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 What To Do When A Driver Tests Positive
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This article addresses what a company should do when one of its employee drivers tests positive for illegal use of drugs or alcohol, including refusing to take a required test under the DOT testing procedures. These recommendations are based on DOT requirements and general principles of employment law.
Non-driver Employees: The recommendations herein may also be used for non-driver employees who test positive for drug or alcohol use in violation of your company's substance abuse policy, but you should check the law in your state to determine if there are any restrictions on discipline or requirements for rehabilitation of these employees before proceeding.
Unionized Employees: Collective bargaining agreements typically contain provisions that address these issues; those provisions would be in addition to the DOT rules. If your drivers are unionized, check your agreement before taking disciplinary action after a positive drug or alcohol test. If the collective bargaining agreement conflicts with the requirements of the DOT rules, however, the DOT rules supercede the terms of the agreement to the extent that they conflict.
STEPS TO BE TAKEN AFTER A VERIFIED POSITIVE
TEST:
If the driver is convicted in court or pleads guilty to:
the driver is disqualified from driving a commercial motor vehicle for one year (six months for conviction or guilty plea on transportation or possession of drugs). For a subsequent conviction or guilty plea on similar charges within the driver is disqualified from driving a commercial motor vehicle for 3 additional years. 391.15(c)
2. Referral to Substance Abuse Professional (“SAP”). An employee driver who tests positive for illegal drug or alcohol use must be referred to a substance abuse professional for evaluation and potentially for resolving problems associated with the misuse of drugs and/or alcohol. (There is an exception for an applicant for a job as a commercial motor vehicle driver who tests positive for illegal drugs—no referral to an SAP is necessary in that situation.)
The company must provide the driver with the names, addresses and telephone numbers of one or more substance abuse professionals. 382.605. The company is not responsible for ensuring that the driver completes, or even begins, such a process, however, and the company is not responsible for paying for any or all of the costs of the rehabilitation process.
3. Disciplinary Action. In the event of a positive drug or alcohol test, DOT rules leave the issue of employee discipline up to the company involved. You may fire a driver who tests positive for illegal drug or alcohol use, or use in violation of company policies. You may also suspend the driver for a certain period, with or without pay, or assign the driver to a non-driving job for a certain period or until that driver is requalified to drive. The disciplinary action should be spelled out in advance in your written company policy on drug and alcohol abuse and testing. You should not wait until you are faced with a driver who has tested positive for illegal drugs or alcohol to develop your policy.
The most important consideration is that you are consistent in disciplining employees who test positive. If you fire the first driver who tests positive, but offer a second driver who tests positive a chance for rehabilitation and return to duty, you are inviting the first driver to bring a lawsuit for wrongful discharge or employment discrimination.
This does not mean that you must treat every driver who tests positive in exactly the same manner, but you must be able to justify any discrepancies in discipline by showing that you have given similar treatment to drivers in similar circumstances.
Upon referral, the substance abuse professional must evaluate the driver and determine what assistance, if any, the driver needs to resolve the problems associated with drug or alcohol misuse.
4. Rehabilitation. DOT rules also leave the issue of rehabilitation up to the company involved. A company is not required under the DOT rules to offer the driver an opportunity for rehabilitation (beyond referral to a substance abuse professional), or to pay for a program if the company does allow the driver to try rehabilitation. Some company health insurance policies cover drug or alcohol counseling or rehabilitation programs, but most do not.
If a company allows a driver to undertake a counseling or rehabilitation program as a condition to returning to duty, you should be familiar with the program and be satisfied that it is designed and conducted in a professional manner, preferably in connection with a hospital or other medical facility.
5. Returning to Duty. The DOT rules state that a driver who tests positive for illegal use of drugs or alcohol may not drive a commercial motor vehicle or perform any other safety sensitive function until that driver is evaluated by a substance abuse professional and complies with any course of treatment prescribed by the SAP, including counseling, therapy or rehabilitation programs. The company must work closely with the substance abuse professional to ensure that the driver is in compliance with the course of treatment required by the SAP before attempting to return the individual to driving a commercial motor vehicle.
Before attempting to return a driver to duty performing safety sensitive functions, the company should obtain a written certification from the SAP that the driver is in compliance with the prescribed course of treatment. If the treatment is prescribed over a period of time, such as weekly counseling sessions for several months, the company should wait at least 45 to 60 days before return to duty to ensure that the driver is in compliance with the treatment program and that all drugs have cleared his or her system.
Prior to returning to duty, the driver must also take another drug or alcohol test, or both, depending on which substance caused the previous positive result, with a negative result. 382.605(c)(1)
If a company knowingly lets a driver who has previously failed a drug or alcohol test drive a company vehicle, even after passing a subsequent drug or alcohol test, and the driver causes an accident while under the influence of drugs or alcohol, the company could be held liable in a lawsuit for punitive damages (as well as compensatory damages) for grossly negligent behavior. If the driver has completed a drug or alcohol counseling or rehab program, in addition to passing a later drug test, the company's potential liability would be much less in the event of a subsequent drug- or alcohol-related accident.
6. Follow-Up Testing. The DOT regulations state that a driver who has returned to duty after a positive drug or alcohol test must be subject to follow-up testing for a period of up to 5 years. This follow-up testing must be at the direction of the SAP.
The SAP must determine the number and frequency of follow-up tests, but the driver must undergo at least 6 tests in the first 12 months after returning to duty. The follow up tests must be unannounced. and must be in addition to the other drug and alcohol tests (random, post-accident, reasonable suspicion) to which the driver is subject.
7. Access to Test Results. Test results are to be kept by the Medical Review Officer, and not at the company's place of business. The company is required to keep in the driver's qualification file (or separately under in a locked file that may be accessed upon request by FHWA personnel) information only on the following:
Test information documents are extremely sensitive material; thus, the driver qualification files and the annual laboratory test summaries and other administrative records required by DOT rules should be kept at the company's place of business in a secure place, under lock and key. Only the management personnel with a need to know should have access to the testing files and the results of the tests conducted. Management must not tell the results of an employee's drug test, either positive or negative, to any other employees or persons outside the company, unless management has obtained the tested employee's written consent.
8. Job References. If another employer asks you for a job reference on a driver that was fired for testing positive for drug or alcohol use, what should you say? The DOT rules are clear: You may not release the results of a drug test for any driver without that driver's written permission, even on a job reference. There is nothing in the DOT rules to prohibit you from stating that the driver did take a drug test, but you may not state whether the result was positive or negative unless the driver gives a written authorization.
If you are hiring a driver, you may ask the driver applicant to give you a written consent to disclosure of his or her testing records maintained by previous employers. 382.413(a) This consent should be a condition of employment, that is, the job offer should be conditioned on the driver waiving any right to privacy with regard to disclosing prior test results.
A prospective employer is required to obtain (or at least make a good faith effort to obtain) information about a driver applicant's positive drug or alcohol tests for the two years immediately preceding the date of the application. If feasible, this information must be obtained and reviewed by the prospective employer before the driver performs any safety-sensitive function, but in any event the information must be obtained no later than 14 days after a driver begins to perform safety-sensitive functions for the new company. If the applicant refuses to consent to disclosure of that information, the driver must be denied employment.
A prior employer that receives a request for these test records from a prospective employer is required to provide the requested information upon receipt of a written request or authorization from the driver. 382.405(f)
NWSA recommends that companies ask driver applicants early in the application process for written authorization to release their drug and alcohol test results from prior employers. If an applicant refuses to give the authorization, the company should terminate the application process immediately.
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NWSA Journal • Summer 2002 • Volume 1, No. 1 • Entire contents are Copyright © Data Key Communications, Inc. • All rights reserved. • Nothing may be reproduced in whole or part without written permission of the publisher.
