1. What is return to duty drug testing?
Return to duty drug testing most commonly occurs within safety-sensitive positions. It’s a single test required by the Department of Transportation (DOT) performed at a scheduled time followed by successful completion of a drug and alcohol recovery program.
Those managing the general workforce are free to set their own guidelines in their drug and alcohol policies while safety-sensitive workers must follow specific rules. This article addresses return to duty drug testing for safety-sensitive workers regulated by the DOT and specifically the Federal Motor Carrier Safety Administration (FMCSA).
2. What type of employees are subject to return to duty testing?
The DOT requires a return to duty drug test for people working in safety-sensitive jobs suspended for drug or alcohol use. These workers include:
- Truck drivers
- School bus drivers
- Train engineers and crew members
- Pilots and other FAA employees
- Pipeline crews and employees
- U.S. Coast Guard crew members
3. When should an employee start the return to duty process?
The return to duty process includes several steps with the return to duty drug test being one of the last steps. A driver begins the return to duty process for one of three reasons:
- refusing a drug test (random or reasonable suspicion, for example)
- testing positive for drugs or alcohol
- violating your company’s drug and alcohol rules.
As the Designated Employer Representative (DER), it’s your job to start the return to duty process. It’s also your responsibility to make sure your driver follows the plan or terminate for failure to complete.
Starting the return to duty process
Your driver must begin the return to duty process if you have actual knowledge of a driver’s alcohol consumption
- within 4 hours of coming on duty
- while on duty
- or anytime during the 8 hours immediately following a commercial motor vehicle (CMV) accident
If you have actual knowledge that a driver used a Schedule 1 drug or a non-Schedule 1 drug that affects your driver’s ability to safely operate a CMV, your driver must begin the return to duty process.
Keep in mind, regardless of your state laws, marijuana in all forms is still banned since it’s still listed as a Schedule 1 drug by the federal government.
Keep in mind that if a physician prescribed a medication and told your driver it would be safe to use while on duty, there is no drug violation and the driver does not have to begin the return to duty process.
4. What is “actual knowledge” of drug or alcohol use?
Besides first-hand knowledge, actual knowledge includes information provided to you by previous employers as part of a new driver DOT inquiry. If your new driver completed the return to duty process, it’s your responsibility to get proof of completion from the previous employer. However, if you can’t get that proof, your new driver must pick up where documentation in your possession leaves off or start all over again as outlined in Subpart O of Part 40.
5. What is the return to duty process?
Difficult and costly by design, the 6-step return to duty process serves to deter drug and alcohol use. When drivers understand at the point of hire that drug and alcohol use requires completion of the return to duty process, they are less likely to use drugs and alcohol while working. In 2018, less than 3% of drug tests returned positive, so we can conclude the return to duty process is an active deterrent.
6-step return to duty process:
Step 1: Immediately remove the driver from safety-sensitive functions
Instruct your driver to pull over and park as soon as safely possible. Arrange for someone else to complete the drive and make sure this driver gets home safely.
Step 2: Refer the driver to a Substance Abuse Professional (SAP)
The DOT requires that you use whatever means necessary to provide your driver with a free list of DOT-certified SAPs – whether you terminate the driver or not. The list must include addresses and phone numbers. Although you can’t force your driver to meet with the SAP, you should inform the driver that not meeting with the SAP is career-ending.
If you don’t have a list of qualified SAPs, call Lobdock at 405-828-0553 and we’ll connect you to one.
Substance Abuse Professionals (SAPs) meet face-to-face with drivers in the return to duty process to understand the situation and history of drug and alcohol use. The SAP then develops an appropriate treatment plan.
Step 3: Driver enters a drug and alcohol education and treatment program
Next, based on the face-to-face evaluation, the SAP recommends an education and/or treatment program. Treatment programs may include in-patient, out-patient and/or aftercare services. Education may include self-help groups, drug and alcohol education courses, or community lectures.
Step 4: SAP conducts a follow-up evaluation
Once your driver completes the recommended treatment program, the SAP meets again with your driver to determine successful completion and schedule a return to duty drug test. The SAP is the only one qualified to make that determination.
Step 5: Plan follow-up testing
Finally, the DOT requires at least 6 unannounced follow-up direct observe drug tests over a 12-month period. The DOT allows the SAP to require repeat follow-up testing every year for up to 5 years, if necessary.
6. What is a Substance Abuse Professional and what is their role in the return to duty process?
Substance Abuse Professionals (SAP) are licensed physicians, social workers, psychologists, employee assistance professionals, therapists, or drug and alcohol counselors. These professionals must pass specific exams to provide SAP services. The DOT certifies these professionals but it gives you the authority to ask for proof of credentials. If the documentation presented to you is questionable, ask for more information or choose a different SAP.
The SAP does not work for you or for your driver. The SAP ensures public safety. It’s not their job to get your driver back to work as soon as possible. The DOT gives SAPs full authority to make appropriate recommendations for therapy. According to rule [40.295], their recommendation cannot be changed, nor can you find a different SAP once one has been chosen.
7. What if the Return to Duty process takes too long?
You aren’t required to hold your driver’s position open if the return to duty process is taking too long. Rule [40.305(c)] allows you to choose to terminate the driver as long as that decision doesn’t break previously defined agreements or contracts. However, the SAP is prohibited from giving you an opinion about driver termination. If you choose termination, communicate to your drivers that as long as they continue to work through the return to duty process, they are eligible to seek employment elsewhere.
8. Do I have to engage the return to duty process?
Yes! Neither you nor your driver can choose to skip the return to duty process without great consequences. A driver who skips it essentially ends his career since he cannot return to his job without going through the return to duty process. If a motor carrier fails to begin or continue the return to duty process and follow-up testing, it’s considered an acute violation with a fine of up to $15,040. You’re also at risk of negligent entrustment claims if that driver is involved in an accident.
9. Who pays for return to duty drug testing?
You as the employer are under no obligation to pay for therapy, return to duty or follow-up drug testing unless your policy states that you will. Once a driver is notified of a follow-up drug test, that driver must immediately go to the collection site. Lack of funds to pay for the test constitutes a refusal to test and the return to duty process starts all over with a new SAP assessment.
10. What if my driver is on prescription medications?
The DOT requires a 5-panel drug test for return to duty drug testing. In order to return to duty, the driver’s drug test must present a negative result. If a return to duty drug test presents positive for drugs, the Medical Review Officer (MRO) contacts the driver to discuss the result. Legal and medical reasons for a detected drug allows the MRO to overturn the positive result. Without a valid legal or medical reason for the detected drug, the test result remains positive and the return to duty process starts all over again.
11. How long must I keep documentation?
The DOT requires employers to keep return to duty documentation for 5 years, even with a negative return to duty drug test. Auditors require the entire return to duty plan, SAP information and drug test results as proof of completion.
12. What’s the difference between return to duty drug testing and pre-employment drug testing?
The main difference between pre-employment drug testing and return to duty drug testing is that the return to duty drug test must be directly observed by someone of the same sex as the donor. A collector directly observes the donor urinate into the collection cup to check for prosthetic and other devices or substances that could be used to cheat the drug test.
When ordering a drug test for a seasonal employee or one returning to work after extended time off for something other than drug and alcohol treatment, order a pre-employment test, not a return to duty test.
13. Can I use a pre-employment drug test for a return to duty drug test?
Some people may think return to duty drug testing and pre-employment drug testing are interchangeable. They are not. Return to duty drug testing is specifically for drivers who tested positive for drugs or alcohol, refused to take a drug or alcohol test, or violated a company’s drug and alcohol policy. The return to duty drug test is taken upon completion of the SAP education and treatment plan. Although you are not allowed to use a pre-employment drug test in place of a return to duty test, you may use the return to duty test as a pre-employment test. Why? Because direct observe is not required for pre-employment but is permitted.
14. Can I use a return to duty follow up drug test in place of a random drug test.
No. For the same reason you cannot use a pre-employment test in place of a return to duty test. Return to duty drug testing requires direct observation while random drugtesting does not. It’s possible your driver could be called to take a random drug test soon before or after a follow-up drug test.
The return to duty drug testing process is long and difficult for you and your driver. Don’t do it alone. Lobdock walks you through the process and helps you if you’re audited.
In our 10 years of business, not one of our clients has failed a DOT audit. Let us help you!
Call us at 405-822-0553
Typically before you begin the return to duty process, you have reasonable suspicion of drug or alcohol use. Sign up for our e-newsletter and get a FREE Reasonable Suspicion Confrontation Planner.
Follow us on social media for tips, updates and a little bit of fun!