What Employers Need to Know About Drug Testing
View Concentra’s Drug Testing Webinar
Check out our webinar, What Employers Need to Know About Drug Testing. During this presentation, we discuss:
- The different types of drug testing
- When and why to drug test
- Regulatory and non-regulatory drug testing
Michael Berneking, MD
Medical Review Officer
Dr. Berneking has practiced with Concentra for more than ten years. An experienced speaker, he is an active member of Concentra’s transportation industry medical expert panel, a certified medical review officer, and a senior aviation medical examiner.
Hello, and welcome to the Concentra webinar, “What Employers Need to Know About Drug Testing.” Today's webinar will be presented by Dr. Michael Berneking. Dr. Berneking has been has practiced with Concentra for more than ten years. He is currently a medical director at one of Concentra’s medical centers.
Dr. Berneking is a certified medical review officer (MRO), a senior aviation medical examiner, and an active member of Concentra’s concentric Transportation Medical Expert Panel, which is focused on health care issues related to individuals who serve the public in the transportation industry. At the conclusion of this presentation, we will have a 10-to-15-minute Q&A session with Dr. Berneking. You can submit your questions throughout the presentation to be answered during the Q&A session. Dr. Berneking will answer as many questions as possible within the time allowed. A recording of the webinar will be emailed to you after the presentation so you can view it again at your convenience. Dr. Berneking, we're ready to begin.
Thank you all for joining us today. I appreciate all of you taking the time to attend our webinar today. Hopefully, you will find this information valuable. Let’s go over the agenda quickly.
This is what we're going to be talking about today. We will touch briefly on all of these topics:
- Why Workplace Drug Testing Is Important
- Signs and Symptoms of Substance Abuse
- Benefits of Workplace Drug Testing
- When to Test
- What to Look for When Testing
- Drug Testing Specimen Types
- Collecting Test Results
- Regulatory and Non-regulatory Drug Testing
- What to Do If an Employee Tests Positive
- DOT Physicals
- CDL Drug and Alcohol Clearinghouse
- Workplace Drug Testing Best Practices
This will be more of an overview rather than getting into specifics. Also, we will focus primarily on federal regulated testing, but we will touch briefly as well on non-regulated testing in certain circumstances.
Please keep in mind that workplace drug testing is a very complicated issue and it is affected by not only federal law, but state and local statutes, as well. As always, please consult the relevant regulations that apply to your industry or your state or local area. If needed, consult with an attorney. Let’s start by talking about why drug testing is important. Drug use is a significant issue in this country.
For those of you who watch the news, drug use makes the news pretty frequently. It costs you money. If you're a business owner or an employer, it cost your business money - $740 billion are spent and, keep in mind, this is not just direct medical costs, but also includes lost productivity, absenteeism, increased health care costs in terms of your insurance. There are a lot of hidden costs, as well.
There is also a kind of misconception that people who use drugs fit a certain stereotype. That’s really not correct. Most people who are using illicit drugs are currently employed. They are productive members of your business and productive members of society.
When you look at the statistics, three out of every four people with drug or alcohol problems are currently employed. Some other statistics that we didn't put on the slide relate to a significant increase in drug testing positivity rates. It can be as high as 35 percent, depending on the industry. You can see that the 35 percent rate pertains to transportation and warehousing, but it goes across all industries. Overall, Quest Laboratories, one of the largest laboratories testing in the country, reports 5 percent of their drug tests are positive.
Marijuana is dominating this, but cocaine is making a comeback, as well. Opioids are going down due to, in large part, restrictions being placed on how those drugs are prescribed and dispensed to the community.
Here’s another telling statistic. In 2018 in the National Survey on Drug Use and Health, one in every five people who took the survey admitted to using an illicit drug within the last year. Think about that for a minute in your own life: one person in five has used illicit drugs. That’s 20 percent of people have used illicit drugs or misused prescription drugs within the last year.
Marijuana dominated participants’ responses, but prescription drugs were next. This includes not only people who may purchase prescriptions from other people, but people who misuse their household family members’ prescriptions, as well.
Let’s go on to what’s involved with substance abuse, what do you look for, and why do people do it. Those are all very complex issues. It's not just about getting high or having a good time, although that's certainly part of it.
But, a lot of times it's related to mental health issues. People will self-medicate for a variety of reasons. Some people take medications because they don't sleep well or because they're depressed. Other people, you know, have other reasons for it, but there’s a common thread. The slide outlines some of the things you may see in someone who is using or misusing substances. Please keep in mind, this is not an all-inclusive list, nor is it specific to drug use. These things can be associated with medical illness and mental illness, as well. But they should arouse concern and maybe increase focus on an individual who may be struggling in the workplace. They can also be a sign of job dissatisfaction, declining job performance, attendance issues, and things like that. (Factors on slide include: lack of focus, poor coordination, declining work performance, mood swings, chronic illnesses, poor attendance, poor physical appearance, and lethargy.) It may not just be them; it may be a family member. Again, we’re looking at these as warning signs.
So, why is it beneficial to drug test employees? Ultimately, the first bullet point is what you're looking at: drug testing is a deterrent program. Drug testing programs were developed to deter drug use. Big brother is watching, so don't do anything bad. Santa Claus is watching you, and he'll know if you're naughty. That’s deterrence. Other benefits are there. They are secondary benefits. (The slide includes: identify job candidates or current employees with drug/alcohol problems; reduce work-related injuries and related health care costs; reduce absenteeism and lost productivity; and protect the general public and the workforce.)
Please keep in mind, workplace drug testing is not a law enforcement program. You're not going to catch everybody. This is simply designed to deter substance abuse, and it gives you the benefits of helping to weed out some potentially poor job candidates who may have existing drug and alcohol problems. They may decide a don't want to take a drug test, so they won’t apply for a job that requires a drug test. If you can deter somebody from using drugs and alcohol, then you will hopefully have a safer, more productive work environment.
It's a healthier workforce with more people being present and, of course, ultimately safety is the whole reason why drug testing programs were mandated in the first place, in terms of federal laws. We need to deter people from using substances because it has a safety impact. That’s what we're trying to reduce: accidents and fatalities in the workplace. While we're on this slide, I'm going to define a couple of terms we will be using throughout the program here. There are some terms you will hear from time to time, and we should probably define those.
First, we talked about an MRO or a medical review officer. A medical review officer is a physician who reviews the results of a lab drug test. A medical review officer must be a physician – not a physician assistant, nurse practitioner, or any other physician extender. If a drug test report comes back from a lab and it is “not negative,” it is the job of the medical review officer to review that, usually interview with the donor, and make an informed medical decision about whether that drug test is positive or whether there is a legitimate reason for that drug test to be non-negative, and then it would be reported to the employer as negative. This serves to insulate the employer from having access to people's personal health information. It’s protection for everybody.
The medical review officer reports that information to the employer through the designated employer representative or the DER. Now that person is required to be a company employee. It can’t be contracted out to anyone, with the exception of company drug and alcohol programs managed by a consortium or a third party administrator (TPA/C). That is allowable for those types of programs. But if you have your own program, you can’t outsource the DER.
Finally, we're going to talk about a SAP or a substance abuse professional. A substance abuse professional is generally a mental health clinician – a physician, a social worker, a psychologist – who has additional Department of Transportation (DOT) mandated training in how to assess and follow people that have committed drug and alcohol violations of DOT regulations. They may be required to be part of this process if you are covered by the DOT in your workplace drug testing program.
So, we can move on to “When to Test.” We will talk about each of these in turn:
- Reasonable suspicion
All right, and then we can go to the next slide.
The first we're going to talk about is pre-employment. This is pretty obvious. You can extend the offer of new employment to an individual pending the results of a drug and/or alcohol test.
Now one of the places this could be used is for those of you who have individuals returning to work after a prolonged absence for illness, family reasons, leave of absence, military, or what have you, and your policy or the regulations require another drug test to enter safety-sensitive work. That should also be a pre-employment. It's often confused with return to duty, which we'll talk about later. But someone who is currently employed by you, who is coming back to work, and has not committed any kind of a violation, that person will get a pre-employment test.
Let’s talk about reasonable suspicion next. Reasonable suspicion is a little bit of a landmine. It’s obviously conducted when you have evidence or reasonable cause that a person may be impaired. It has to be immediately prior to, during the performance of, or immediately after performing safety-sensitive work.
So for example, if you see somebody impaired, and they're working in the office that day and not driving a truck, under federal regulations, that’s not really reasonable suspicion. It has to be associated with safety-sensitive work (on the regulated side). Now, on the non-regulated side, that's a different story. The slide says it has to be determined by direct observation from a supervisor or another employee. Certainly the other employee can be a whistleblower, so to speak. They can express concern, but they should not be the one making a determination that reasonable suspicion testing is in order. That should be a supervisor and, in the case of FAA, it requires two supervisors. The supervisor should have undergone specific training.
For FMCSA, that's 49 CFR 382.603 that you can see here. It outlines the required training – generally, it’s a couple hours of training that tells you what to look for and how to document that. The supervisor should document this in writing. Everything should be in writing. If the criteria are met, the individual should be taken right away to a testing site. It should not be done later.
Some of the examples of what to look for – that is, indications that lead to reasonable suspicion – include:
- Odor of alcohol on body or breath
- Slurred speech
- Unsteady standing or walking
- Disorientation or confusion
- Erratic or unusual behavior
- Inability or difficulty completing routine tasks
Also, if you observe use of alcohol or other substances. But, again, keep in mind there can be medical reasons for these behaviors, as well. That's why it's good to have an individual who is trained to do this and to document everything.
One other caveat with reasonable suspicion is this: voluntary admission of substance use or misuse under DOT regulations is not considered a violation. For example, if a driver comes into your office and says, “I need to talk to you. I have alcohol problem. I need to get into treatment,” that's not a violation. Now, if you hand him his notice of random testing and he says, “Well, hey, I can't do that. I’ve got a problem,” that is a violation because he or she waited until they were notified that they were about to be drug- or alcohol-tested, and then they confessed. So, that is still a violation. But, if it’s outside the notification or performance of a drug test, that’s not considered a violation – and then it's going to fall under your company policy.
One last thing on that, it is not a directly observed test under DOT. For regulated, it is not an observed test.
Post-accident testing is pretty straightforward. Many of you are aware that the Occupational Safety and Health Administration (OSHA) hasn't recommended not doing blanket post-accident testing on employees. That's really for the non-regulated sector. Certainly OSHA allows you to test post-accident. They're not restricting that in any way, but they do discourage blanket testing. If there's suspicion that drugs or alcohol may have been involved in an accident, absolutely – it’s appropriate. But, as far as the regulated environment, there are specific criteria.
For example, for the Federal Motor Carrier Safety Administration (FMCSA), if one of the vehicles is towed away or totaled, or if there's treatment away from the scene, obviously a death or fatality. So, there's certain criteria that have to be met for post-accident DOT tests. Every sub-agency, whether it’s the Federal Railway Administration (FRA) or another sub-agency, has their own criteria. But, that does not stop s company from having a policy to do a non-regulated test if the accident falls outside the DOT mandate. Please bear in mind, when you send an employee in on post-accident, be aware of which test you are ordering. Be familiar with the criteria of your agency if you are regulated.
If this was an accident, but it doesn't meet the DOT criteria, then they should be sending the employee for a non-regulated test. Again, you want to do this quickly. The longer you wait, the less likely you will be able to detect the substance. The longer you wait, the faster the stuff goes away.
Obviously, the employer determines when testing will occur. You’ve got to be careful with this. If somebody's in the hospital, and they can't consent or give a voluntary specimen, you've got proceed with caution. Again, it will vary a little bit depending on the agency. The Federal Aviation Administration (FAA), for example, has a lot more leeway in obtaining specimens than the FMCSA. So, we can go on to return to duty. We touched on this briefly.
This is required testing for someone who has committed a violation. So, when you're sending someone into a collection site, and you mark it as return to duty on the form, that means the individual has committed a violation of drug or alcohol testing rules. Again, return-to-duty testing is not for someone who has been off on a leave of absence for whatever reason. That’s pre-employment testing.
Return-to-duty and follow-up testing are both observed drug tests. That is, they will be done in the presence of a person of a same-gender observer. That's why it's important to mark this correctly. You can imagine somebody being sent in for a return-to-duty test who did not commit a criminal violation being very upset and confused about that. In the non-regulated world, state and local law applies. There are certain states that do not allow for return-to-duty or follow-up testing. Be knowledgeable about your state and local laws.
Follow-up testing is simply that. After a successfully passed return-to-duty drug test, there will be a series of follow-up drug tests. That's essentially a random deterrent. The SAP (substance abuse professional) who completed the employee’s return to duty process will dictate how often and how long the follow-up testing will take. It can be up to five years; it’s at least for 12 months, but it can go on longer. It’s at the discretion of the SAP, and the SAP will be communicating with the DER. These do fall outside of the requirements for a DOT physical.
However, if you have an employee who has committed a drug or alcohol violation, they are not fit for duty until they've completed the process. It’s not worth sending them in for a DOT physical until they’ve completed this process. If you're send them in, you should make the medical examiner aware that this individual has had a violation.
Last, we will talk about the random test random test. It’s just that. It's a truly random selection process. Most employers I know will have a computer that will select the employees for testing for them. Everybody's got to have an equal chance of being selected. Some people have the bad luck to be selected for testing multiple times in a row, and other people seem to never get selected. But, as long as it's a truly random process, then you're safe. It should be done quarterly in the case of regulated drug tests.
All DOT sub-agencies have their own random test rates. The FMCSA’s rate this year is 25 percent random drug testing and 10 percent random alcohol testing. FAA has the same. FRA (Federal Railway Administration), FTA (Federal Transit Administration), Pipeline and Hazardous Materials Safety Administration – they have higher rates right now. That varies from year to year. It's based on the positive test rate from the year before.
Drug testing consortiums are kind of linked to this. They are for the smaller companies and owner-operators who don't have enough employees to make a truly random pool. The DOT allows you all to pool your resources together and form a larger group of individuals. It can save you some money. It definitely ensures compliance, and it's ideal for the smaller companies. Larger companies tend to have their own their own program or outsource it to a third party administrator (TPA).
But, the consortiums are similar for the smaller business owner, which obviously makes up a very large proportion of our drivers on the road today – the smaller companies and owner-operators. So, we've talked about that. Now, we'll move on to what we're testing for. SAMHSA (Substance Abuse and Mental Health Services Administration) is part of the federal Health and Human Services Agency regulations drives drug testing in the United States. Their guidelines will be cascaded out to all different agencies including the Department of Defense, FMCSA, FRA, and all the DOT sub-agencies, to the labs. It sets the cut-offs, and so it’s pretty much all-inclusive. We’ll talk about what the lab tests for in the regulated setting, and then we'll talk briefly on the non-regulated setting.
You've all heard of a five-panel drug test, I'm assuming. You can see that the five-panel drug test covers amphetamines, THC, cocaine, opiates, and phencyclidine. I'll leave for your reference on the slide some of the slang terms. It's really five categories. You can see opiates covers a lot. It’s not just one drug. Opiates has been expanded now to the include the semi-synthetic opioids – that is pharmaceuticals, and that includes the hydrocodone, hydromorphone, oxycodone, and oxymorphone. That's a recent addition. Amphetamines will also include the synthetic amphetamines, such as ecstasy and some of its cousins.
That's what the federal tests look for. So, whether it's DOT or Health and Human Services, that's what this test looks for. The Department of Defense is a little bit different. They had some other things in there. Then you can see the 10-panel or 11-panel can expand that. The five-panel drug testing that is required, and only allowed, in the regulated setting, that is, the DOT setting, does not test for a lot of things.
For example, it doesn't check for those benzodiazepines which are anti-anxiety medications and can be used for sleep. It does not check for methadone, which is actually a specifically disqualifying medication on a DOT physical. It doesn't check for sleeping pills, hallucinogens. It doesn't check for synthetic THC. Now, you can test for those in the non-regulated world. Depending on what lab you're using, how you have it set up, and what the state and local policies are, you can test for anything.
That really boils down to what you're allowed to do by law and what you want to do to deter (substance) use in your working population.
Moving on now to what types of specimens you can collect. Urine is the big one, representing more than 95 percent of the drug testing that’s done in the United States today. The detection period for urine testing is listed as five-to-ten days. You can actually catch it within hours depending on the drug. Things that are rapidly metabolized may show up within hours. You can't rely on it. There's a lot of variability in how fast a drug shows up in in urine or hair.
This (urine) really is the gold standard. You can screen for just about any drug or a metabolite of that drug in urine. One of the issues that we commonly get from employers is asking about the level – how much of the drug or metabolite was in the urine or the hair or the blood? I would caution people that the levels are not helpful for anybody, myself as an MRO, included.
All it means is that there's something there. If somebody took and ate a marijuana-containing brownie and was tested two hours later, their levels may be very high, but they never ever have done it before.
Likewise, somebody may be using it chronically, but it shows up at a very low level just because the test happened at a time when they hadn’t used it in several days or hours. So, please use caution when looking at levels. It's not a smoking gun as to how much they're using. You're basically just looking at whether a drug is there or is it not? Let’s go on to hair testing.
Hair is a is an effective method for deterrence because it looks at such a long window, generally out to 90 days. The downside is that it takes some time to be incorporated into the hair and, therefore, it is not appropriate for post-accident testing. So, if somebody is in an accident, don't cut their hair. That's inappropriate. Get a urine test. But hair is a very good deterrent, which is why it is often used in the pre-hire setting.
Using hair, you can just about test for anything, including alcohol. There's also a test called an EtG test, and that can detect alcohol. Again, levels don't mean anything here. It just means that they are using it. Generally, the higher the level, the more often they're using it. But again, there are so many variables here, it's not a smoking gun. You could never convict somebody in court based on a level.
We're still a long way from using hair testing in the regulated world. A lot of that has to do with some of the basic science behind it and setting levels. There's some politics involved, as well. From here, we move to blood testing.
We don't use this very often. It's mostly used in the medical world. So, for example, if somebody is injured in an accident and comes into the emergency room and, as a physician, I suspect that drugs or alcohol may have been involved, I'm going to do a blood test. But, that’s a test that’s not admissible in court. I'm only using it to make medical decisions about how to take care of the patient. It's an invasive test; that is, you have to stick a needle in somebody. Therefore, it's discouraged and, in some cases, prohibited in the regulated world and definitely has some implications in the non-regulated world.
A blood test is very quick to detect drug use, and that's why, for example, some federal agencies may use it in the case of a very bad accident. You can get immediate results and you know that somebody used it right away. You'll have that result. You can use blood to detect just about anything, but it's not a routinely used test and should not be done without consulting appropriate legal and risk management folks.
Last, we're going to talk about saliva. This is a this is great test. I can't wait. It's not invasive at all. You avoid “shy bladder.” You don't have the guy who’s going to go sit in the lobby at the medical center for three hours because he's on the clock, and he doesn't want to take a drug test anyway, so he's going to make some money sitting on his butt. It's really fabulous.
It has a shorter detection period than urine (7 to 21 hours). Drugs get into the saliva faster than they can get into the urine, so you can check for about anything in saliva, but it's not quite there for regulated testing. That again goes back to some of the basic science, setting the cut-offs, but we're close. Congress did direct the government, in this case SAMHSA, to set up guidelines for saliva testing. So, it is there for non-regulated testing, but it's not quite there for regulated testing. But, I anticipate that within the year or two, to it will become an offering for you to be able to send your drivers or pilots or rail operators in to get a saliva test. That will mean less time in the clinic. It probably will be more expensive at the start. In the non-regulated world, again, just be aware that state and local law applies.
Let’s move on from talking about how you get the specimen to some types of specimens here, and regulated versus non-regulated testing. Collecting the test results: a rapid test is just that. The donor shows up and provides a specimen at the medical center. There’s a strip on the side of the electronic reader that says “yes” or “no,” is that drug there or is it not?
The advantage to this test is that it can rapidly clear somebody. Hey, I got a couple guys. I want to hire today, to put on a job. Go down to the clinic. Give me a specimen. If the test is negative, you can hire them. It’s really not very good though if the test is not negative. The reason is because this is an immunologic test.
It's a screening test, and there are legitimate medical reasons why a test can be positive on this rapid test. For example, there are some prescription drugs that will cross-react on this particular test.
I recommend, as a medical review officer, that you back up a non-negative rapid test with laboratory-based testing, particularly if you're going to be making decisions about discipline, hiring decisions, and firing decisions. A lab-based test is 100 percent. That's a specific test. If they come back and say there's THC in this lab-based test, then there’s THC. It's not a case of one of the drugs that can cross react. You leave that door open if you rely only on a rapid test in an employment or discipline or financially sensitive situation where somebody may be challenging those results from a legal standpoint. So we recommend that. It's not required by anybody. You cannot use this in a regulated setting. It's not approved under any circumstances. So regulated testing still goes to a lab.
Next, we’ll talk briefly about regulated drug testing, commonly refer to as DOT drug testing. This is a urine or breath alcohol test, and it's for safety-sensitive employees. This also includes people in Health and Human Services, and the Nuclear Regulatory Commission. The Department of Defense has its own, but it's still regulated.
All of the Department of Transportation sub-agencies you see listed there are also subject to regulated testing. How the test is done, all of the nitty-gritty, all of the fine details are spelled out in the regulations, down to how you collect the urine, how the medical review officers interpret results what happens with the results, privacy, all of it is spelled out in the federal code. It’s very reliable and it holds up in court. It’s a good starting place for the for non-regulated testing, if you're setting up your own policy. You can follow those guidelines and have your collection agents follow those guidelines when they're collecting urine on your employees. If they're using regulated collection guidelines, you can be assured that those are going to hold up if there's ever a challenge.
You can have both. If you are regulated employer that falls under one of these regulated industries, you can still have a non-regulated testing program because there are certain situations that may arise, such as the post-accident situation, where you're going to want to test an employee who doesn’t meet the criteria to be tested under the federal code.
So, you can have a non-regulated drug testing program for people who fall outside the federal code; however, please keep in mind that is then “regulated,” by not only your own internal policy, but it can be affected by collective bargaining agreements and it can be affected by state and local regulations.
In the non-regulated testing program, the employer determines what type of test and what to test for, 10-panel, 11-panel, five-panel, four-panel. We have some employers now that are not testing for marijuana, particularly in the states where it's legal or being decriminalized for recreational or medicinal uses.
But, there are multiple jurisdictions that have an impact. I’ll give you an example. California limits testing mostly to safety-sensitive workers. San Francisco has its own regulations, including one that prohibits doing post-accident, periodic, or random testing in San Francisco. In New York City, you cannot do pre-employment testing for marijuana. It’s illegal. In Idaho, you have to use a lab to confirm rapid results. Remember, we talked about that earlier. In Idaho, if you do a rapid test on an employee, and it has a non-negative result, you are required by law to send that to a lab. Boulder, Colorado has no random testing. Maine and Minnesota are very restrictive on drug testing. Again, we recommend consulting legal advice there. Vermont is the most restrictive. You can't do random testing, and you must have an employee assistance program, an EAP. Rhode Island is another restrictive state. You must be must be suspicious of impairment; employers have to pay for treatment; and the first-time positive cannot be automatically terminated.
So, those are just some examples. It gets even more complicated if, say for example, you're hiring a worker who lives in Michigan, but your company is based in Minnesota, and then you're going to send this employee to work in Tennessee for a couple weeks on a construction job. Which jurisdiction applies? I can't give you an answer off the top of my head. You need to consult legal advice.
There are a lot of regulations that can have an impact on the non-regulated world, and it can get kind of scary.
Your lawyer is the best example. Your medical review officer may or may not be familiar with all the laws. They are required, in the regulated world, only to be familiar with the states they work in, as well as Federal.
Let’s wind things down here with what to do if an employee tests positive. For DOT, it’s spelled out in the regulations. You have to remove the employee from safety-sensitive work. It doesn't mean you have to fire them. It doesn't mean they have to be disciplined. But they do have to be removed from safety-sensitive functions. They can't fly, drive, or operate a train. The employer must notify them that they have committed a violation and that they have to go through a return to duty process. That involves being seen by a SAP (substance abuse professional). You have to give them a list of suitable professionals in your area. Google does a pretty good job. But, it does not say you have to retain them as employee. DOT regulations are silent on that. That's subject to your own policy, which you should have in writing. Discipline, termination, all of those things, DOT is silent. It doesn't require you to, but it doesn't say you can't. It does not require you to pay for it, unless the state or local regulations, such as such as in Rhode Island, say you do. Collective bargaining agreements and other things may also affect that. But, even if you terminate them or are counseling them, you have to complete the return to duty process. Going forward, there will be a way to track that. We'll talk about the Clearinghouse in just a minute. Non-regulated is always going to be up to a policy. It should be in writing. You should provide written notice of those policies to the employee and, again, consult your risk management and legal resources to set up the policy.
DOT physicals are mentioned here. I know we had an earlier webinar that focused on those, so we’re really not going to touch on those much today. With DOT physicals, we're talking specifically about drivers, and that's regulated by 49 CFR 390 1.41 Pilots fall under different regulations. Obviously, even though they're technically DOT workers.
Drug and alcohol does affect DOT physicals. You should be having good communication with your examiners. If you have an employee who has committed a violation, make sure the employee discloses that to the medical examiner. It's not an automatic “no-go” for medical certification, but it's definitely something that an examiner will be concerned about and want to make sure that drivers healthy before they start doing safety-sensitive work for you.
So, we can go on now to the Clearinghouse, and that will be our last topic and then we will open it up for questions. The Clearinghouse is new. It’s here now. You should be registering, if you are:
- An employee
- A driver
- An employer
- An owner-operator
- A medical review officer
- A substance abuse professional
All have to register with the Clearinghouse. Registration is open now. This is only for FMCSA. If you're here, and you're regulated by a different DOT sub-agency, you're off the hook on this one. The reason that we're here and the FMCSA has moved to this is we're trying to close some loopholes. The classic example is the gentleman who goes in to get a job. He does his pre-employment drug test, doesn't pass, and decides, “Okay. I'm just not going to take this job.” He goes down the street to the next place and, after a few days, he passes that drug test and goes to work. But, nobody knew, other than the first employer who didn't hire him, that this guy had a violation and didn't complete the return to duty process. The first company just said, “Well, we're not going to hire you because you didn't you didn't pass. Here's your list of SAPs. Go do this.” The guy threw that in the garbage on the way out the door and said, “Nobody knows about that. I'm just going to go down the street and, you know, I'll just wait a few days, and I won't smoke any more weed for a few days. Then I'll go take another test and pass that test to drive.” The Clearinghouse closes that loophole. Things that are reported to the Clearinghouse are positive drug and alcohol tests, as well as refusals to take a test. The guy who skips out and doesn’t want to stick around for three hours a day or says the sample wasn't my urine, this is going to close that loophole.
And it makes sure that drivers follow through on their obligations under federal law to complete the return to duty process.
MROs report that information. Employees can see the information – that is, drivers. DERs and employers query the data bank before hiring. Although this aspect is not here yet, state driver's license agencies are required to query the Clearinghouse:
- When a driver comes in to renew a commercial driver's license
- When a driver is transferring the commercial driver's license
- When a driver is upgrading their driver’s license
The requirement for the states to do that has been put off for a couple of years to give the states time to get their computers to talk to the feds. But, that doesn’t mean the states can't do itnow. If their infrastructure supports it, they're free to start checking the Clearinghouse. Some states will do that. So if there is a violation, the state will not downgrade a commercial driver's license to a regular operator license. Drivers do have to consent to allow a perspective employer to do the database search. The states don't have to do that. If you want a driver's license in that state, they have the right to check it in the Clearinghouse.
The main thing is that everybody needs to make sure they’re registered. If you have a violation that hasn’t cleared, then the employer is not allowed to hire you.
In conclusion, let’s look at workplace drug testing best practices, which is our last slide. Make sure you know your industry regulations. The websites for DOT and the Office of Drug and Alcohol Policy and Compliance (ODAPC) are great resources for you. ODAPC has a great handbook called, “Guidance and Best Practices for Employers.” Make sure you have a written policy.
Put it in writing. Make sure it's vetted by appropriate risk management and legal resources. Provide training to the leadership. Provide training, especially if it’s required, to your supervisors. Make sure your workforce understands that. Don't put it in a binder, and shove it back in a cabinet, and forget about it until the worst thing happens. And you have to be consistent. Maybe Joe is a good guy, and you want to keep him around, but if your policy says you’ve got to let him go, then you’ve got to let him go – especially if you let Bob go because he was a slacker. When you caught him drunk, we're going to let him go, but you know John's okay. You’ve got to be consistent. If you're not, that opens you to some liability. With that, that is the end of the organized portion I have for you. I greatly appreciate everyone attending and listening. I hope this is that you all found this useful.