What Must an Employer Do After a Positive Drug Screen or Alcohol Test?

Drug Screen or Alcohol Test?
If it is a pre-employment test and you don’t hire the driver, your responsibility ends.

If you’ve hired the driver and he already works for you, then you must comply with the requirements of Title 49 382.605_”Referral, evaluation and treatment.” Follow the stages below.

What to do step by step…

• The employer decides whether or not to terminate the employee.

Choice # 1 – Employer terminates the employee

• The driver shall be advised by the employer of the resources available to the driver for evaluating and resolving problems associated with the misuse of alcohol and use of controlled substances, including the names, addresses and telephone numbers of substance abuse professionals and counseling and treatment programs.  (call ODTNE for assistance)

Choice # 2 – Employer continues working with the employee

• The employer shall assure that a Substance Abuse Professional shall evaluate each driver who engages in conduct prohibited by this part. The employer immediately removes the employee from any safety sensitive position.

The Substance Abuse Professional’s requirements: (Part 410.393)

• Provide a comprehensive face-to-face assessment and clinical evaluation.

• Recommend a course of education and/or treatment with which the employee must demonstrate successful compliance prior to returning to DOT safety-sensitive duty.

• Appropriate education and/or treatment.

• Provide to the Designated Employee Representative (DER) an evaluation report meeting the requirements of Part 40.311.

• Re-evaluate the employee face-to-face in order to determine if the employee has successfully carried out your education and/or treatment recommendations, by obtaining appropriate documentation from the appropriate education and/or treatment program as well as determining if the employee has demonstrated successful compliance in accordance with your initial evaluation. An employee may have demonstrated successful compliance even though the employee has not yet completed the full regimen of the program.

• Provide to the DER the follow-up evaluation report meeting the requirements of Part 40.301.

The Employer’s requirements: (Part 40.305)

• Evaluation and rehabilitation may be provided at your direction, by a SAP under contract with your company, or by a SAP not affiliated with your company.  The choice of SAP and arrangement for payment may be made in accordance with employer/driver agreements and company policy.  It is not required that the company pay for the rehabilitation and treatment or that the company keep the employee on staff.
•  After the employee meets the requirement of numbers 2 through 8, the employer shall assure that before a driver returns to duty requiring the performance of a safety-sensitive function after engaging in conduct prohibited by Part 382, the driver shall undergo a return-to-duty alcohol or drug test with a result indicating an alcohol concentration of less than 0.02 if the conduct involved alcohol, or a negative result if the conduct involved a controlled substance.

•  Schedule unannounced follow-up alcohol and controlled substances tests following the driver’s return to duty.  The number and frequency of such follow-up testing shall be as directed by the SAP, and consist of at least 6 tests in the first 12 months following the driver’s return to duty.  You may direct the driver to undergo return-to-duty and follow-up testing for both alcohol and controlled substances, if the SAP determines that return-to-duty and follow-up testing for both alcohol and controlled substances is necessary for that particular driver.  Any such testing performed shall be in accordance with the requirements of 49 CFR Part 40.  Follow-up testing shall not exceed 60 months from the date of the driver’s return-to-duty.  The SAP may terminate the testing at any time after the 6 tests have been administered if the SAP determined that such testing is no longer necessary. (Part 40.309)

• When scheduling the follow-up tests, avoid discernable pattern as to the timing of tests and ensure that the employee is given NO advance notice.

• You cannot substitute follow-up tests for any other tests. (Follow-up tests are in addition to any random tests for which the driver may have been selected.)

• You must keep all documentation of verified positive controlled substances test results, the driver’s evaluations and referrals, and records relating to the follow-up process for 5 years.