
Question:
Our Company received a random notice for one of our drivers, but when they were given notice to go test the driver told the Supervisor, “It will just be a waste of time because I already know I will test dirty”. So now what are we required to do as the employer?
Answer:
First of all once a driver has been notified to test even though at that time he/she has admitted to using a controlled substance, the same requirements apply as if the driver refused to test or had a positive test result. Therefore under the DOT requirements the driver would be ineligible to perform safety sensitive functions and would need to be removed from that type of position until he/she have completed the return to duty process. As the employer your only obligation is to explain to the driver the requirements and offer information regarding available Substance Abuse Professionals. It is not the employer’s responsibility to pay to send the driver/employee through an Employee Assistance Program (EAP) unless the employer so chooses.
As far as the employer/employee requirements within your Company this would depend on what was outlined in your Company Policy regarding the use of a controlled substance or the misuse of alcohol.
Now had the driver/employee came to a Company Designated Representative or Supervisor suggesting that he/she had a problem prior to being notified of a test requirement, again the consequences would depend on the Company Policy and with regards to the DOT requirements he/she would not be subject to the referral, evaluation and treatment requirements of 49 CFR Part 40 (see requirements above).
With a full agenda, the topics of discussion were very informative, the attendance impressive and the location very accommodating. It is exciting to see the positive direction both C-DATA and CDTOA has been going over the past few years, and this meeting clearly showed the overall effects. I hope even more members have the opportunity to attend the June Board Meeting in Rancho Mirage to experience for yourself the additional benefits the Board Meetings have to offer.
With our random selections in full swing I felt the topic of self admission would be beneficial to some employers should the situation ever actually arise.
Of course it is our recommendation that should a driver/employee self admit to having a problem with a controlled substance or alcohol or test positive on a test other than DOT there should be provisions within a Company’s Policy that require documentation of some type of substance abuse and/or alcohol counseling. From a liability stand point though you can never guarantee that person may not still have a problem or a relapse at least a responsible effort was made on the part of the employer to help rectify the problem.
§382.121- Employee admission of alcohol and controlled substances use.
(a) Employees who admit to alcohol misuse or controlled substances use are not subject to the referral, evaluation and treatment requirements of this part and part 40 of this title, provided that:
(a)(1) The admission is in accordance with a written employer- established voluntary self-identification program or policy that meets the requirements of paragraph (b) of this section;
(a)(2) The driver does not self-identify in order to avoid testing under the requirements of this part;
(a)(3) The driver makes the admission of alcohol misuse or controlled substances use prior to performing a safety sensitive function (i.e., prior to reporting for duty); and
(a)(4) The driver does not perform a safety sensitive function until the employer is satisfied that the employee has been evaluated and has successfully completed education or treatment requirements in accordance with the self-identification program guidelines.
(b) A qualified voluntary self-identification program or policy must contain the following elements:
(b)(1) It must prohibit the employer from taking adverse action against an employee making a voluntary admission of alcohol misuse or controlled substances use within the parameters of the program or policy and paragraph (a) of this section;
(b)(2) It must allow the employee sufficient opportunity to seek evaluation, education or treatment to establish control over the employee’s drug or alcohol problem;
(b)(3) It must permit the employee to return to safety sensitive duties only upon successful completion of an educational or treatment program, as determined by a drug and alcohol abuse evaluation expert, i.e., employee assistance professional, substance abuse professional, or qualified drug and alcohol counselor;
(b)(4) It must ensure that:
(b)(4)(i) Prior to the employee participating in a safety sensitive function, the employee shall undergo a return to duty test with a result indicating an alcohol concentration of less than 0.02; and/or
(b)(4)(ii) Prior to the employee participating in a safety sensitive function, the employee shall undergo a return to duty controlled substance test with a verified negative test result for controlled substances use; and
(b)(5) It may incorporate employee monitoring and include non-DOT follow-up testing.
[66 FR 43105, Aug. 17, 2001]
One in four Americans has a family member who is struggling with addiction, which affects 22.2 million people today. The problem of addition manifests itself in employment settings with increased absenteeism and higher worker’ compensation costs. In order to increase understanding and awareness, HBO is launching the Addition Project, a 14-part documentary film series that provides guidance in navigating the often confusing world of addiction treatment and recovery. The film provides a depiction of the emotional, psychologist, social and political toll that addiction takes on the country, demonstrates that the disease is treatable, and shows that there are millions of Americans in long-term recovery. Topics covered include:
• Addition in the workplace
• The nature of addiction
• The protracted insurance battles waged by families, as well as the difficulty of finding and getting adequate treatment.
The documentary series also highlights medical advances in addiction treatment, demonstrating how current advances in brain imaging science make it possible to see inside the brain of an addicted person, pinpoint the parts of the brain affected by addiction, and see how the addict’s brain differs.
The project premiers of HBO on March 15th and is supported by a 30-city nationwide community outreach campaign funded by the Robert Wood Johnson Foundation and coordinated by JoinTogether.org. Faces and Voices of Recovery, and Community Anti-Drug Coalitions of America.
Note that throughout this article, when I refer to the applicable federal regulations, I’m referring to CFR 49, Parts 40 & 382; these regulations can be found in Section 5 of the AADT Company Compliance Manual or in the AADT website at www.aadrugtesing.com under links at DOT Office of Drug and Alcohol Policy and Compliance at www.dot.gov/ost/dapc or Federal Motor Carrier Safety Administration at www.fmcsa.dot.gov.