DRUG AND ALCOHOL TESTING
THE DEVIL'S IN THE DETAILS
Little mistakes can be costly if you're audited - or sued.
Patricia Smith
Senior Editor
When compliance consultants at TransProducts/TransServices evaluate a client's drug and alcohol test program, they typically find one of three things: the company has a program administrator who knows the rules, the company has a program administrator who thinks he or she knows the rules, or the company has handed over complete responsibility to an outside service provider.
"A lot of carriers have a full-time safety director who understands the rules, who enjoys working with the complicated regulations, and who wants the company to be in compliance," says Wyatt Hammond, president of the Milford, Del., company. "We find very little wrong with their records."
The second carrier - the "we think we know" carrier - may be trying hard but is missing the mark, he notes. Especially in small companies, regulatory compliance is a part-time job held by someone who wears many other hats. Details often fall through the cracks and changes in the rules go unnoticed.
Handing the task to a service provider transfers the administrative burdens, but not responsibility. As Hammond stresses, there are many good consortiums and third-party administrators offering their services to trucking companies, but there are also some that don't know what's required for truck drivers and don't understand the unique operating requirements of most trucking operations.
"If a carrier hires a consortium to administer its testing program and that consortium doesn't comply with the regulations, it will be the carrier - not the consortium - who will get any fines that come out of a DOT audit," he warns.
Strict compliance with the regs isn't just about audits and possible DOT fines. "Liability should be the carrier's main worry," cautions Mike Rone, president of RMR Consultants, Flower Mount, Texas. "The DOT is not as big a threat as the possibility that one of your drivers will be involved in an accident and you'll have to defend yourself in court."
Rone is frequently called as an expert witness in lawsuits involving trucks. In almost every instance, he says, "the first question out of the plaintiff attorney's mouth is 'you will agree with me that the Federal Motor Carrier Safety Regulations are minimal standards?'"
As one fleet safety manager put it: "The devil is in the details. When it comes to compliance with safety rules, even little mistakes can cost you a fine or a court case."
Following are some examples of small mistakes that can have big consequences:
• No pre-employment drug test before putting a driver to work. As Hammond notes, many carriers are under the mistaken impression that they can put a driver on the road - or at least keep him busy on the loading dock - while waiting for test results. Not so, he says. There must be a record of a negative pre-employment drug test before you can assign that driver to any safety sensitive function.
One reason for the confusion is the rules do say you can forego the pre-employment test if the driver has been in a DOT testing program within the previous 30 days and has either been tested in the past six months or was part of a random pool for 12 months. But the rule also requires extensive documentation regarding the program and the driver's participation - and that documentation must be received before you can assign the driver to any safety sensitive function. Even if a driver provides a copy of his record from a previous employer, you need to get written verification.
• Failure to show you did all you could to get test information from previous employers. With the driver's consent, you must get information on failed or refused tests from previous employers going back two years. Unlike the pre-employment test rule, this one allows you to put a driver to work before a response is received, but you must be able to show that you made "every reasonable effort" to get it within 30 days.
The rules do specifically direct employers to provide that information when requested, but they're often overlooked. Considering the potential liability if that driver is involved in an accident, it's smart to do more than write or fax a letter and forget it.
Just about any consortium, service agent or drug/alcohol testing consultant will have pre-printed driver consent and information request forms specifying the rules and what's needed. Hammond suggests a multi-part form. One part is sent to the previous employer, a copy is placed in a tickler file for follow-up in a set time period.
"When you call, you've got the form right in front of you so you can record the date, time, person you talked to, and what was said," he explains. He also recommends that background requests be mailed with a stamped, self-addressed envelope to make it as easy as possible to reply. If a request comes back marked "undeliverable," attach the envelope to the form.
• Failure to ask a driver applicant if he/she has failed a drug or alcohol test. Rone says DOT added this requirement after realizing that queries to previous employers only applied to drivers who actually worked for those companies. Drivers who failed pre-employment drug tests were falling through the cracks.
Therefore, employers must ask new drivers if, during the previous two years, they have tested positive or refused to take a pre-employment drug test. "Yes" responses are probably rare, but if you get one you can't use that person in a safety-sensitive function until he/she has successfully completed the return-to-duty process (evaluation by a substance abuse professional, treatment, and return-to-duty drug tests).
RMR has added the rule, the question and a place for drivers to certify their answer on drug and alcohol consent forms all applicants must sign. Rone says it's important that employers document the question and the response.
"I guarantee that it's going to come up in a lawsuit," he warns, "and the trucking company will be held negligent because they didn't ask or couldn't prove that they asked."
• Choosing the wrong DER. Employers need to appoint a Designated Employee Representative who is authorized to take immediate action to remove a driver from safety sensitive functions when the driver fails or refuses a drug or alcohol test. Service agents can't act as DERs. This is also the person who receives test results for the company and performs other administrative tasks related to drug and alcohol testing.
One qualification is an aptitude for details and a strong desire to make sure the company is in compliance. It must be someone who can be trusted with confidential information. It should be someone the drivers trust and respect. "You don't want someone the drivers know goes out and parties every weekend," Hammond says.
• Not shopping carefully for service providers. Talk to several. Get three or four cost and service proposals. Rule out those that don't have experience in trucking and in-depth knowledge of DOT and FMCSA rules. When you ask for references, specifically ask for the names of clients that are about your size and have similar operations.
• Not updating driver files for random test selections. RMR maintains a consortium and, prior to every selection period, it has every member update its driver list. "They're supposed to notify us of additions and deletions but they get busy and forget," Rone says. Thus the driver pool isn't accurate, which could be a violation.
Whenever a driver is selected but not tested, you need to document the reason, he adds. "Maybe he had left the company, maybe he was on emergency leave or off for medical reasons, but those reasons have to be documented."
• Random testing below the minimum. The minimum annual rate is 50% of the average driver positions for drug testing and 10% for alcohol testing. Fleet managers often think they have an accurate average but are surprised when an auditor comes up with something different. For instance, says Rone, a fleet may normally employ 12 drivers but had a couple of months when it employed 14. The average comes out to slightly more than 12 and "you always round up," he notes. Thus they needed seven random tests instead of six.
Proving an accurate average is easiest if carriers prepare a driver list at the beginning of each month and put a copy in the testing file. Rone also suggests that carriers do a couple of extra random tests during the year just to make sure they're over the minimums.
• Failure to get proof that a test was taken. Drivers must be required to turn in the employer's copy of the chain of custody form or alcohol testing form. Otherwise, notes Rone, you don't know if he took the test or if he did so immediately after being notified. (The rules say a driver must go to the test site "immediately" after being notified of his/her selection for random testing, or "as soon as possible" if notified while performing a safety-sensitive function. Most carriers find it easiest to wait until a driver comes into a terminal before notifying them of their selection.)
• Failure to train supervisors - and document that training. The rules say that "all persons designated to supervise drivers" must receive 60 minutes of training on the signs of alcohol misuse and 60 minutes on drug misuse. Records of their training must be maintained for as long as they perform the functions and for two weeks after.
Rone recommends that the rule be applied broadly to include people like dispatchers who may not be designated driver supervisors. "It makes them aware of what the regulations are," he explains, noting that knowledge of what an employer must do and can't do under DOT rules may help prevent driver lawsuits or help in a carrier's defense.
• No written policy for drivers. Employers must provide drivers with educational materials that explain DOT and FMCSA drug and alcohol testing requirements as well as the company's policies and procedures for meeting those rules. This must include the name and number of the person designated to answer questions about the policy and procedures; the categories of drivers subject to testing; an explanation of "safety sensitive" functions so drivers know when the rules apply; prohibited conduct; circumstances under which drivers will be tested (i.e. pre-employment, random, post-accident, reasonable suspicion); procedures for testing; the government requirement that a driver submit to testing; an explanation of what constitutes a refusal and the consequences of refusal; the consequences of violating federal drug and alcohol rules; information about the effects of drug use on work, health, and personal life; signs and symptoms of alcohol or drug problems; available methods of intervention.
Employers may also include explanations of their own policies regarding the use of drug or alcohol and the consequences if violated.
Drivers must sign a receipt certifying that they received the materials. "If a driver is terminated for violation of company policy, you'd better have a signed receipt of that policy," Rone advises. "Keep in mind that one of the drivers' favorite phrases is 'I didn't know.'"
U.S. Department of Transportation and Federal Motor Carrier Safety Administration regulations regarding controlled substance and alcohol testing are detailed in parts 40 and 382 of the Federal Motor Carrier Safety Regulations. Copies are available at no charge via the Internet at the Rules and Regulations section of www.fmcsa.dot.gov.
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