ASK ALICE
Each issue we will be answering questions submitted by members. If you have a question to be answered, please submit it to info@datia. org with Ask Alice in the subject line. Enjoy.
QUESTION: If a DOT covered employee went to a collection site for a random drug screen and the collector mistakenly performed an instant test. Is this considered a fatal flaw, and therefore the driver would not have to be resent again or would the driver simply have to be sent in a second time for collection using the correct DOT collection process?
ANSWER: Instant tests are not allowed for DOT collections. Terefore the employee would need to return for another collection using correct DOT procedures and the federal CCF.
QUESTION: When a collector makes a fatal flaw and the MRO cancels the test and that is the result for that driver’s random, then the driver (donor) is not required to go back in for a re-collection. So, if a collec- tor does an instant test instead of the correct DOT lab-based urine test then why would the driver be penalized for the collector’s mistake and be required to go back in? Is there an actual regulation that addresses this specific situation, similarly to the other fatal flaw errors covered in Part 40?
ANSWER: Since a DOT test was not even started (i.e. No Federal CCF was used and a non-DOT instant-test was used with no urine specimen being submited to an HHS laboratory) then the regulations in Part 40 do not even come into play. Terefore, using such non-DOT procedures is not considered a fatal flaw and the test does not count as a DOT test. If the donor was required to report for a DOT random drug test and a DOT test was not completed, the donor needs to return to the collection site for a DOT test following DOT procedures, provided that the test is conducted within the testing period (i.e. before the next ran- dom selection is made). Since no specimen was submited to the lab, there would be no lab result reported that could result in a cancelled test. Tis is a further indication that the test was not a DOT test. Te donor should not be seen as being penalized since
36 datia focus
the original non-DOT test was in fact not a DOT test and will not be reported as such.
QUESTION: For a pre-employment test, it is deemed a refusal if the donor leaves the site aſter the testing has commenced. If the testing has not yet commenced and the donor leaves is this considered a refusal?
ANSWER: No. § 40.191 What is a refusal to take a DOT drug test, and what are the consequences? (a) As an employee, you have refused to take a drug test if you: (2) Fail to remain at the testing site until the testing process is complete; Provided that an employee who leaves the testing site before the testing process commences (see §40.63 (c)) for a pre- employment test is not deemed to have refused to test;
QUESTION: Are employers required to have an Employee Assistance Program (EAP) in place per DOT? Do they need to pay for a Substance Abuse Professional (SAP) program if a DOT employee has violated the drug and alcohol testing rules and regulations?
ANSWER: “As an employer, you are not required to provide a SAP evaluation or any subsequent recommended education or treatment for an employee who has violated a DOT drug and alcohol regula- tion.” (49 CFR 40.289(a)) “As an employer, you must provide to
each employee (including an applicant or new employee) who violates a DOT drug and alcohol regulation, a listing of SAPs readily available to the employee and ac- ceptable to you, with names, addresses, and telephone numbers. “ (49 CFR 40.287)
QUESTION: When completing a follow- up DOT SAP evaluation and the SAP spec- ifies the donor should complete follow-up tests over a period of time, should the SAP specify the number of tests done?
ANSWER: Per 49 CFR Part 40.307 (c) You [as the SAP] are the sole determiner of the number and frequency of follow-up
winter 2012
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