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Federal regulations largely impact company drug testing policies. Nationwide, employers in transportation fields are often required to adhere to rules and regulations defined by the Department of Transportation (DOT). The DOT regulations have clear language regarding circumstances under which drug and alcohol testing can or should be performed. These reasons include pre-employment, random, post-accident, reasonable suspicion, follow-up, and return to duty. Knowledge of which test is applicable for each situation is critical to maintaining compliance with the DOT regulations. Pre-employment Testing Pre-employment testing is the most common reason for testing. All DOT-covered employees must pass a DOT drug screen prior to working in a safety-sensitive position. The most common mistake employers make when it comes to pre-employment testing is prematurely hiring an individual before the employer receives a negative drug test result. To avoid this, the simplest way to think of pre-employment testing is post-offer, pre-hire. In other words, an individual’s employment is contingent on the prospective employer receiving a negative result. Employers who put employees to work in a safety-sensitive position prior to receiving a negative result are considered non-compliant. Random Testing Random testing is another staple for any DOT drug testing program. With random testing, there are a few key things an employer should consider. First, all participants in a random pool must have an equal chance of selection at any time. If an individual is selected for a random test in the first quarter, they must not be excluded from the pool of employees for the second, third, or fourth quarter random selection. Random selection rates are dictated independently by the agencies that fall under DOT, such as the Federal Motor Carrier Safety Administration (FMCSA), the Federal Railroad Administration (FRA), the Federal Aviation Administration (FAA), the Pipeline & Hazardous Materials Safety Administration (PHMSA) and the Federal Transit Administration (FTA). Next, random selections are completed using DOT-approved methodology. Contrary to what some believe, names are not drawn out of a hat, or selected by biased management. If a company is not using DOT-approved random selection software, it is not a true random selection, and they are not compliant with DOT regulations. Post-accident Testing Post-accident testing follows an accident as defined by the applicable DOT agency. Depending on the severity of the accident, DOT testing may not apply. Each DOT agency clearly defines what an accident is under their respective sections in the regulations. Often, companies will have policies dictating when non-DOT drug testing policies may be utilized to ensure impairment was not the cause of the accident, even if the accident does not qualify for testing at the DOT level. Regardless of the classification, the key thing for employers to remember with post-accident testing is to have the test completed as soon as possible. Additionally, any employee subject to post-accident testing should be escorted to the collection site. This is usually handled by a manager on duty or another employee in a supervisory role. Reasonable Suspicion Testing Reasonable suspicion testing is used when an employee is believed to be under the influence of a substance or impaired by a substance. Similar to other reasons for testing, DOT agencies may have different criteria for implementing this form of testing. For example, the FAA requires two supervisors of the employee, one of whom has completed signs and symptom training, to substantiate and concur in the decision to test the employee who is reasonably suspected of drug or alcohol use. The FMCSA differs because only one supervisor is necessary to make this determination. As with post-accident testing, some companies may develop a non-DOT protocol for reasonable suspicion testing should they not meet the criteria outlined by the DOT. This test should also be carried out as soon as possible and the employee should be escorted to the collection site. Return to Duty and Follow-up Testing Return to duty and follow-up testing occur only after a violation has taken place. Once an employee in a safety-sensitive position has failed or refused a drug screen, the only way they can return to safety-sensitive work, as defined by the DOT, is to complete an evaluation with a Substance Abuse Professional (SAP). The SAP’s responsibility is to evaluate the employee who violated a DOT policy, determine an appropriate rehabilitation program for the employee, and establish the frequency and duration of a follow-up testing program. Once the employee has completed the prescribed rehabilitation program, they must pass a return to duty test before performing safety-sensitive functions again and successfully complete follow-up tests for an appropriate period of time as determined by the SAP. The important thing for an employer to remember is that this type of testing is only used following a violation. If an employee is returning to work after an extended absence but no violation was committed, this would require a new pre-employment test. Conclusion It is safe to say that the DOT regulations clearly outline the reasons that an employer may test, but it is also important to understand that a non-DOT drug testing policy can define numerous other reasons that an employee may be required to test. DOT regulations will always come before a company’s non-DOT policy; however, an employee may be covered under both a DOT and non-DOT testing policy. This helps to fully protect an employer from potential substance abusers in the workplace. It is also worth noting that some state drug testing laws require employers to adhere to federal government drug testing procedures, sometimes referred to in a law as the “DOT” regulations, even if they are not mandated to comply with any federal drug testing regulations. In essence, 49 CFR part 40 of the federal regulations, where the DOT drug and alcohol testing procedures can be found, have become a de facto gold standard for lab-based drug testing. © 2010-2023 DrugPak – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of DrugPak. When permission is granted to reproduce this article in any way, full attribution to the author and copyright holder is required.
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This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.
The science and the practical day-to-day practice of screening job applicants and employees for substances of abuse have come a long way in the past three-plus decades. Today there are myriad drug testing methods to choose from including lab-based urine, oral fluid and hair testing, urine and oral fluid point-of-care devices that yield rapid results, and electronic chain-of-custody processes, all of which combine to give employers a multitude of options toward achieving their drug-free workplace objectives. But in the end, it always comes down to one thing: an accurate result. And when it comes to ensuring an accurate result, the hands-on, personal involvement of a certified medical review officer (MRO) is critical. The DOT regulations refer to the MRO as the “Gatekeeper” of the results. In their duties they have the right to review results and talk to donors. During the verification and review process they may also talk to certifying scientist at laboratories, talk with pharmacies, and have discussions with collectors or collection site managers. Back in the early 1990s there was a popular mantra among drug testing providers: "do it right or don't do it all." And the U.S. military is often credited as the origin of the saying regarding drug test results: "If in doubt, throw it out." The services of an MRO ensure that drug testing is done right and that there is no doubt about a final result be it positive or negative. For many years the gold standard of drug testing involved sending a urine specimen to a laboratory for analysis. If the initial screen was non-negative it would be confirmed at the lab with a second testing method, usually gas-chromatography/mass spectrometry (GC-MS). If it was confirmed positive, it would be reviewed by an MRO who would contact the donor to eliminate any legitimate explanations for the positive results before it was reported to the employer. Today, even with so many options available for how to conduct drug testing, the lab-confirmation process and MRO verification remain essential. Yet, some employers may be tempted to cut corners in an ill-advised attempt to speed up the process or save money by skipping the confirmation test or bypassing the verification of the result by an MRO. However, do so is a prescription for trouble as both confirmation testing and MRO review represent the right way to conduct drug testing and are actually required by many state drug testing laws. 3 Reasons to Use an MRO The use of a qualified MRO achieves three important objectives: 1. It establishes a layer of protection from liability for the employer. 2. It helps employers comply with legal requirements imposed by many state drug testing laws and federal drug testing regulations. 3. It helps avoid accusing someone of failing a drug test when, in reality, there was a legitimate medical explanation for a positive test result. Protecting the integrity of a drug testing program should be every employer's goal. MROs help achieve that objective. As they interview an individual whose sample is confirmed positive by the laboratory, they can discover something that results in a legitimate reversal of the confirmed result. One major drug testing provider who chose not to be identified by name shared that in the previous year MROs reversed 17% of confirmed positives from traditional 5-panel tests and 21% from expanded panels that included prescription drugs. Further, this company discovered that more than 70% of donors who test positive for prescription drugs can produce a valid prescription. This means that Medical Review Officers are doing a lot of work behind the scenes, most of which is never seen, but that is incredibly valuable. MROs also review custody and control forms to ensure proper collection protocols were followed during the collection process. Errors during the collection process can result in a test being cancelled. The MRO may ask questions regarding the collection process. State Laws Perhaps because of the reversal rate cited above, as well as other important reasons, some state drug testing laws require the use of MROs. When reviewing state drug testing laws consider these key issues: · A mandatory state law may or may not include an MRO-related requirement. If it does, look for the exact requirement. Some state laws mirror the federal regulations while others can be quite unique. · Look for non-drug testing laws that include drug testing requirements. Good examples are states with workers' compensation regulations that require the use of an MRO in order for an employer to move to deny or reduce workers' comp benefits. · Distinguish between mandatory drug testing laws and voluntary laws. Voluntary laws only apply to those companies that participate in the voluntary program. Many voluntary state drug testing laws follow federal drug testing procedures and, as such, require the use of MROs. · Finally, check whether a state requires MRO review of both positive and negative results. Following are a few examples of state laws related to MRO services: New York— the NY Department of Health requires that all drug test results be reported to an MRO prior to being released to an employer. This includes both positive and negative results. Maryland—the law specifically requires an MRO to review "pre-employment" initial screen positives. Industry-Specific Laws—In Virginia use of an MRO is required in the mining industry as well as in workers' comp cases. Kentucky also specifically requires the use of an MRO in the mining industry. Workers' Comp Laws— Alabama is one of several states that allow employers to challenge workers' comp claims based on a positive drug test. Employers in Alabama must conduct drug testing in accordance with the DOT regulations even when it's not a DOT testing situation. The DOT regulations, of course, require the use of an MRO. Other states with similar laws include Arkansas, Illinois, and New Mexico to name a few. DOT Procedures Required—There are a number of states that require employers to follow the procedural elements of the Department of Transportation (DOT) regulations in non-DOT drug testing situations. For example, as part of Tennessee's voluntary drug testing law participants in the state workers' comp discount program must follow DOT testing standards including using an MRO. The same is true in Wyoming among others. It is not uncommon for employers conducting non-regulated testing to request that their MROs follow DOT procedures wherever possible. The DOT regulations include a requirement that MROs review negative test results as well as positive results. The review of negative drug tests can provide protections for both the employee and the employer. Conclusion The science of drug testing is typically beyond legal challenges these days. But that does not mean that such a challenge is impossible. In the event of a legal challenge, employers do not want to try to defend a drug test result that has not been verified by a certified MRO who can attest to the integrity of both the result and the procedures that were followed in producing that result. Regardless of state law requirements, it is always wise to include the services of a Medical Review Officer in a workplace drug testing program. © 2010-2023 DrugPak – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of DrugPak. When permission is granted to reproduce this article in any way, full attribution to the author and copyright holder is required. This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.
As an employer, successful hiring is paramount and countless checks and balances are put into place to identify the most qualified candidates. Once the candidate is selected there are generally a series of events in place to verify the decision made by the employer which may include background checks, physical examinations, and drug testing. These additional safeguards ensure safety is considered when onboarding new employees. Imagine This It has been several months since the new hire has started and you learned the employee regularly uses marijuana for medical purposes and s/he has an addiction to pain killers, a controlled substance which wasn’t included in the testing panel prior to their start. Additionally, the company expanded and opened several new locations in various states throughout the U.S. The good news is the company has a written policy in place testing for marijuana, but do the same rules apply for medical marijuana? Do the rules vary by state? What about adding additional substances such as commonly abused pain medications? How do you proceed? The importance of Program/Policy Evaluations As with any process you implement to enhance efficiency or reduce compliance risk, it is important to revisit it periodically to determine if it remains as effective as when it was first applied. Evaluating your current process, understanding drug testing requirements, and keeping up with best practices can reduce the risk of adding a drug-abusing employee to your team. Evaluations provide key information at all stages of drug-free workplace program development and ensure program effectiveness. The evaluations process should begin at the onset of your drug-free workplace program. When implementing or revising a drug testing program, it is vital to understand what kind of program bests suits your business needs. There is also no single correct way to perform an evaluation of drug testing programs. What is best will depend on many factors, including what you want to know, what data you have available or can obtain, and the resources and time available to you. This article will highlight basic stages for a program evaluation that is essential for a successful and compliant testing policy. Program Implementation and Policy Development When developing a program, the first step is to identify your company’s drug testing objectives -what does your company hope to achieve by implementing a testing program? Will you accept medical marijuana use? Does your organization have a high prevalence of substance abuse problems? Are you mandated to comply with client contracts or with federal Department of Transportation (DOT) regulations? Perhaps you are interested in a program that allows an employer to receive a discount on workers’ compensation premiums or to deny unemployment or workers’ compensation claims? It is important to understand the nature of your workforce, the major problems and stressors that are affecting your employees, and the possible ways in which alcohol, prescription drugs and other drug misuse may be causing or contributing to those problems. Understanding your needs is paramount in creating a custom program designed specially to fit your program necessities. After you have identified your drug testing objectives, a policy is drafted that aligns with your business needs, company culture, and state and federal laws. Initial Evaluation After your program has been developed, baseline data considerations should be established. Baseline data has two purposes: (1) to show function; and (2) to determine if an improvement has been made. Basically, baseline data is going to tell you what road to take in addition to making sure you are continuously on the right track. This information gives you a foundation for comparison after you have developed your policy and program and set them in motion. To assist with the evaluation process, determine upfront what it is you want to learn from the evaluation. For example, do you want to know if the expected outcomes have been achieved; or if one component of the strategy was more effective than another? Is it a program goal to lower employee absenteeism? If so, document current employee absenteeism and evaluate the outcome at the end of the year or the determined evaluation cycle. Evaluation measurements can be used regularly to identify weaknesses in the program and to uncover best practices and improvement opportunities Be sure to link each goal to something measurable. Determine what goals mean and how they can be measured. It is common to have several different research questions for an evaluation, but it is important to be realistic in designing your evaluation questions. Too many or too complex questions may overburden the evaluation and cause it to lose focus. If necessary, design a more limited evaluation focused on key goals for the initial round and build in a more detailed evaluation as the next phase. Additionally, policy maintenance and program evaluations should be assigned to an individual or department. Identifying an owner for this project will make your investment in the drug testing program a more rewarding effort. Mid-Year Evaluation Mid-year is a good time to examine the process and compare baseline data to current data to determine the direction of the program objectives. At this point, evaluations are to ensure the program process is on track and to deal with any practical difficulties. Below are examples of the types of questions to ask to assist with the mid-year evaluation process:
Year-End Evaluation It is unlikely that any evaluation will conclude that a program is perfect. Use the results obtained from the evaluation to modify and improve your program. The benefits from an evaluation are obtained only when changes are made that advance the outcome of a program. Over time this process should lead to the development of an ideal program and in turn, improved programs should contribute to more effective and efficient processes. Once the program objectives are identified, all applicable state laws and federal regulations should be considered. If company polices have not been reviewed in a few years, most often companies will elect to start from scratch and create an all-new policy. It can be difficult to keep up with the changes in drug testing trends, industry standards, and federal regulations or state drug testing laws. There is no specific schedule that companies must follow, but best practice is to review your program and policy annually (at a minimum) for relevancy and accuracy. Over time, laws, company goals, objectives, and operational needs change, necessitating a review of the existing program and policy to follow suit. © 2010-2023 DrugPak – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of DrugPak. When permission is granted to reproduce this article in any way, full attribution to the author and copyright holder is required. |
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