How to Maintain a Drug-Free Workplace and Ensure Audit Success

Our drug-free workplace program should also get a checkup every year. Laws and regulations may have changed, and the company may need to adjust its policies and procedures.

• By Lisa Ruehle
• Oct 01, 2016

Every day, a small but elite group of professionals work diligently to make sure our employees and customers are safe by working with a drug-free workplace program (DFWP). In my case, I was a happy administrative assistant until one day when my manager asked, "Would you help me with this little drug program?" I had no idea what I was getting myself into; however, it changed my professional life and opened up my understanding of workplace safety.

This vocation is not for the faint of heart, yet it is very rewarding and often adventurous. Most of these professionals always have a cellphone nearby and understand there is a real possibility of getting a 3 a.m. call. We also have a great opportunity to help someone who may have struggled with substance abuse or misuse.

DOT Programs
The U.S. Department of Transportation (DOT) requires companies with employees in safety-sensitive functions mandated by DOT to have a DOT drug and alcohol testing program. The person who is responsible for the program is known as a Designated Employer Representative (DER). The DER may be someone who is in safety, security, medical, risk management, or even human resources. The key factor for the DOT is that the DER must be an employee of the regulated company and has an understanding of and access to applicable government regulations.

To keep the program fair and in compliance, DOT has extensive resources for DERs and service agents. The regulations do not address matters such as termination due to a positive or refusal. A company may say if you test positive for a prohibited drug or refuse to take a DOT-required drug test, you will be terminated; however, state laws also come into play. There are several states that put restrictions on terminating for the first positive.

Many DOT employers may also have a non-regulated program for individuals who may perform duties that could affect public safety or security. Individuals who are in a DOT program could still be subject to non-regulated post incident testing under the non-regulated program that a company may have. For example, post-accident testing that does not rise to the accident level defined by the governing agency (e.g., FMCSA, FRA, FTA, etc.) definitions could be tested under a non-regulated testing program.

Non-Regulated Programs
Non-regulated companies can, and should, be concerned with safety, as well. These programs are not "anything goes." States' and municipalities' laws must be considered. Some states have laws cover many different issues, for example: employee education, supervisor training, zero tolerance, rehabilitation requirements, what type of specimen is allowed—such as urine, oral fluids, hair, point of collection (on-site rapid result testing)—a requirement to send specimens to a lab, whether a Medical Review Officer (MRO) is required to review the result, and much more.

Many companies consider the DOT regulations the "gold standard." They offer concrete practices to keep us in compliance with the applicable regulations, but for the non-regulated program, we once again must lean on state laws and common-sense practices.

Keeping Our Programs Healthy
Every now and then, we go see our doctor for an annual checkup. Our DFWP should get a checkup every year, as well. Laws and regulations may have changed, and the company may need to adjust its policies and procedures.

One of the best ways a company can monitor the health of the program is by auditing the program. Preferably, have an outsider perform the audit or someone who is somewhat familiar with your program and can ask questions that may cause you to have to think, "Why do we do it this way?" Audits challenge our procedures and cause us to think about what we can do better. Some of our auditing is routine, such as monthly or quarterly auditing of the random pool participants. This is important because we do not want to dilute the pool with employees who are not working in a safety-sensitive position. We also must add in new employees who are performing safety-sensitive functions. As a company grows, the random pool could include thousands of covered employees.

Sometimes it feels like we are being challenged. Unemployment hearings related to a positive, refusal, or other prohibited conduct is one example. These hearings are generally very thorough, requiring presentation of the policy and documentation of the employee receiving education about the policy, including being made aware of the substances being tested for and when testing can take place. Generally, these hearings are held via telephone. Often, expert testimony by the lab or MRO may be required, as well. They may require a representative be at the hearing in person. Unemployment hearings can reveal deficiencies in the program. We must always ensure that we have educated our employees, and it is always best to document the education. The judge is charged with balancing what the employee did and what the company provided for education. Successfully navigating this situation could show that you are prepared for a real audit.

Behind every good program there is a strong foundation. Education and consistency in a solid policy are at the core of great programs. This requires that the DER takes the opportunity to learn as much as possible.

Five Keys to Guarantee Success
The top five ways to ensure audit success and a successful drug-free workplace policy are as follows:

1. Know which regulations apply. If you are required to test under the DOT, you will need to be very fluent in 49 CFR Part 40, as well as the modal regulations (FMCSA, FTA, FRA, etc). Spend time on the ODAPC.gov site and look at all the resources.

You may not be a drug collector or an alcohol technician, but you should know what they are required to do. If you do not understand the basics, you cannot advocate for the employee.

2. Have a strong and well-written policy. Whether your program is DOT regulated or non-regulated, wise companies create strong policies. Consistency is very important. We are generally prepared for the eventual positive and/or refusal; however, there are many other events we should prepare for just in case.

It is important for a company to discuss potential scenarios and how they would handle the issue across the organization. You should apply the policy equally to all persons who are subject to the policy. In small family companies, this can often become an issue. But in all cases, always have a systematic investigation process to learn the facts and attain evidence and other documentation to thoroughly investigate the incident.

Ultimately, the policy should be so well defined that you can come to the conclusion based on the criteria outlined in the policy. Your policy should have absolutes, and employees must know what these are. For example, if the company does not allow drinking while on company property, it may be something to which your company is committed. What would you do if the marketing department threw a party with alcohol at 3 p.m. on Friday? Maybe a better solution is to have an approval process for certain events.

The DOT policy should be clearly different than the non-regulated policy. You cannot mix the two. Because of state laws, it is very difficult to have only one non-regulated policy if your company operates in more than one state.

3. Maintain a standard operating procedures (SOPs) manual. Unfortunately, due to time constraints and workload, this important step gets pushed to the back burner. This project is worth its weight in gold. If the DER won the lottery and left a note saying, "It was fun. Good luck," and hops on the next flight to Tahiti and there was no trained backup or SOPs, chaos will ensue.

Even if it takes months to finish the project, take it one procedure at the time. Prioritize the hardest first, as having an SOPs manual is key to the success of any drug and alcohol testing program.

4. Provide employee and supervisor training. Employee and supervisor training is preventative medicine. The policy and expectations should be made very clear to the employees from the beginning. In fact, it is a requirement of programs mandated by DOT. In addition, supervisor training for signs and symptoms is a must.

Supervisors are on the front line. They know their employees and can notice changes that may be out of the normal for this person. Supervisors carry the burden of not taking action, and if there is an accident, the supervisor could personally be liable. Both trainings should provide handouts and a document that needs to be signed and dated for the employee’s file.

5. Audit your service agents. Companies need the help of service agents, such as laboratories, specimen collectors, alcohol technicians, third-party administrators (TPAs), medical review officers (MROs), and substance abuse professionals (SAPs). DOT recently provided a document to assist in how to audit the collection process, which can be seen here: https://www.transportation.gov/odapc/employer_brochure

Companies that collaborate with internal stakeholders and get their buy-in have more support than those who silo their group. If and when something happens, having built those internal relationships, you will find this to be one of your greatest tools. Likewise, get involved in the industry associations and find DERs with whom you can collaborate. There are lots of great DERs waiting for you!

This article originally appeared in the October 2016 issue of Occupational Health & Safety.