For many employers it can be a stressful and confusing time when an employee tests positive on a DOT mandated drug or alcohol test.
Does the employer now have to “DO” anything?
Must the employee be fired? How long will the driver be out?
Can the driver be re-hired?
The key is to precisely follow the DOT regulations in order to handle the situation correctly and maintain regulatory compliance.
Once an employer has received a verified positive drug test result, the employer must immediately remove the employee from DOT covered safety sensitive functions. The employer should not wait for a written report from the Medical Review Officer or the results of a split specimen test (if one has been requested by the employee).
A verified positive DOT drug or alcohol test is a direct violation of the federal drug and alcohol testing regulations.
Employers who are required to comply with DOT regulations must provide an individual who has tested positive for drugs or alcohol on a pre-employment (including an applicant or new employee), random, reasonable suspicion or post-accident test with information about qualified Substance Abuse Professionals (SAPs). Employers are not required to pay for the employees evaluation or treatment; however they must provide a list of locally available DOT SAPs. Employers may provide the list of SAPs through a Third Party Administrator (TPA).
In order to be eligible to perform safety sensitive duties, the employee in violation must successfully complete the DOT Return to Duty Process. This process involves being evaluated by a DOT qualified Substance Abuse Professional (SAP), completing treatment and/or education as recommended by the SAP, and a follow-up evaluation by the SAP. The time it takes to complete the DOT SAP process varies and depends upon the level of treatment and education recommended for the employee, as well as the employee’s dedication to the process. The SAP is not an advocate for the employee or the employer. Rather the SAPs function is to protect the public’s interest in safety.
It is important to note that only a DOT qualified SAP may provide the required evaluation, recommendations and determination of successful compliance required to become eligible for consideration for a return to safety sensitive duty by an employer. In order to be qualified to act as a DOT SAP, the SAP is required by federal regulations to have specialized training, maintain specific professional credentials and undergo continuing education. They are also required to adhere to specific rules and regulations regarding facilities in which they recommend for treatment and education.
Once the employer has been notified by the DOT SAP in writing that an employee has successfully completed the recommendations, the employer may choose to return the employee to safety sensitive duty pending a negative return to duty test. The employer must also ensure that the employee is in follow-up testing as recommended by the SAP.
What if I fail or refuse a test?
You fail a drug or alcohol test by testing positive to a drug test, or registering a 0.04 or greater alcohol content. Either of these results requires you to be immediately removed from performing safety-sensitive functions (i.e., driving CMVs) until successful completion of the return-to-duty process with a DOT-qualified substance abuse professional.
Your refusal to submit to a drug or alcohol test is generally equivalent to testing positive to a drug or alcohol test. You must immediately be removed from performing safety-sensitive functions (i.e., driving CMVs) until successful completion of the return-to-duty process with a DOT-qualified substance abuse professional. The DOT regulations outline refusals to test for drugs and alcohol. Some refusals are determined by medical review officers (49 CFR Part 40 Subpart G) and alcohol technicians (49 CFR Part 40 Subpart N). For others, the determination is the employer’s responsibility. Refusals to submit to a drug or alcohol test are defined in §382.107. The employee handbook available on the ODAPC Web site provides examples of conduct that the regulations define as refusing a test (49 CFR Part 40 Subpart I and Subpart N) and what happens if you test positive, refuse a test, or violate FMCSA regulations. It is, therefore, critical to understand the specific circumstances that define a refusal, which can be found in §40.191, §40.261 and §382.107.
DOT Drug & Alcohol Testing Services, Evaluations and Drug Free Workplace Solutions Need a Drug and/or Alcohol Test? Call Same Day DOT Physicals Drug & Alcohol Testing.
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529 Hartsville Pike
Gallatin, TN 37066
Dr. Michael J. Tigges
Certified DOT Medical Examiner
Dr. Tigges is one of the first in TN to become a certified DOT Medical Examiner of the United States Federal Government. The National Registry of Certified Medical Examiners requires all medical examiners performing physical examinations for interstate commercial motor vehicle drivers to be trained and certified in FMCSA physical qualification standards.
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