have been reasonable suspicion). Sometimes a random test is noted on the CCF but the employee was not selected on the random selection list during the selection period. When the mismarked test purpose is reviewed with the DER, they may state that the supervisor suspected the employee of being under the influence of a drug and/ or alcohol. In this case, I will direct them to the section of the agency regulation guidelines for making a reasonable suspicion determination. I will also encourage the employer to have the supervisor retrained in reasonable suspicion determinations.
4
Post-accident (employee gets a hang nail and a DOT test is performed). Post-accident is another test purpose
5
that is oſten misused. Here are some instances I’ve encountered: • An employee slipped geting into the cab of a commercial motor vehicle (CMV) and was sent for a DOT post- accident test instead of the company’s corporate non-regulated program.
• A CDL driver was involved in an accident. Someone was taken away from the scene by ambulance to receive medical atention. Te driver was not at fault and not given a citation. Te company policy states any vehicular accident requires a test. Te company gave the driver a DOT post-accident test and should have been performed using the company’s corporate non- regulated program.
• A covered employee under the PHMSA regulations drops something on their foot while working on a PHMSA facility and was sent for a DOT post-
www.datia.org
The misuse of random testing (actually should
accident test instead of a corporate non-regulated test.
returned from a workers comp injury and performed a DOT R-T-D Test). Return-to-duty is another test purpose
6
that is oſten misused. It should not be used when an employee is already active in the employer’s roster and has no previous positive or refusal to test on file. Tis type of occurrence prompts a call to the DER for explanation. If the DER states that an employee is out on leave following a worker’s compensation injury, company policy requires a test be performed before allowing the employee back to work. Te DER is advised that the test should be ordered under their corporate program, using a forensic custody and control form, since DOT regulations only allow a return-to-duty following a positive, refusal to test, or in a FMCSA self-identify case. Tey are also directed to Subpart O of CFR Part 40 to review the regulations covering when and how a return-to-duty test is used under DOT regulations.
7
Pre-employment should be a Return-to-Duty
(test performed 1 week from date of positive result). DERs call wondering why an employee
is not part of the roster. When researched, if it’s found that the employee received a positive result less than a week before the second non-observed pre-employment test to which they are referring, the test is not valid. A negative direct observed return-to- duty test is expected in order to place the employee back onto the roster. During the conversation with the DER, it’s discovered the employee was not sent to
Return-to-Duty (no previous positive but
a SAP for the face-to-face evaluation. Te DER is reminded that the employee cannot be used to perform DOT safety-sensitive job functions until they have been assessed by the SAP and successfully completed rehabilitation and have a direct observed return-to-duty drug and/or alcohol test. Te result, of course, must be negative before puting the employee back into safety-sensitive job functions. Te DER is referred to subpart O of part 40 for review.
Employee chosen for random drug test only (alcohol test performed as well). Sometimes, a DER sends an employee
8
for an alcohol test when the selection list only requested a drug test be performed. This is a policy violation and could be construed as the DER is picking and choosing who they want to test for alcohol. Other times the DER contends the
collection facility performed an alcohol test and it was not requested. If the DER is not scheduling the required tests with the collection facility, this can cause tests to be performed that are not required. It’s important for the DER to schedule the test with the collection facility by faxing or emailing a test order such as an authorization form. It’s a best practice to not send the authorization form with the employee as many times the form does not make it to the facility. When the final rule, dated October 1, 2010, was published, I was happy with the addition of “§40.14 What collection information must employers provide to collectors?”. This particular regulation outlines everything the DER is required to provide to the collection facility in order to ensure proper testing. In the event electronic CCFs are
approved for DOT testing, the need for paper authorization forms will be eliminated.
datia focus 13
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46