manner that disrupts the alcohol testing process.

Fail to provide a sufficient breath specimen

Evaluating Physician

If the evaluating physician finds that there was no medical reason for the employee to provide an insufficient amount of breath, it is a refusal.


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Fail to provide a sufficient amount of urine

MRO

If the MRO finds that there was no medical reason for the employee to provide an insufficient amount of urine, it is a refusal.

Fail to undergo a medical examination or evaluation the MRO or employer has

directed

MRO

If the employee does not go in for a medical evaluation or does not permit it to occur, it is a refusal.

Adulterated or substitute a urine specimen

MRO

If the laboratory reports a confirmed adulterated or substituted specimen to the MRO and the MRO determines there is no medical reason for the result, it is a refusal.

Admit to the MRO to having adulterated or substituted

the specimenMRO

If the employee, during a medical review, admits to having tampered with his or her specimen, it is a refusal.

* IMPORTANT NOTE:

When a collector for a drug test, or STT or BAT for an alcohol test, reports a refusal event to the DER, the EMPLOYEE MUST BE REMOVED FROM SAFETY-SENSITIVE DUTIES, and after that you [or the DER] must verify if the employee actually refused the test based upon the documentation provided and DOT’s instructions.

When you [or the DER] determine that there is a refusal, do NOT return the employee to safety-sensitive duties until the SAP return-to-duty process has been successfully completed.

NOTE: An MRO’s refusal determination is final and not subject to your review. Also, an evaluating physician’s refusal determination for an employee’s insufficient breath is final and not subject to your review.


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Where can I get a copy of Part 40?

You can obtain a copy of Part 40 by contacting the website at:http://www.dot.gov/odapc/part40

Is there a website that gives me easy access to all the DOT’s program requirements?

Yes. Most things you and others who help you with your program need to know about the drug and alcohol testing requirements are available on the DOT website at:http://www.dot.gov/ost/dapc

There is also an ― Employer Page at: http://www.dot.gov/ost/dapc/employer.html

DESIGNATED EMPLOYER REPRESENTATIVE (DER) - FMCSA R E F E R E N C E – WEB LINKS

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Best Practice for Regulated Employers

Regulations concerning our industry are in a state of constant change. For this reason it is essential that employers, officers, supervisors and managers be kept abreast of the current regulations affecting their industry.

Aside from trade magazines or newsletter that you subscribe to, we recommend that you frequent the government websites that pertain to the specific regulatory areas which affect your operations. As regulations are revised they are posted on the government website. This affords you the most current regulations which will assist you in your compliance requirements.

The following screen shots are specific for the Office of Drug & Alcohol Policy and Compliance. We encourage you to visit these websites on a regular basis to ensure for compliance for your company.

DESIGNATED EMPLOYER REPRESENTATIVE (DER – FMCSA) WEB ACCESS - REGULATIONS

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Web Link to Office of Drug & Alcohol Policy & Compliance (ODAPC)

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Screen Shot for ODAPC: Resources for Key Persons – Drop down

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Screen Shot for ODAPC – Regulations and Interpretations – Drop down

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