You tell an employee who performs safety-sensitive functions (such as driving) that she has been randomly selected to take a drug test. She immediately proceeds to a collection site, gets the test completed and you go about your regular daily work.
A few days later you receive a positive test result and find yourself in a bit of a quandary. Not only do you need to have a talk with the employee, but you have to make sure everything is done just as DOT regulations require. To make matters worse, this particular employee is currently 350 miles away performing safety-sensitive functions for your company. Now what?
Non-negative test results, whatever the cause, are stressful and often awkward situations. As with many aspects of DOT regulations, knowledge and preparation are key to making sure precarious situations are handled effectively and adequately.
Why “non-negative” and not “positive”?
The term “non-negative” is used to account for situations that carry the same consequences as a positive result, even if a positive result was not received. One example is if a driver is directed to take a random drug test but refuses to do so.
Consequences of Non-Negative Test Results
Upon receipt of a non-negative test result, an employee must immediately cease all safety-sensitive functions. If the employee is a driver, you need to direct him to pull over as soon as he is safely able to do so. If a replacement driver isn’t an option, the vehicle needs to be towed.
Return-to-Duty Process
The DOT has a set of regulations that need to be implemented after a non-negative result is received. The process must be completed before the individual can resume performing safety-sensitive functions for you or any other company.
- DOT Substance Abuse Professional – Initial Evaluation – The employee must visit a DOT Qualified Substance Abuse Professional (SAP). This person will determine any activities or treatment that must take place.
- Follow-Up SAP Evaluation – After the employee has completed the SAP requirements, another evaluation must take place with the same SAP. At that time the SAP will determine whether the employee may resume safety-sensitive functions.
- Return-to-Duty Drug Test – Once the SAP confirms that all the requirements have been met, the employee must take a Return-to-Duty drug test. This test must be completed under direct observation, meaning an individual of the same sex must witness the process.
- Follow-Up Test Schedule – The SAP will provide you, or your Third Party Administrator (such as Foley Carrier Services) with a schedule of unannounced follow-up tests. There will be a minimum of 6 tests to be scheduled over a 12 month period, but the process may continue for up to 5 years. Each follow-up test must be completed under direct observation and must occur in addition to any random drug test selections the employee may receive.
To terminate employment or give a second chance?
You are not obligated to terminate an individual’s employment, nor are you obligated to give them a second chance. While this decision is yours to make, however, the same policy must be used for all employees. This means that if your best friend works for you and receives a non-negative test result, the same policy will apply to him as someone you have no personal relationship with.
This is why it is crucial to have a Drug & Alcohol Program Policy in place that clearly defines what your requirements are. That being said, having a policy in place is all well and good, but you also need to make sure all of your employees receive a copy and sign off on it.
To hire or not to hire?
So what happens if you have decided to hire somebody to perform safety-sensitive functions and their Pre-Employment drug test result comes back positive? Although this person cannot perform safety-sensitive functions for you (or for any company) right away, you can hire them once the Return-to-Duty process has been successfully completed. Alternatively, you can hire them to perform non-safety-sensitive functions (provided your internal company policy allows this).
At Foley, we help our clients create and manage their Drug & Alcohol Program Policies. If you’d like a free review of your policy, please call us today at (800) 253-5506 or click here.
Questions or concerns? Leave them in the comments section below!
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