Drug Free Workplace

• What do I need to do to implement drug testing in my company?
• After I've written a policy how soon can I conduct drug testing?
• What type of testing should I include in my program?
• What drugs do I test for?
• Should I be testing for alcohol?
• Why conduct random testing?
• How do I conduct random testing?
• What kind of accidents should I test for?
• What does the company do when an applicant fails a pre-employment test?
• What if an existing employee fails the test?

DOT Testing Programs

• What is DOT testing?
• Where do I find these regulations?
• What is a consortium?
• Is A WorkSAFE Service, Inc. a consortium?
• For my random testing program is it better to place employees in a pool with other companies' employees or my own company pool?
• If my company is in a multi-employer pool do I still have to meet the required random testing rates for my own employees?
• I have 2 CDL drivers and 30 warehouse employees can I put all the employees in a random pool?
• What happens if a DOT covered employee tests positive for drugs or an alcohol test of 0.04 or greater?
• What if the DOT covered employee refuses a drug or alcohol test?
• What if the alcohol test result is between 0.02 and less than 0.04?
• If the applicant/employee fails a DOT drug test can they be sent back in for another test?
• The applicant/employee fails a DOT drug test can they contest the test results?
• If the employee requests the split to be tested who pays for it?
• If my driver with a commercial driver's license (CDL) tests positive will his/her CDL be suspended?
• When is post-accident testing required for CDL drivers?
• How soon after the accident does the CDL driver have to test?
• The company receives a negative/dilute test result from the MRO are they required to send the applicant/employee back for another test?

A comprehensive program consists of the following elements:
 

• Clear and concise written drug and alcohol testing policy;
• Reasonable suspicion supervisor training;
• Employee drug awareness training;
• Employee Assistance Program (EAP);
• Drug and alcohol testing

Pre-employment testing can be conducted right away. Consider placing a notice in your advertising or a sign near the front door indicating you require applicants to submit to pre-employment testing.

You should wait 30-45 days after providing existing employees a copy of the drug and alcohol policy before you require them to submit to testing.

A basic program should include pre-employment, reasonable suspicion and post-accident testing. In addition to these reasons you can also conduct random, return-to-duty and follow-up testing.

Most employers test for the most common illicit drugs: marijuana (THC), cocaine, opiates, amphetamines (including methamphetamine), and phencyclidine (PCP). These are the drugs tested for under the Department of Transportation (DOT) mandated testing regulations and have become an industry standard.

It depends. A breath alcohol test will give an immediate test result and is directly correlated to a blood alcohol test result. In Oregon, we have a state law that prohibits conducting a breathalyzer test as a condition of or continuation of employment without the employee's written consent unless the employer has reasonable suspicion. Attorneys have argued that an employee hasn't freely given consent if a job offer will be withdrawn or employment terminated if they do not submit to a breath test. Therefore, if you are a non-regulated employer (non-DOT), you should avoid pre-employment or random alcohol testing. This state law does not apply to safety-sensitive employees subject to the federally mandated DOT testing regulations.

Random testing is the most effective way to deter substance abuse and convey the company's commitment to a drug-free workplace. Benefits include:
 

• Saves lives and prevents injuries;
• Helps employers identify workers with substance abuse issues and facilitate their treatment;
• Allows employees to easily say no to illegal drug use. "No thanks, my employer tests at work."
• Reduces liability;
• It's a fair way of testing.

An effective random program should use a valid scientific method of selecting individuals for testing (i.e. computer generated selection or random numbers table) and gives no advanced notice of the frequency of selections or individual's selected for testing. Once an employee is notified of their selection they should proceed immediately for testing, not be given 2-24 hours to report for testing, to maintain the integrity of the testing process.

Consider testing your employees involved in an accident under the following situations: any human fatality (not your employee); injury accident requiring immediate medical attention; property damage to company or client equipment or property exceeding a predetermined amount set by the company (ex. $1000); motor vehicle accidents requiring a report be submitted to your state's DMV or Licensing agency; or any near misses where serious injury or damage may have occurred.

If the applicant fails the pre-employment test he/she does not meet your hiring criteria. Most companies withdraw the job offer.

Companies have the option of terminating the employee under a No Tolerance policy or offering a Last Chance Agreement. If your company adopts a Last Chance policy, the employee is extended an offer to retain his/her job through the signing of a last chance agreement, whereby they agree to seek help through an Employee Assistance Program (EAP). When the EAP professional determines that the employee is making satisfactory progress, he/she is allowed to return to work contingent on passing a return to duty test and may be subject to additional follow-up testing after they have resumed employment. A No Tolerance Policy would terminate the employee's employment.

The US Department of Transportation (DOT) and the United States Coast Guard (USCG) has drug and alcohol testing requirements of safety-sensitive employees employed in the aviation, railroad, public transit, trucking, maritime, and pipeline industries.

Aviation (FAA)	Title 14 CFR Part 121
Railroad (FRA)	Title 49 CFR Part 219
Motor Carrier (FMCSA)	Title 49 CFR Part 382
Transit (FTA)	Title 49 CFR Part 655
Pipeline (PHMSA)	Title 49 CFR Part 199
Maritime (USCG)	Title 46 CFR Parts 4 and 16
DOT	Title 49 CFR Part 40

A Consortia/Third Party Administrator (C/TPA) is a service agent that assists employers in meeting the requirements of the federal testing programs. Services may include: policy development or review; supervisor and employee training; coordination of drug and alcohol testing (urine collection, alcohol testing, laboratory, medical review officer (MRO), substance abuse professional (SAP) services); and random testing program management.

Yes, A WorkSAFE Service is a C/TPA. We assist employers with the federally mandated testing program requirements of the FMCSA, FRA, FTA, USCG, and PHMSA. We do not handle aviation (FAA) programs. You may call us for referrals to service providers that may be able to assist you.

If you are an employer with 7 or more DOT covered employees where random selections can be made quarterly you may choose either option with the same desired effect. Owner-operators are required to be in a multi-employee pool, they can not conduct random testing on their own.

No. If your employees are in a multi-employer pool, the pool has to make the required drug and alcohol annualized testing rates. If the pool fails to meet the required rates every employer in the pool is in non-compliance. A WorkSAFE Service has always met or exceeded the required testing rates of their multi-employer pools.

You must place the CDL drivers in a separate pool from other employees. Federal regulations do not permit combining regulated employees and non-regulated employees in the same random pool.

The employee must be immediately removed from performing any safety-sensitive functions as defined by the regulations (varies by agency that regulates the employer). The employee may not return to performing safety-sensitive duties for any DOT covered employer until he/she has been evaluated by a Substance Abuse Professional (SAP), completed treatment required by the SAP, been reevaluated and cleared for a return-to-duty test, and will be subject to a minimum of 6 follow-up tests to be conducted in the first 12 months after their return-to-duty. Follow-up testing may continue for up to 5 years as determined by the SAP.

Consequences for refusing a test are the same as if the employee had a verified positive drug test or an alcohol test of 0.04 or greater.

Depending on which regulations are applicable, the employee must be immediately removed from safety-sensitive duties and my not return until:

Aviation (FAA)	8 hours	Retest Allowed
Railroad (FRA)	8 hours	No Retest Allowed
Motor Carrier (FMCSA)	24 hours	No Retest Allowed
Transit (FTA)	8 hours	Retest Allowed
Pipeline (PHMSA)	8 hours	Retest Allowed

No SAP evaluation is required under the regulations, however, an employer may require an evaluation under their own company authority.

No, the employee must be removed performing safety-sensitive duties and complete the Return-to-Duty process.

Federal regulations permit the applicant/employee to request the split specimen that was collected at the time of the original specimen be sent to another laboratory for testing. This request should be made to the MRO within 72 hours of the employee being notified of the positive test result.

The regulations give the employee the right to request the split specimen be tested. The company can not deny the employee's request for testing. If the company wants the employee to pay for the retest it must be stated in the company policy and will then have a means for withholding the cost of the test from the employee's pay.

No. The Federal Motor Carrier Regulations do not suspend the CDL if the driver tests positive on a drug test or has an alcohol test of 0.04 or greater.

In Oregon, if the Oregon licensed driver is employed by an Oregon employer subject to ORS 825, the verified positive drug test result will be reported to the Oregon DMV and it will be posted to his/her driving record. In Washington, if the Washington licensed driver tests positive for drugs, alcohol, or refuses a test this will be reported to the Washington Department of Licensing (DOL) and will suspend the CDL until the driver completes the required Return-to-Duty process, 49 CFR Part 40 Subpart O. Other states may have similar requirements.

If the CDL driver was operating a commercial motor vehicle (CMV) that required the CDL then the driver is required to submit to drug and alcohol testing in the following situations:
 

• Human fatality (other than the CDL driver); or
• If the driver receives a citation for a moving violation and any party receives immediate medical attention away from the accident scene; or
• If the driver receives a citation for a moving violation and any vehicle is required to be towed away because of disabling damage.

Drug test     32 hours
Alcohol test     8 hours

The citation must be received during these time periods for the injury and tow away accidents for a DOT required test to be performed. If no citation is received and the company wants to test it must be conducted as a non-DOT test under the company authority.

No, an employer may accept a negative/dilute test result as a negative test. If the employer wants a retest it may do so, however, it must be stated in the employer's policy and the employer must require a retest of all individuals that have a negative/dilute result in the same testing category. For example, an employer may choose to retest on pre-employment tests only. If so, all applicants with a negative/dilute result will be required to retest.