ALEXANDRIA, Va. – In this week’s ‘Overdrive” following UMA Town Hall, a question was asked pertaining to a pre-employment drug test that comes back positive. Is the operator required to report the violation even though the company did not hire the driver, so it is technically not the employer?
The answer is yes. Indeed, the employer and medical review officer are required to report drug and alcohol program violations in the Clearinghouse (49 CFR § 382.705). It is important to understand the definition of an employer as it applies to the Federal Motor Carrier Safety Regulations as related to drug and alcohol compliance (49 CFR § 382.107):
“Employer means a person or entity employing one or more employees (including an individual who is self-employed) that is subject to DOT agency regulations requiring compliance with this part. The term, as used in this part, means the entity responsible for the overall implementation of DOT drug and alcohol program requirements, including individuals employed by the entity who take personnel actions resulting from violations of this part and any applicable DOT agency regulations. Service agents are not employers for the purposes of this part.”
In other words, as far as FMCSA is concerned, you are an “employer” with duties and responsibilities even though you may have declined to hire a specific individual. Also note in the definition, “Service agents are not employers for the purposes of this part.” Consortiums and third-party administrators may file on your behalf by agreement; HOWEVER, the employer remains responsible for compliance.
Return to duty procedure
So, what happens to the driver? A driver with a positive drug test must complete the USDOT return-to-duty program before they are allowed to perform safety-specific functions again. This includes the completion of any prescribed education or treatment. The steps of the return-to-duty program are as follows.
- After a driver is removed from safety-sensitive functions, their employer will refer them to a nearby Substance Abuse Professional (SAP).
- The SAP will evaluate the driver, recommending a course of education or treatment for their substance abuse and violation.
- The driver must complete the education or treatment recommended by the SAP before being eligible to return to duty. Drivers are responsible for funding any prescribed education and treatment themselves. After completing treatment, the driver will be evaluated by the SAP.
- Following evaluation, the driver must complete a negative return-to-duty drug test to qualify to take up their safety-sensitive duties once again. This test must be directly observed.
- Once the driver has successfully returned to duty, they are required to complete several follow-up tests. These tests are unannounced and directly observed, and drivers must complete a minimum of six of these tests within a 12-month period. Failure of any of these tests will result in the need to repeat the return-to-duty process.
The positive drug test will remain on a driver’s Clearinghouse record for five years.
Click here for the online procedures to report a positive drug test.