By Sandra Brakstad, President of Midwest Compliance Inc.,
Sauk Rapids Minnesota
800-656-1396
http://www.midwestcompliance.com/
Let’s say our friend, Joe Schmo, has just tested positive for marijuana. In this scenario, the Medical Review Officer, (MRO), has already contacted Joe and verified that there was no legitimate reason for Joe to have marijuana in his system. A legitimate reason would be a verifiable, written prescription from an accredited medical physician; not “oh, I was ice fishing with my buddies last week, and I must have inhaled third party smoke.”
The MRO will notify Joe of his right to request testing the split specimen of the original urine sample. Joe has 72 hours, from the time of notification, to request the second test. His request, to the MRO, may be verbal or in writing. Upon receiving Joe’s request, the MRO must provide written notice to the laboratory that tested the primary specimen, directing them to forward the split specimen to another certified laboratory. The alternate lab and MRO will bill you, the carrier, for this procedure. However, if you have previously established, in your drug and alcohol policy, that retesting costs are the responsibility of the employee, then you may request that Joe reimburse you for all of the testing costs of the split specimen.
After the MRO confirms the positive result with Joe, you will be contacted with the results, either by the MRO or your C/TPA (if you have elected to receive results through a Consortium/Third Party Administrator). The preferred method of reporting is direct telephone contact, followed up with the appropriate documentation.
Because Joe is feeling pretty bad about this, he may have notified you that he tested positive before the MRO or C/TPA calls you. As soon as you are made aware of this positive result, it is your responsibility to immediately remove Joe from all safety-sensitive functions, (see the Drug Testing -- Save Your Money article for the definition of a safety sensitive function). Your next step is to provide Joe with a list of available Substance Abuse Professionals, (SAP) and counseling and treatment programs. If your C/TPA is on the ball, they will have this information for you.
If Joe has requested that the split specimen be retested by a different lab, Joe must be suspended until the lab reports that it has failed to reconfirm the specimen as positive. When or if the lab fails to reconfirm a positive, both tests will be canceled, and Joe may resume his safety-sensitive work.
If your company drug and alcohol policy is “zero tolerance,” once you give Joe the SAP information and discharge him, you release yourself from any further obligation to ensure that Joe receives the SAP evaluation. In the event that Joe applies for another job, it is the prospective carrier’s obligation to question you regarding whether or not Joe has ever violated the controlled substance regulations. Upon receipt of a release signed by Joe, it is your duty to indicate the results of the positive test.
If your company’s drug and alcohol policy is not zero tolerance, Joe must be temporarily suspended from all safety-sensitive functions. The SAP will forward the evaluation, referral to a treatment professional, and the follow-up evaluation to you. Once Joe has demonstrated successful compliance with the treatment recommendation, before you can return him to a safety-sensitive function, he must test negative on a return-to-duty test.
Depending upon how your drug and alcohol policy reads, a negative return-to-duty test result does not guarantee that Joe will be returned to a safety-sensitive position. The prescribed treatment program, and negative test result are only preconditions he must meet in order to be considered for reinstatement to safety-sensitive duties.
Follow-up testing commences once Joe has returned to safety-sensitive duties. The SAP will recommend the number of follow-up tests required over a designated time period. The regulations require that a minimum of six follow-up tests be conducted during the first twelve months. The intent of this requirement is that the testing be spread throughout the 12 month period. If the SAP believes that Joe needs to be tested more frequently during the first months after returning to duty, he/she may recommend more than the minimum of six tests, or direct you to conduct more of the six tests during the first months rather than the latter months of the 12 month period. Remember, that six tests in 12 months is just a base line, the SAP is allowed to prescribe follow-up testing for up to 60 months!
Even though Joe is now subject to follow-up testing, he will also continue to be subject to random testing. Joe’s follow-up testing program must be individualized and designed to ensure that he is tested the appropriate number of times, as directed by the SAP. Follow-up testing should be unpredictable and unannounced.
When adopting a drug and alcohol testing policy remember that most qualified C/TPA’s have boilerplate language available to you. If you adopt a pre-written policy, make certain it is in compliance with all current regulations.
Considering the costs of the SAP evaluations, the treatment and/or education programs, the return-to-duty test, and subsequent follow-up tests, you might want to state in your policy that these costs will be at the expense of the employee found to be in violation of the policy. At Midwest Compliance, we have boilerplates available, if you sign up for our services. We also keep our clients apprised of regulations changes through policy revisions.
If you are considering adopting a zero tolerance policy, weigh the dynamics of your operation against the mandates of a zero tolerance policy. Under this type of policy, if Joe is your brother, a violation of the policy will require that you terminate his safety-sensitive employment. This may create a negative economic impact on your operation, if you are a small carrier. Keep in mind that people make mistakes, and in my experience, people who are given the opportunity to correct their mistake and rehabilitate, may turn out to be very reliable, dedicated employees.
To recap, here are the money saving tips from this article and Parts II and III:
- Conduct a thorough background investigation before you offer the job and before you pre-employment drug test the prospective driver.
- Learn the pre-employment drug test exemption regulations.
- Take care to have the correct random test performed, i.e. drug vs. alcohol.
- Make certain drivers understand what constitutes a “refusal to test,” and what the consequences for a refusal are.
- Monitor the collection sites to avoid double billing in case of a cancelled test.
- Align yourself with a C/TPA who will bill the collection site, instead of you, for the labs costs on a cancelled test.
- Establish retesting costs and the costs of positive test procedures as the burden of the offending employee.
- Look at the long-term and economic impact of zero-tolerance policies.
Next month we will discuss adulterated, substituted, and diluted drug tests.
Until then, take it one load at a time!Sandra Brakstad
http://www.midwestcompliance.com/
800-656-1396
