Suppose you send a driver out with a shipment to a customer, and in the meantime, their DOT drug test results return positive. According to the FMCSA, the employer is legally obliged to remove the driver from their safety-sensitive duties immediately. That means immediately. Meaning NOW.
However, with your shipment already on the way, and if you remove your driver now, you would have to find another driver to complete the delivery. This would definitely disrupt the shipment, as it can cause a delay in the process. And in the worst-case scenario, you may not have anyone available to get the job done.
You might think it will be all right if you get your driver to complete this particular shipment, and then remove the driver from his duties.
This would be a very serious DOT violation, and you may end up being subject to penalties.
Failed DOT Drug Test! What’s Next?
If you’re an employer and your driver fails a drug test, the regulations state that s/he must be removed from safety-sensitive duties immediately. Fortunately, this is not permanent. The driver can be reinstated to his position, provided that s/he goes through the Substance Abuse Program with a DOT qualified professional. This is referred to as the Return To Duty Process.
This includes a drug or alcohol treatment plan alongside counseling, after which the driver will be required to take a DOT-mandated Return to Duty test. If this is cleared, they can return to safety-sensitive duties. But they will have to go through a minimum of six random follow-up tests to ensure that the problem does not persist. This Follow Up Program can last as long as five years.
Follow Up Testing Program
The employer is responsible for managing the follow up program. But the regulations do not specify who gets to pay for it.
If a driver loses his job as a result of a failed drug or alcohol test, then what?
A driver cannot manage his own follow up program. He must either find employment, with the new employer taking responsibility for managing the follow up testing, or he must set himself up as an owner-operator and find a C/TPA willing to take him on.
In any case, the violation is recorded in the FMCSA Clearinghouse, and the driver is not qualified to drive until s/he successfully completes a Return To Duty test.
What if a Driver Refuses to Take a Test?
A refusal to take a DOT drug test is the equivalent of a failed test and must result in immediate removal from safety-sensitive duties. A driver who refuses a test is reported to the Clearinghouse and is subject to the Return to Duty process.
The exception to this is a pre-employment test (the driver may not be mandated to go through the Substance Abuse Program). However, the company looking to employ them cannot hire them for safety-sensitive positions.
Record Keeping
As an employer, you must keep a record of any and all positive or refused drug or alcohol tests for five years. Until January 5, 2023, you will be required to produce such records should they be requested about a former employee during the three year history check. After that date, a Clearinghouse pre-employment query will satisfy that requirement.
Whether you are a driver or an employer, it is essential to understand the consequences of a driver failing a drug test. Continuing to allow such a driver in a safety-sensitive position without having completed the Return To Duty process can subject both driver and employer to severe penalties from the FMCSA.
A failed drug test is not the end of the road. Returning to work is a simple, but necessary process.
If your driver fails a drug test, make sure you understand the RTD and Follow Up Process. Need a C/TPA that will help you though the process? Call InOut Labs today.
