The DOT Supervisor Manual - Center for Drug Test...

The DOT Supervisor Manual

Section 1: You Could Lose Your Home!Introduction to DOT Supervisor Responsibilities

Section 2: Something More than a HunchWhat is Reasonable Suspicion?Something More than a Hunch Football Field

Section 3: It’s the Law!DOT Prohibited Conduct & Rule Violations DOT Modal Rules Comparison Chart

Section 4: Drugs Don’t Work Here! Signs, Symptoms, and Effects of the DOT 5 Prohibited Drugs and Alcohol 10 Ways to Destroy Your LifeBreath Alcohol Concentration ChartStages of Alcohol Use Chart

Section 5: What Am I Looking For?Physical, Performance, and Behavior IndicatorsSupervisor Observation/Incident Documentation FormSearch/Evidence Documentation Form Checklist of Unsatisfactory Job Performance Search/Evidence Documentation Form

Section 6: It’s a No BrainerEffects on the Brain from Drug Abuse & Alcohol Misuse

Section 7: You Have to Make the Call!How to Make a Reasonable Suspicion DeterminationReasonable Suspicion Determination StepsDOT Drug &Alcohol Testing Contact Organizer

Section 8: You Talking to Me? How to Counter Employee Defense StrategiesIntervention Meeting PlannerWhere Can an Employee Find Confidential Help?

Section 9: Now It’s Your TurnPractice Video Scenes Video Worksheets

Quiz

Certificate of Completion (Back Cover)

Forms & Charts are in Italics for each Section

Notes

2 ©2005 Buckley Productions, Inc. ■ (877) 508-3979

Section 1: You Could Lose Your Home!

Introduction to DOT Supervisor Responsibilities“In 1989, the United States Supreme Court declared random drug testing to be legal. Since then, there have been over 6,000 court cases just focusing on the issue of drug and alcohol use at work. What we’re seeing in our research is a dramatic increase in the liability of management for not addressing, and not dealing with drug and alcohol use by your employees.

According to the latest government statistics:

■ 74.3 percent of current admitted drug users are employed.

■ 38 percent of all work-related accidents are drug and alcohol involved.

■ 20 percent of the people killed at work tested positive for drug use.

q The impact of drugs and alcohol on the American workplace is staggering.

q Abusers work less than 70% of the time and have 16 times more absences resulting in others having to do their work.

q Abusers are involved in accidents 3.6 times more than other workers, placing other workers at higher risk of injury or death.

q Abusers are 5 times more likely to file a worker’s compensation claim costing the company dollars that could be spent for bonuses and new equipment.

q Abusers use 8 times more hospital days and 3 times more sick benefits making health insurance more expensive for everyone.

q Abusers are responsible for 80% of the theft in the workplace. It is an issue that you the supervisor must deal with, not just because of the potential damage and costs to your employer, but because of the potential liability to you.

We are seeing a dramatic increase in lawsuits against management personally. You don’t want to have to face a lawsuit. You don’t want to find yourself having to deal with a judgment for failing to deal with the drug and alcohol use of your employees. Understand what your company’s policy is and when necessary and when appropriate, drug test those you suspect of use.

If you don’t deal with an employee who is abusing drugs or misusing alcohol, you could find yourself a defendant in a lawsuit. You could find yourself facing a judgment or a settlement.

A number of years ago in a case in New York, I was involved where an employee was seen drinking his lunch. His supervisor saw him, and did not

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What Supervisors Need to Know about Reasonable Suspicion 3

do anything about it.

Now that company had a policy. That policy said you cannot drink at work, even at lunch. That supervisor knew it was his responsibility to do something about that and he didn’t. That afternoon, that employee, operating an overhead crane dropped a load of aluminum, crushed, and killed a co-worker. The company settled out of court.

During his deposition that supervisor was asked, “Well, why didn’t you do something? You knew that there was a policy. You knew you had an obligation to prevent harm from drug and alcohol use. Why didn’t you do something?” His answer was not unusual. I’ve heard it many, many times. He said, “I didn’t want get the guy in trouble. I’ve known him my entire life. We play softball together. He’s my friend.” Some friend! This other fella is dead!

That supervisor settled out of court for $1.4 million dollars. That’s the liability you face if you don’t deal with drug and alcohol testing. The DOT has made it clear that it’s your obligation to exercise your discretion and test when appropriate. You must do so otherwise you could face an attorney; you could face a $1.4 million dollar judgment.

Where does your responsibility to deal with this issue come from? Well, your employer is responsible, legally, to maintain a safe work place. Obviously, as management, your obligation is to enforce that responsibility. So, what does that mean you need to do? You need to understand what your company’s policy is and you need to enforce it. You need to act.”

In this training session, you will be able to protect yourself, co-workers, and the public by:

■ Knowing how your role as a supervisor is affected by the DOT rules and your organization’s substance abuse policy.

■ Understanding what conduct is prohibited – both in the use of drugs and misuse of alcohol and the DOT consequences.

■ Knowing the DOT 5 Prohibited Drugs and prohibited alcohol use as well as the signs, symptoms, and effects.

■ Recognizing Physical, Performance, & Behavior Indicators associated with alcohol misuse and drug abuse.

■ Seeing how drug abuse and alcohol misuse over time can damage the brain. These images of the brain will make you want to question the argument that recreational drug use is ok.

■ Taking action when necessary and following a plan.

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■ Getting some tips on how to talk with employees, when they are faced with a drug test.

In the last section, you will get an opportunity to practice what you have learned today in 5 video practice scenes.

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Section 2: Something More than a Hunch

What is Reasonable Suspicion?

Something More than a Hunch Football Field

“Something More than a Hunch” Video Transcript“Well, as managers, as supervisors, you have to make the call. You’ve got to decide when to test somebody based on reasonable suspicion. As I go around the country and talk to people about this issue, I’m constantly asked, “Well, what the heck is it?” What is reasonable suspicion? Well, let’s understand that if you don’t test, if you don’t require someone to take a drug test when facts or circumstances warrant it, you’re at risk. If you test, we already know from this discussion, that there’s almost no risk to you at all. Okay, so what is it? What is reasonable suspicion?

The US Supreme Court has defined it as something more than a hunch. Well, doesn’t that give you great comfort in knowing what it is? To help you appreciate what it is, let’s talk about how it fits in our legal system. You may not be aware of this but thanks to OJ Simpson’s case and several other high profile cases, we are now getting a better sense of what the burden of proof is in our legal system.

So, let’s compare reasonable suspicion and something more than a hunch to our legal system, and other levels of proof. That’s what this is. Reasonable suspicion is proof. Proof of what? Proof that the person is intoxicated or under the influence? No. You need to get away from that idea that you’re trying to determine when someone is a drug addict or someone is intoxicated. You need to recognize when behavior has changed, performance issues have arisen, that gives you that gut instinct, that proof that that person may have violated the company’s against drug and alcohol use. That’s what this is. It has nothing to do with being intoxicated or being under the influence. It’s something more than a hunch to believe your rules have been violated.

All right so where does that fit? What is it? Well, let’s compare it to other levels of proof in our legal system. The ultimate burden of proof in our legal system is something called ‘proof beyond reasonable doubt.’ In our society, we’ve determined that in order to take someone’s freedom away, put them in jail; we must have the maximum amount of proof which is known as proof beyond reasonable doubt. It’s not absolute certainty that someone committed a crime, but it’s proof beyond doubt that they did it. That’s the ultimate burden of proof in our legal system.

Going from that to the least amount of proof, something more than a hunch, there’s other series of burdens of proof. For instance, in contract cases, the typical burden of proof is what’s called clear and convincing evidence. If I

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sell you my home and a month later you find termites in that house, you can sue me. And if you can establish, by clear and convincing evidence, that I knew those little buggers were there, you get your money back. It’s not proof beyond doubt that I knew that they were there. It’s just clear and convincing.

The next level going down from that is what’s called a preponderance of the evidence.

What is that? Well, it’s the standard typically used in arbitration cases. A union goes in and presents its side of the story to the arbitrator. The company explains its position. The arbitrator believes the union just slightly more than the employer, the union wins. Think of it in terms of the scales of justice. If 51 percent is in the favor of the union, they win.

So, quantifying this, now, let’s go back and look. Beyond reasonable doubt, let’s call that 90 percent sure. Going down from that, clear and convincing is about 70 percent certain that I knew those termites were there. By a preponderance of the evidence is 51 percent. Going down from that is what’s called probable cause. That’s the level that’s required for a police officer to have before they can search your home.

Now, at that stage of the proceedings, it’s not proof that you did the crime. It’s just proof that you are the likely suspect for that crime. And if they search your home, they’re going to be able to find evidence and then prosecute you and perhaps prove beyond a reasonable doubt you did it. But at that stage, at the search warrant stage it’s just likely that you’re the person who committed the crime. Going down from that is reasonable suspicion. And beyond that’s a hunch.

So, as a former high school and college football coach what I see here is a football field. At the one end you’ve got the hunch end zone and at the other end you have the you-go-to-jail end zone. So, why is it that OJ Simpson wasn’t put in jail and yet he owes hundreds of millions of dollars to the estate of his former wife? What was different? What did the prosecutors have to do?

In football terms what did the prosecutors need to prove to put OJ in jail? They started down at the hunch end zone. What did they have to do? They had to go all the way. They had to score in order to put OJ in jail in football terms.

What is it that the lawyers had to do in the case to get the money? Their standard of proof, their burden of proof was a preponderance of the evidence. So, in football terms, all they had to do was get by midfield.

What is it you have to do to test somebody based on reasonable suspicion? In football terms now all you have to do is prevent a safety. You just have to get out of the end zone! That’s reasonable suspicion. You need to have some fact

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or facts that take you out of the end zone.

So, think about it for a second. For alcohol, what fact would take you beyond a hunch? Would take you out of the end zone? The smell of alcohol? Smell of marijuana smoke? If you have some fact or facts that take you beyond a mere hunch that somebody may have violated the company’s drug and alcohol use policy, that’s all you need to test somebody based on reasonable suspicion.

And understand something. If you don’t test when there is reasonable suspicion and someone goes out and hurts or kills someone, that’s the standard you’re going to be held accountable to. That jury will judge you based on whether or not something more than a hunch existed at that time.”

[ Insert: Something more than a hunch diagram ]

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Section 3: It’s the Law!

DOT Prohibited Conduct & Rule Violations

DOT Modal Rule Comparison Chart

DOT Rules, Violations, and ProhibitionsWhat alcohol ase is prohibited?While alcohol is a legal substance, the DOT rules prohibit specific alcohol-related conduct.

Performance of safety-sensitive functions is prohibited:

■ While having an alcohol concentration of 0.04 or greater as indicated by an alcohol breath test

■ While using alcohol on the job

■ Within 4 hours after using alcohol *

■ When refusing to submit to an alcohol test

■ When using alcohol within 8 hours after an accident or until tested

(For employees required to be tested.)

*For FAA Check the DOT Modal Rules Comparison Chart

What happens if I test between .02-.039?Employees who have a breath alcohol concentration defined as 0.02 or greater, when tested just before, during, or just after performing safety-sensitive functions, must be removed from performing such duties. Under FMCSA rules a driver must be removed from driving for at least 24 hours and are not subject to re-testing in that time frame.

How is alcohol testing performed?Alcohol testing is conducted in two steps; first step is the screening test and if the results of the screening test are 0.02 or greater, a confirmation test must be performed. An Alcohol Screening Device (ASD) can be used only for screening tests for alcohol. If an employer is using saliva testing and is notified that an employee has not provided a sufficient amount for testing, the employer must arrange for breath testing. All positive alcohol-screening tests conducted by saliva testing must be confirmed by an evidential breath test (EBT).

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Can an alcohol test between .02-.039 be used as the basis for a reasonable suspicion test?An alcohol test between .02 and .039 cannot be used as the basis for a future reasonable suspicion test. A reasonable suspicion test must be based on current contemporaneous facts. Tests from a week before cannot be used as a reason to test again.

What happens if I test at .04 or above?If an employee tests .04 or above, the employee must be removed from performing safety sensitive functions immediately and referred to a Substance Abuse Professional (SAP). The employee may not return to the performance of safety sensitive tasks until the employee is evaluated by a Substance Abuse Professional (SAP), complied with treatment, and passes a Return-to-Duty Test alcohol and/or drug test. The employee must submit to Follow-up Testing as recommend by the SAP with at least 6 unannounced tests in the first 12 months after return to safety sensitive duty.

What is shy lung?If employer/DER is notified that an employee has not provided a sufficient amount of breath for testing (shy lung), they must direct the employee to obtain a medical evaluation within the next five days.

What if an alcohol test is cancelled?If an alcohol test is cancelled, it may need to be recollected if a result is required, such as in return to duty or follow up tests, otherwise a recollection is not permitted. A cancelled test is neither positive nor negative and the employer must not attach the consequences of a positive test. Nor can the employer/DER use a cancelled test as a negative test to allow an employee to perform safety-sensitive duties. A cancelled DOT test also cannot be used as a reason to test under company policy.

What drug use is prohibited? The rules prohibit any unauthorized use of DOT specified controlled substances. Use of illegal drugs (controlled substances) and/or the use of prescription drugs not prescribed to the employee for their use is prohibited for safety-sensitive employees while on or off duty.

DOT testing is for the presence of the following drugs or their metabolites.

Marijuana Opiates Cocaine Amphetamines PCP

An employee does not have to be under the influence or impaired at the time of the test. Nor does the drug use need to be on duty. The presence of the drug or the metabolite at cut-off levels established by DHHS results in a confirmed positive test.

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Prohibitions also include a verified positive test, and a refusal to take a required test.

No driver shall report for duty, remain on duty, or perform a safety sensitive function, if the driver tests positive or has adulterated or substituted test specimen for controlled substances. No employer having actual knowledge that a driver has tested positive or has adulterated or substituted a test specimen for controlled substances shall permit the driver to perform or continue to perform safety-sensitive functions.

What is the role of the Medical Review Officer?The MRO will review and interpret positive test results received from the laboratory. The MRO will also review the chain of custody to ensure that it is sufficient and complete.

When an MRO receives a confirmed positive, adulterated, substituted, or invalid test result from the laboratory, the MRO must contact the employee directly (i.e., actually talk to the employee), on a confidential basis, to determine whether the employee wishes to discuss the test result. In making the contact, the MRO must explain to the employee that if they decline to discuss the result, the MRO will verify the test as positive or as a refusal to test because of adulteration or substitution. Check the your substance abuse policy for your organization’s discipline provisions.

The role of the MRO will include the review of any prescribed medicines that have been taken that could explain the laboratory results. If you are taking a prescription and it explains the presence of the substance found by the lab your test is going to be reported as a negative. If you are using a prescription not issued to you that is prohibited, the MRO is going to report that use as a positive. Check your substance abuse policy for your organization’s prescription drug provisions.

How is drug testing performed?Drug testing identifies the drug metabolites produced in the urine by the ingestion of marijuana, cocaine, amphetamines, opiates, and PCP. Once a qualified person collects the employer sample, that sample will be sent to a DHHS certified laboratory. If the first immunoassay screen identifies any of these metabolites, a second analysis will be performed using GC/MS to confirm the specific drug metabolite. The results are reported to the Medical Review Officer (MRO).

If it is reported by the laboratory as a positive the MRO will contact you and give you an opportunity to explain why that substance was found in your sample.

If you can provide a medical explanation for that substance being in your urine then it is going to be reported to your company as a negative. If there

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is no medical explanation for that substance being present in your urine it is going to be reported by the MRO as a verified positive, and at that time your employer is required to remove you from safety sensitive tasks.

What is a split specimen?The MRO shall notify each employee who has a confirmed positive, adulterated, negative dilute with a creatinine concentration between 2 mg/dl and 5 mg/dl or substituted test that the employee has 72 hours in which to request a test of the split specimen. If the employee requests an analysis of the split specimen within 72 hours of having been informed of a verified positive test, the MRO shall direct, in writing, the laboratory to provide the split specimen to another DHHS-certified laboratory for analysis. The employee may not request a reanalysis of the primary specimen.

If the analysis of the split specimen fails to reconfirm the presence of the drug(s) or drug metabolite(s) found in the primary specimen, or if the split specimen is unavailable, inadequate for testing, or untestable, the MRO shall cancel the test and report cancellation and the reasons for it to the DOT, the employer, and the employee.

When can an employee go back to work after a verified positive test?To return to work after a rule violation, or a verified positive, or a refusal to test,the employee must complete the return to duty process.

What constitutes a refusal to test? A person who refuses to be tested shall not be permitted to perform safety sensitive functions. A refusal shall be treated as a positive test and that person considered medically unqualified to perform their safety sensitive duties.

As an employee, you will be considered to have refused a test if you:

■ Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT modal regulations, after being directed to do so by the employer. This includes the failure of an employee (including an owner- operator) to appear for a test when called by C/TPA.

■ Fail to remain at the testing site until the testing process is complete, provided, that an employee who leaves the testing site before the testing process commences for a pre-employment test is not deemed to have refused to test.

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■ Fail to provide a urine specimen for any drug test required by DOT regulations; provided, that an employee who does not provide a urine specimen because he or she has left the testing site before the testing process commences for a pre- employment test is not deemed to have refused to test.

■ Fail to permit the observation or monitoring of your providing a specimen in the case of a directly observed or monitored collection drug test.

■ Fail to provide a sufficient amount of urine when directed, and it has been determined, through a required medical evaluation, that there was no adequate medical explanation for the failure.

■ Fail or decline to take an additional drug test the employer or collector has directed you to take.

■ Fail to undergo a medical examination or evaluation, as directed by the MRO as part of the verification process, or as directed by the DER. In the case of a pre-employment drug test, the employee is deemed to have refused to test on this basis only if the pre-employment test is conducted following a contingent offer of employment.

■ Fail to cooperate with any part of the testing process (e.g., refuse to empty pockets when so directed by the collector, behave in a confrontational way that disrupts the collection process).

■ If the MRO reports that you have a verified adulterated or substituted test result, you have refused to take a drug test.

■ Fail to appear for any test within a reasonable amount of time after being notified.

■ If you refuse to take a drug test, you incur the consequences specified under DOT operating modal regulations for a violation of that DOT operating administration.

■ Refusal includes refusing to take a test when asked, failure to cooperate in the test process, failure to execute all necessary documents, and having a test result that comes back or is reported back as adulterated, substituted, or inconsistent with human urine.

What does an employee need to do to return to safety sensitive duty? Employers are required to give employees who test positive, refuse, or substitute, or adulterate a test, a list/referral to a SAP. This is required even for pre-employment tests and even when the employee will be terminated because of a rule violation.

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The SAP will identify the employee, the employer organization, the type of test or rule violation, and what the employee tested positive for. Then set up a time for the initial employee evaluation. The purpose of the initial evaluation is for the SAP to determine if the employee has a substance abuse problem. The SAP must recommend education or treatment.

The employee then must follow through with their recommendation. The SAP will do a second evaluation to determine if the employee has successfully completed their recommendations.

If the SAP decides that the employee has complied with the SAP recommendations, they will tell the employer that the employee has done what is necessary to be considered for a return to safety-sensitive duty, and provide the employer with a written plan for testing that includes type, frequency and duration of testing. The SAP also must make continuing care recommendations if deemed necessary. These recommendations can become part of a return to work agreement. The employee will have to successfully pass a Return-to-Duty test(s) before the employee can be considered for safety-sensitive duty.

The employee must also agree to submit to follow-up tests as recommended by the SAP that include a minimum of 6 unannounced tests in the first 12 months after the employee has returned to safety sensitive duty. These follow-up tests are in addition to the random testing.

Who Pays? Payment for the SAP evaluation, the plan for treatment, counseling, or education is between you and your employer to decide and may be governed by existing labor management agreements and health care benefits.

DOT rules do not require employers to pay these costs but there may be state laws that affect who pays.

What is shy bladder?If you cannot provide a sample, you will be offered up to 40 oz. of water to drink during the 3-hour waiting period. It is not a refusal if you decline to drink water at collection. If you still cannot supply a sample, you will be asked to get a medical evaluation within 5 days. If there is no medical explanation, it is a refusal to test.

What must the employer do when the MRO reports a negative dilute?There is another aspect of refusal that is a result of recent changes in DOT rules related to a negative dilute specimen being reported by the MRO.

If the MRO informs the employer that the test was a negative dilute and the creatinine concentration of the specimen was equal or greater than 2mg/dl,

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but less than or equal to 5 mg/dl (considered to be inconsistent to be human urine), and the MRO directs the employer to conduct a recollection under direct observation, the employer must do so immediately. If the employee refuses that’s considered refusal to submit a test and that will be dealt with according to the discipline in your policy.

If the creatinine level is greater than five mg/dl, the employers can, if they choose to, ask that person to immediately submit to another test. Such recollections must not be collected under direct observation unless there is another basis for use of direct observation. If the employee refuses, that is considered refusal to take a test and that will be dealt with according to the discipline in your policy.

Do DOT Rules require the employer fire an employee for a verified positive test? DOT rules do not mandate that an employee who tests positive or refuses to take a test be fired. That is left to the employer/employee relationship. Check the employer company’s policy to see what the consequences of testing positive or refusing to take a test are; but at a minimum, employers are required by the DOT to provide a list of Substance Abuse Professionals.

According to DOT rules, however, anyone who has tested positive or who has violated the company’s policy and refused to take a test, before they can return to a safety sensitive task with the current employer or any other DOT regulated employer must show proof that they have been evaluated by a substance abuse professional and that they have completed whatever was recommended in the way of counseling or treatment.

What happens if an employee applies for another covered FMCSA safety-sensitive job? The employer might want to remind the employee that these tests follow them. The employee should be aware that if they change employment and apply for a safety sensitive job that the new FMCSA employer must ask applicants if they have failed or refused a pre-employment drug or alcohol test within the last 2-years if the employee is operating solely as an intrastate employee, or 3-years if they operate at any time as an interstate employee when such test is required under Part 40 Rules. The rule applies regardless of whether or not the applicant/employee is hired.

This information must be released with employee consent and should include any applicable information regarding rule violations and SAP referral status.

The SAP recommendations must be completed. Time breaks in the follow-up period cannot be counted.

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Self-Referral (FMCSA Only)

Employees may self refer. They may come forward and say, “Look I’ve got a problem with drugs, or alcohol and I need to take care of that.” Appreciate the fact that there are at least two federal laws that protect their rights to do that. You cannot interfere with those federal rights granted to them under Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA).

What are the conditions for self-admission under FMCSA Rules?The FMCSA employer cannot discipline an employee provided the requirements of the FMCSA self-admission provisions are met. If the driver voluntarily comes forward then that voluntary admission must be in accordance with the written self-identification program in your policy. The covered driver cannot be allowed to self –identify as a way to avoid a drug or alcohol test. The driver cannot self-identify after performing a safety-sensitive task. The driver cannot be allowed to perform safety sensitive tasks after they have self-identified. The driver cannot be allowed to perform safety sensitive tasks until they can show proof that they have been evaluated by a substance abuse professional and that they have completed whatever was recommended in the way of counseling or treatment. The employee must have an alcohol test below .02 and/or a negative drug test before they can return to safety sensitive duty.

Can you require someone who has voluntarily come forward for treatment or counseling to submit to some kind of last chance agreement or follow-up testing? No. Make certain you check with your local state’s laws because you will find that when someone voluntarily comes forward they need to be left alone to seek the care that they need.

Okay, so you have an employee who has been selected for testing, for whatever reason, random, reasonable suspicion, post accident, and all of the sudden they say, “Oh wait a second, I’ve got a drug or alcohol problem.” Well, that is too late. I am sorry. If they have voluntarily come forward prior to being selected for testing, then they’re protected, but as long as the test selection process has begun, they already have to submit to testing or refuse.

Who can I ask in my organization about DOT Drug and Alcohol Testing Rules?Every company covered under DOT Rules must assign a person to be the Designated Employer Representative (DER) to answer covered employee’s questions. If you do not know who is your DER, ask someone in the safety, or human resources, or risk management departments.

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Under what circumstances can an employee be tested? According to the DOT rules, what is expected of you, as a supervisor is that you drug test or decide to drug test an employee when there’s reasonable suspicion drug or alcohol use. You need to know your company’s policy in order to cover this, in order to do this properly. Your company substance abuse policy defines who is considered a safety sensitive employee and under what circumstances they can be tested.

DOT Occasions for Testing■ Pre-employment

■ Random

■ Post Accident

■ Return to Duty

■ Follow-up

■ Reasonable Suspicion

Those circumstances include pre-employment testing, post accident testing, random testing, return to duty and follow up testing, and reasonable suspicion testing.

Management Determined DOT Tests

Under DOT rules, pre-employment testing is for drugs (alcohol is allowed but not required) and random testing for drug and alcohol. Pre-employment is conducted before an offer of hire has been made. The same applies to employees who transfer into a position that requires them to perform safety sensitive duties.

Pre-employment and Pre-Duty tests are reviewed by the MRO, applicants may ask for a split sample to be tested, and a list of a SAP’s will provided if the result is positive.

Random tests are conducted on an unannounced basis. Random alcohol tests are performed just before, during, or just after the performance of safety-sensitive functions. Random drug tests may be done at any time. The employee is randomly selected from a “pool” of safety sensitive employees subject to testing. The testing dates and times are unannounced and are unpredictable throughout the year. Each year, the number of random tests conducted by the employer must equal a certain percentage of all the safety-sensitive employees. The random rate is set for each industry. Therefore, aviation employees could be tested at a rate different from commercial motor vehicle employees. There is no random alcohol testing of employees covered under Pipeline (PHMSA) or Coast Guard (USCG) Rules.

Return to Duty If the employer organization has a return to duty option in

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the employer policy, then the employer is responsible for return to duty tests and follow up tests. Return to duty tests are conducted when an employer has complied with the substance abuse professional requirements. A negative test result is required before the employee may return to safety sensitive duties.

Follow-up tests are conducted on an unannounced basis and at least six tests must be conducted in the first twelve months after a safety-sensitive employee returns to duty. Follow-up testing may be extended for up to 60 months following return to duty and may include additional drugs. The SAP determines the testing parameters, type, frequency, and duration.

Post Accident Post-accident testing verifies whether drugs or alcohol were or were not a contributing cause to the accident. Post accident testing is triggered whenever there is a DOT reportable accident. The definition of accident is defined by modal rules.

Check the Modal Comparison Chart for your modal rules.

Under FMCSA rules post-accident tests are conducted after an accident where there is a fatality. Post Accident testing is required when the employee receives a moving citation in one of the following situations: if there has been disabling damage to a vehicle and it requires tow-away, or if there is bodily injury that requires medical treatment away from the scene of the accident.

Safety-sensitive employees are prohibited from using alcohol for 8 hours following an accident or until they have undergone a post-accident alcohol test, whichever occurs first.

Drug testing should be administered within two hours, but no later than 32 hours after the accident. If the testing cannot be done, there must be written documentation stating why the tests could not be done. Alcohol testing should be administered within two hours, but no later than 8 hours after the accident. If the testing cannot be done, there must be written documentation stating why the tests could not be done

Note: In addition, many organizations require testing based on the severity and dollar loss. These tests would be non-DOT. Check your organization’s substance abuse policy or contact the employer designated employer representative (DER).

Of all those test events, only one requires the exercise of your discretion and that is reasonable suspicion.

Reasonable Suspicion Testing: Conducted when a trained supervisor observes behavior or appearance that is characteristic of alcohol misuse or controlled substances abuse.

The supervisor’s determination that reasonable suspicion exists to require an employee to undergo a reasonable suspicion test must be based on specific

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contemporaneous, articulable observations concerning the appearance, behavior, and speech or body odors of the employee. The observations may include indications of the chronic and withdrawal effects of controlled substances.

It is always a good practice to use two supervisors whenever possible. Under FAA Rules, the number of covered employees determines the number of trained supervisors required.

Reasonable Suspicion testing requires:■ A trained supervisor shall make the determination based upon specific,

contemporaneous, articulable observations concerning the employee’s appearance, behavior, speech, or body odors.

■ The supervisor or company official must have received the DOT required reasonable suspicion training in detecting the signs and symptoms of drug abuse and alcohol misuse.

■ The observations for a reasonable suspicion determination for alcohol must be made during, just preceding, or just after the employee’s performance of safety sensitive duties.

■ Observations for a drug test may be made anytime the employee is on duty. The employee may only be requested to take a reasonable suspicion alcohol test during, just preceding or just after performing safety-sensitive duties.

■ The supervisor who makes the determination that reasonable suspicion exists for alcohol testing cannot conduct the breath alcohol test on the employee.

■ An alcohol test should be administered as soon as possible. If the test cannot be administered within two hours of the determination, the employer must prepare and maintain on file a record stating the reasons why the alcohol test could not be properly administered. If the alcohol test cannot be administered within 8 hours following the determination, the employer must cease attempts to administer an alcohol test and must document the reasons for not administering the test.

■ Not withstanding the absence of a reasonable suspicion alcohol test, no driver shall report for duty or remain on duty requiring the performance of safety-sensitive duties while the employee is under the influence of or impaired by alcohol, as shown by the behavioral, speech, and performance indicators of alcohol misuse. Nor can the employer permit the employee to perform or continue to perform safety sensitive duties until an alcohol test indicates the employee’s alcohol concentration measures less than .02; or 24 hours have elapsed following the determination.

Notes


■ No employer can take action under DOT rules against an employee based solely on that employee’s behavior and appearance, with respect to alcohol use, in absence of an alcohol test. This does not prohibit the employer taking action under their substance abuse policy.

■ The supervisor’s observations to require a test must be documented by the supervisor within 24 hours of the determination, or before the results whichever is earlier.

■ The employee must sign the chain of custody form attached to the urine sample to be analyzed.

■ A written record shall be made of the observations leading to an alcohol or controlled substances reasonable suspicion test, and signed by the supervisor or company official who made the observations, within 24 hours of the observed behavior or before the results of the alcohol or controlled substances tests are released, whichever is earlier.

When does reasonable suspicion testing happen? Well, it is based on the determinations made by a trained supervisor, such as you, when there are articulable, contemporaneous facts that suggest the employee may have used a prohibited substance. Now what does that mean?

Well, contemporaneously means it is happening now. You cannot decide to test somebody based on suspicion when the facts occurred last week or over the weekend. Contemporaneous means they are happening at the time you are making the observation. You must test.

Articulable. What does that mean? If you can speak the words that describe the basis of your test or if you can write the words that describe the basis of your test that is something more than a hunch. The policy will help you understand what your obligations are in relation to reasonable suspicion testing. Know your company’s policy and follow it.

■ Review it carefully so that you are able to explain it. If you have any questions, contact your designated employer representative (DER).

■ Take action when appropriate and communicate with the employees about the organization’s commitment to a drug-free work place. Employees need to know the types of tests, DOT Rule violations, and DOT consequences.

■ Next, be able to identify performance, behavior, and appearance indicators, as well as physical evidence of alcohol misuse or drug abuse.

■ Do not try to diagnose the problem or jump to the conclusion that drugs are at the core of the poor performance. Simply recognize poor performance that may be related to substance abuse.

Notes


■ Document your observations.

■ Enforce the performance and safety standards written in your policy.

■ Avoid the temptation to bend the rules.

■ Don’t be persuaded by an employee’s explanation or ignore the problem hoping it will go away.

■ Send the person for testing if necessary to protect the public and co-workers.

■ The experts will do the rest.

You will learn more about performance indicators and the reasonable suspicion determination procedures later in this program. The DOT rules and your company’s substance abuse policy provide you a road map for protection

Notes


[ Insert DOT Modal Alcohol & Drug Testing Rules

Comparison Chart ]

Notes


Section 4: Drugs Don’t Work Here!

Signs, Symptoms, and Effects of the DOT 5 Prohibited Drugs and Alcohol

Stages of Alcohol Abuse Chart10 Ways to Destroy Your LifeBreath Alcohol Content and Its Effects Chart

At this point, let me cover the drugs that are covered in the regulations. And those, specifically, are the illegal drugs, and there are five of those, and then, of course, there is the one legal drug, which is alcohol.

So the five illegal drugs are: marijuana, cocaine, amphetamines, opiates, and the final one phencyclidine or PCP.

These drugs can be placed in three primary groups, which are all similar in terms of behavioral characteristics. The three groups are depressants, stimulants, and hallucinogens. So, lets look at them one at a time.

✹ DepressantsAlcohol The depressants certainly include alcohol, which is a central nervous system depressant. Alcohol is the only legal drug in this entire process. It is a central nervous system depressant so it makes you lethargic and sleepy. And there is a variance of the impact that alcohol has depending on the amount consumed and your body weight.

But let me talk about at least some of the obvious signs that occur as you consume greater and greater rates of alcohol. First if you consume large amounts and, again, understand there is a variance going to occur here in terms of what’s large. For some person that may be two drinks, for other persons that maybe 3-4 drinks depending on body weight.

But if you start with the initial phases, you will see some slurred speech, staggering gait and altered perception both in depth and time. Suffice to say that at the .02-.039 level, an individual certainly has fine motor coordination that has deteriorated, their depth of field in terms of vision, visual acuity, and peripheral vision is impaired, their reaction time is significantly reduced, as well as their short term memory functions and certainly some of the mores and social inhibitions which the individual otherwise might act under have been somewhat curtailed at that level.

Once we get past the .039 and into the range of .04 and higher, we start recognizing gross motor impairment, slurred speech, staggering gait, the usual characteristics that we try to ascribe to somebody who is intoxicated. At that point, certainly, the individual is not capable of performing safety sensitive functions.

Notes


As you then continue to consume alcohol, you will start seeing a different set of behaviors. Specifically, you are going to see respiratory depression, coma, and ultimately death. Again, follow me; there is a nice sequence of his process, which makes it easy to look, behaviorally, at the individual to start recognizing the level of intoxication.

It is not your job, nor is it important for you to be able to say ’Oh, this person looks like he’s a .03’ or ‘She looks like she’s a .5 intoxication level.’

What is important is that you can recognize behaviors associated with different blood alcohol levels that are endemic to the consumption rate. It is typical, however, of many other central nervous system depressants. So, whether you are now using alcohol, opium, or morphine, which is an opium derivative, there may not be a distinction in terms of the physical and behavioral characteristics associated with that use.

Of the six drugs altogether that are being tested for, we actually only have two characteristic drugs. We have depressants, which are opium and alcohol, and they cause the person to be lethargic. Then we have the stimulants, that is cocaine and amphetamines, which innervate the individual, and make them go into hyperspace.

And then we’ve got phencyclidine which is the hallucinogen in the group and, quite frankly while its not a fashion drug at this point any more, its recognized as probably being one of he most dangerous drugs that an individual can use.

Depressants Stimulants HallucinogensAlcohol Cocaine/Crack Phencyclidine

Heroin/Oxycontin Amphetamines LSD

Marijuana Methamphetamines Mescaline

We can combine the six drugs into three categories—we have depressants, stimulants, and hallucinogens. And as far as I am concerned, if you can remember the characteristics of these three major groups that is really what you need to know more than anything else as far as the drug effect goes.

Notes


Progression of Use

As far as I am concerned, any kind of addictive potential exists and starts with experimental use. From that you move up to social use. You go to a party. You have a couple of cocktails. This kind of use is usually not a problem. Of course, for drugs, it is a problem because prohibited drug use is illegal.

From social use, you move up to purposeful use. At this stage of use, you are actually relying on the effect of the chemical. So if you are a bad dancer, then drink alcohol you think you have become a good dancer. If you are socially inept or withdrawn, and you use of drugs or alcohol to become the life of the party, that is purposeful use. It allows you to get to a point that you feel you could not otherwise get to.

Another aspect of purposeful use is the removal of symptoms. If you have a bad day and you come home and have a couple of cocktails to forget, that is purposeful use. You are trying to obliterate the memory of that bad day. Again, it does not have to be only alcohol. You can have a couple of joints. We hear about recreational users, but they are purposeful users. They are trying to get a disassociation from their everyday life and feel more creative, or artistic, or simply mellow.

hPurposeful use is probably also the first step to addictive use. From purposeful we then come to abusive use. Abusive use is simply the stage when the drugs start giving you difficulty in your life style. Examples: Your spouse is indicating that your use is a problem. Maybe your employer has noticed some absenteeism or your failure of some performance functions. Your kids may want to tell you that you have a problem and do not want you at the high school basketball game. Financially it may be making an impact on you. Legally it may be making an impact on you. You may be having legal problems like a DWI.

From there, the final use is addiction. This is where you are psychologically and physically addicted. My theory is that people stay in the addictive process because they fear the withdrawal. We all know that alcohol withdrawal is the most dangerous kind of withdrawal because more people die in alcohol withdrawal than in any other kind of withdrawal.

You do not have to go through all these stages of use. You can become addicted with the first use of the substance. If extended for long periods we experience a doubling in tolerance for alcohol where the person will display the same behavioral characteristics while being at twice the BAC as they were previously. It is an acquired issue. The body needs more of the alcohol in order to generate a certain amount of effect. Of course, it becomes extremely problematic for the person. We can graphically see the effects of alcohol on feelings and behavior on a quantity frequency index chart or Breath Alcohol

Notes


Concentration (BAC) Chart. The frequency of the number of drinks over a period repeated on a regular basis is a strong indicator of addiction potential. When use suddenly stops, we find the person going into withdrawal.

I covered that a moment ago, but here are some of the symptoms of withdrawal. And it is interesting that, as we look at these symptoms, you will recognize that for every effect that a particular drug causes, in withdrawal there is an equal and opposite reaction.

Drug Effect WithdrawalDepressant Lethargic Agitated

Stimulant Agitated Lethargic

So, if we are looking at the central nervous system depressant, when an individual withdraws, they become exceedingly agitated. On the other hand, when we are using a stimulant, they become extremely lethargic when they go into withdrawal symptoms.

So again, you have to understand that the behavioral issues that we are talking about can actually change on you. Its important to recognize, as far as I am concerned from a behavioral point of view, not that you understand the symptom otology as much, as that you can recognize the individual and their change of behavior patterns. So someone who is normally active, then suddenly becomes lethargic, that is a change for that person. And that change may be indicative of drug use. And that change would possibly be the material that you would use for for-cause testing, or probable cause, reasonable suspicion testing.

So, we see then some of the withdrawal symptoms. Usually these are associated with depressant type of drug-restlessness, insomnia, anxiety, convulsions, and ultimately, of course, death if the withdrawal symptoms are significant.

Document Changes in Behavior

Marijuana Switching now to marijuana, as again a broad scale symptom effect, the physical effects – increased heart rate, and blood shot eyes. We cannot necessarily determine from behavioral characteristics what the pulse rate is, but we can look into their eyes and see when they are blood shot.

The dry mouth disease is commonly associated with a smoker. They will speak as though they have talcum powder in their mouth. You can hear their mouth just kind of tacking away, smutching away as it were. Increased appetite. Again, damage to the endocrine system—we are talking about infectious potential with this person, the belaboring of the general respiratory functions, and potential cardiac problems. Their concentration

Notes


levels are distorted, short-term memory gets lost, reaction time depreciates significantly, and their reasoning and rationalizing, extrapolating from fact, becomes impaired.

Those are classic symptoms. There’s one other one from an operational point of view that I think is particularly significant, besides the blood shot eyes and the reduction of reaction time potential, and this is the voice. Generally speaking, an individual who has smoked within recent history- several hours prior to—has their voice subtly tend to drop about an octave, And it’s a very subtle way of picking up that someone may have potentially smoked marijuana.

But keep in mind as we discuss these kinds of notions, again, these can also be allergies. Ragweed can cause red eyes: so red eyes are not conclusive of prohibited drug use by any means. Again, when we talk about reasonable suspicion or for-cause drug testing, what we are really trying to do is eliminate the notion of the drug caused behavior by testing the drug out of their life. And then if there are still those symptoms in existence and there are no drugs in their possession, there are no drugs in their system, then we have to look for other physical symptoms. Again, we come back to the notion of reasonable cause testing being a proactive process

One of the profound health effects of marijuana is that it has been recognized to be 25 times as carcinogenic as nicotine and tobacco.

Opiates Opiates have been number four in use but are coming up quickly. Over the last two years, we have seen a significant market influx of opiates. Opiates create a feeling of euphoria, a feeling not as instantaneous and not as blissful as cocaine by any means, quickly followed by the nodding off process, drowsiness, but still mellow. And again, you can see as I am using these terms the addictive potential in some of those words. Just being able to mellow out and kick back for some people has an attractive concept. The notion of being in charge of their feelings and making changes on their own, eludes these people. Instead, they get involved with the drugs.

Other associated issues of constricted pupils, nausea, and vomiting are common. Watery eyes, itchiness and certainly the classic symptoms of what was then called railroad tracks- needle marks if you will up the arms, between the toes, at the edges of the eyelids, and all sorts of strange places. The form of administration that is being promoted now is that it be smoked as in, historically, the old opium dens. Again, the effect of smoking opium is that of marijuana or alcohol in that the individual becomes severely lethargic, coordination-fine motor coordination fails, concentration ability deteriorates--the bottom line is that they could simply not perform in safety sensitive functions.

So, those are three of the drugs, if you will, including alcohol; that function as

Notes


depressants.

✹ Stimulants

Turning our attention now to the second set which are the stimulants; we have cocaine and amphetamines in this group.

Cocaine

Cocaine, as is well known historically, use to be snorted by way of white powder. Now the most common level of usage of cocaine is by way of smoking crack, crack being readily available throughout the country.

Cocaine is a central nervous system stimulant. So with that you are wired for sound, the highs induced at outrageous rates, I mean we are talking seconds. Seconds after administration of the drug the person is on a high. The high is total euphoria. They are able to jump tall buildings, conquer millions, and do the most outrageous, but only for 20 minutes. And that is the sad part of the fantastic high—it only tends to last for about 20 minutes. And then the person starts to crash down and with that, we find that re-dosing is a requirement. So it is easy to see how people then can get into an addictive process if you will, to keep that high going because it feels so outrageously good.

Amphetamines Amphetamines tend to cause the same process. Usually we are looking at methamphetamine, right now, as the fashion drug, which can be readily produced. Their use, again, generates itself into a rapid rush not anywhere near that of cocaine. The rush tends to last somewhere between 2-3 hors and then followed by agitated depression. The addictive potential of both of these drugs is extremely high, especially that of cocaine.

✹ HallucinogensPhencyclidine (PCP) The last of the illegal drugs that I want to address is PCP. It is in the hallucinogen group. We find very little PCP used in the workplace simply because its function is unpredictable in terms of the hallucinogenic effect. Very often, it results in violence and rage. Disassociative episodes occur on the part of the individual in which he does not even recognize body parts belonging to him. Frequently we see these individuals become extremely agitated and at the same time become physically very strong. In confronting them bodily injuries may occur.

So now, we have covered Alcohol, the legal drug, with all its confusion in use and what is appropriate, and what is not appropriate and the five illegal drugs and their consequences.

Let me summarize as I have done all long here by saying do not worry whether you know the behavioral characteristics of each drug or not. Worry about whether you know the characteristics of depressants, of stimulants, and hallucinogens. And as you know those characteristics know that their withdrawal symptoms tend to be the exact opposite. So when you see this individual variance in behavior, I think that is when you need to be concerned that, indeed, drugs are the cause for this process. And if there are drugs, at least they can get rehabilitation, and if its not drugs they can get other appropriate care that they need.

Notes


Notes


[ Insert 10 Ways to Destroy Your LIfe ]

Notes


Section 5: What Should I be Looking For?

Checklist of Unsatisfactory Job Performance Supervisor Observation/Incident Documentation Form Search /Evidence Documentation Form

Introduction to Signs, Symptoms, and Performance Indicators As supervisors and managers for your employer, you are the eyes and the ears of that work place. Your employer has an overall obligation to establish and maintain safety, but you’re the eyes and the ears for making that happen. You’re already doing most of what’s necessary to protect the safety of your work place. You’re focusing in on performance issues. You’re trying to get the job done.

What we’re trying to help you understand through this training program is that you also need to become more aware of the behavioral aspects of the folks that you supervise and take action when those behavioral traits tell you that there may be drug and alcohol use happening.

Be aware of what’s around you. There may be things, physical things that you can actually see. Talking to one state trooper recently, he was telling me that in a work place he saw little ends of baggies with little bits of white powdery substance remaining in them. That ought to tell you something’s going on. If you find things like that in your bathroom, or laying around in remote areas of your work places, it ought to trigger an understanding in your head that there is something happening there besides producing widgets.

What are you looking for?Let’s talk first about the indicators of when reasonable suspicion testing should be done. What are you looking for? Two things. Physical Evidence and Performance Indicators.

Physical Evidence

Physical evidence includes the presence of drugs such as plastic bags of marijuana, small containers of pills, vials or envelopes of powder, or empty beer bottles, wine or liquor bottles.

Notes


You are looking for paraphernalia such as:

BalloonsAluminum foilWrappersCocaine sniffing tools such as small spoonsCrack pipes Holders and pipes for smoking marijuana

You looking for physical substance signs and symptoms that are usually apparent only after employees use has reached a dangerous level. The physical signs and symptoms include:

The odor of alcohol or marijuana smoke

Intoxicated behavior such as swaying or staggering

Changes in speech that might become slow, slurred or incoherent

Hand tremors or poor coordination

Blood shot eyes or watery eyes or pupils that are unusually large or small

Chronic runny nose or sores around the nostrils

Blood spots on shirtsleeves

You are looking for changes in appearance that can include:

Deteriorating personal appearance

Poor hygiene

Rapid weight loss

Sagging or a shallow appearance to the face

Unusually dirty or rumpled clothes

While many substance abusers avoid doing drugs on the job, advanced states of dependence can bring on more reckless behavior including increasingly re-dosing while on the job. The employee who feels impelled to use on-the-job will look for a place as private as possible or use the cover of anonymity in a crowd.

Notes


The most common sites for the on-the-job use include:

Parking lots

Cars and other vehicles

Employee lounges

Lunch rooms

Restrooms

Changing areas

Equipment storage areas

Other remote area

Performance IndicatorsWe’ve already talked about how drug and alcohol use affects work places in terms of increased absenteeism, lack of performance and turn over, but there are also some other things that you need to be aware of and you should be looking for that will help you do a better job in protecting your company.

You should be looking for behavioral indicators such as appearance, behavior, speech, body odors related to substance abuse. Some of the behavioral indicators you are looking for include:

Repeated forgetfulness

Indecision or erratic judgment

A lackadaisical or I don’t care attitude

Impulsive or temperamental behavior

Secretive behavior such as inappropriate whispering

Wearing sunglasses indoor

Frequently being alone when other employees normally congregate together such as at lunch time and break

Refusal to accept authority

Depression

Anxiety or disorientation

Sleeping on the job

Avoidance of medical attention after an accident

At the end of this section you will find a Supervisor Observation/Incident Documentation Form that you can use as a tool to trigger your memory of what it is you’re seeing, your observations, and performance behaviors that you can document.

Notes


You need to document this stuff! But understand this ‘Observation/Incident Documentation’ Form is designed to help trigger your memory. Just because what you are faced with isn’t on the ‘Observation/Incident Documentation’ Form doesn’t mean that you don’t test. Always try to confirm what you’re observing with some other level of management and then test. For drugs, these observations can be made any time. For alcohol, you must make the observations just before, during or immediately after the covered employee performs the safety duties.

If you discover a physical evidence such as a suspicious substance or tool you can use this four step process:

It’s not your job to identify whether the substance you found is a controlled substance.

But if you suspect it might be, you need to do the following four things:

1. Get a witness who can corroborate what you have found, and what you do with it.

2. Secure the item. For example, seal it in a flyer bag so it cannot be tampered with and then put it in a safe or a locked file cabinet drawer. It’s probably not a good idea to lock it in your desk, as you want to avoid being seen as doing anything inappropriate.

3. Document and describe exactly what you found and what you did and ask your witness to sign the document. Again, remember your job is not to make assumptions about what the item might be, but rather to just describe it and the circumstances surrounding the finding of it.

4. Contact the appropriate person such as your Designated Employer Representative (DER), Security, or Human Resource Manager and ask for further instructions.

Notes


[ insert Checklist of Unsatisfactory Job Performance ]

Notes


[ insert Search/Evidence (Discpreancy) Documentation Form ]

Notes


Section 6: It’s a No Brainer!

Effects on the Brain from Drug Abuse & Alcohol Misuse

Dr. Amen’s Spectra Scans of the Brain To give you some idea of why there may be performance issues, and why there may be behavioral changes, the Spectra scans in the video illustrate what brain damage looks like. Look at how the brain is physically changed as a result of drug and alcohol abuse.

Dr. Amen writes: “The brain is the most complicated organ in the universe. There is nothing as complex as the human brain. Nothing. It is estimated that we have 100 billion neurons or nerve cells and trillions of supportive brain cells called glial cells.”

“Each neuron is connected to other neurons by up to 40,000 individual connections between cells. You have more connections in your brain than there are stars in the universe. Also, even though your brain is only about two percent of your body’s weight, it uses twenty five to thirty percent of the calories you consume. Your brain is the major energy consumer in the body.”

“The brain is a three-pound supercomputer. It is the command and control center running your life. It is involved in absolutely everything you do. Your brain determines how you think, how you feel, how you act, and how well you get along with other people. Your brain even determines the kind of person you are. It determines how thoughtful you are; how polite or how rude you are. It determines how well you think on your feet, and it is involved with how well you do at work and with your family.”

As you can see by the brain scans that are in the video alcohol misuse and drug abuse can have some serious consequences. You have the same brain when we go to work on Monday that we had on the weekend. You owe it to yourself, co-workers, and the public to protect your brain.

Do you want someone in a safety sensitive position, like driving an 18-wheeler next to you on the road and with your family, or driving your children to school who’s brain has been altered permanently by chemicals, by drug use? More to the point, if someone’s behavior has changed and you don’t recognize it and you don’t take steps to prevent the harm caused by that person’s behavior, then you could be liable for any injuries they cause.

Notes


Section 7: You Have to Make the Call!

How to Make a Reasonable Suspicion Determination

Reasonable Suspicion Determination

You Have to Make the Call! Video Transcript

Reasonable suspicion is something more than a hunch. That’s all it is. Well, where does that hunch come from? Well, it starts with an observation.

You’re going to see something, you’re going to hear something, or you’re going to smell something. Somebody may tell you something that gives you that gut instinct to think this person may have used a prohibited substance in violation of your company’s policy, but at that point it’s just a hunch. How do you go beyond the hunch? It starts with an observation.

Video scene: Mechanic Drops wrench just missing co-worker who talks to supervisor.

Then you need to investigate. I’m not talking about bringing in law enforcement. I’m saying when that observation occurs, you need to check it out.

Video scene: Ken asks another trained supervisor Mary to observe.

If the observation is about a truly sensitive employee, you don’t have time to do a dramatic investigation. You need to act now.

Video scene: Ken and Mary observe, document, and remove the employee from safety sensitive duty.

You need to remove the person from safety sensitive duties. Never use physical force or restraint. Then you can take your time to confirm your hunch, and your suspicion with some other level of management, preferably another trained supervisor.

Video scene: Ken and Mary interview the employee in a private setting.

This serves several purposes. First of all, it’s always easier to make a decision by committee. So, it’s always easier to have someone else agree with you that this person needs to be drug tested. Secondly, when confronting the employee, the next step, it’s always better to say we have decided to test instead of ‘me.’ It is a we versus me situation. It always goes better when it’s we have decided you need to take a drug test. So, now when you confront that employee, appreciate the fact that your decision to test has already been made. The only decision left is will that person submit to testing or not.

Notes


Video Scene: Ken explains why the employee was called in and asks them to submit to a drug test. The employee refuses.

So you’ve decided to have this individual submit to a drug test. You have to talk to them. You have to confront them. Understand that at the time you confront them, your decision to test has already been made. So, the only question left is will they take the test.

You need to be prepared in the event that they tell you no, they have no interest in taking a drug test. You should have a document ready. That document should indicate that they’ve been advised, under company policy, that facts lead to the conclusion that there is a suspicion of drug use and they need to take a test. Should they refuse, they should be allowed to sign that document. That document should also indicate that you have told them, based on your company’s policy, what the consequences of refusing to take the test would be.

In the DOT setting, refusal to take the test is treated the same as a positive. That individual cannot be allowed to performing safety sensitive tasks until they’ve gone through the substance abuse professional assessment and whatever’s been recommended in the way of counseling. That document should indicate that you have advised this person what the consequences of refusal will be.

Remember now in this confrontation, the employee is going to be agitated. He might get very agitated. You need to stick to the plan. You need to recognize what the plan is and how this is going to work. Stick to the policy. Explain to the employee what the procedure is going to be. You are going to take them to the clinic. They are going to provide the test. You are going to take them back to the facility and someone will pick them up. Stick to the plan. The plan is in your policy.

You should be aware that the DOT prohibits the use of a “Consent to Test” form. An employee does not have to sign anything to be tested except the collection form at the testing site. The document referred to in the video is for the supervisor to use as a checklist to document that they have provided the DOT mandated information when an employee chooses to refuse to take a test.

The supervisor instructions and script along with a documentation checklist is in the “Do it Right! Pocket Guide for Reasonable Suspicion Testing.”

The “Supervisor/Observation/Incident Documentation” form has the checklist information at the bottom of the form. The supervisor instructions and script are only in the “Do It Right! Pocket Guide.”

Neither of these forms requires an employee signature.

Notes


Video scene: Ken explains the consequences to the employee, and the employee agrees to be tested.

And then finally, document everything. Always document the basis for the need for testing. And keep that documentation confidential. Don’t just leave it sitting on a desk somewhere while you go out and deal with other issues in the factory or in the warehouse. Put it away. Anything on top of a desk, everybody’s got to look at it when they go by. So make sure you put it away. Always enforce the rules the same for everybody. Don’t treat one group of workers different than the other. Treat everybody the same.

If the purpose of your test was reasonable suspicion, the employee will not be allowed to return to work until the result is reported by the medical review officer (MRO). If the drug test comes back negative then the paperwork related to that reasonable suspicion drug or alcohol test cannot be used the basis for a future reasonable suspicion drug or alcohol test.

If the drug or alcohol test is negative that does not mean the problem went away. Some further investigation needs to happen because the contemporaneous, articulable facts that were the basis of the reasonable suspicion test did exist.

There should be some further investigation that might lead to a referral to the employee assistance program (EAP), or at a minimum another meeting to discuss performance issues.

What should you do if the employee refuses?

If the employee is notified and they try to drive off, be sure to inform them that their action will be considered a refusal and will be treated as a positive. Inform them if they drive off the worksite that you will notify local law enforcement. Then be sure to notify local law enforcement to protect the public. Your communication will create a record of responsible action and will protect you and your organization.

The supervisor who made the observation must write and sign documentation within 24 hours of the observed behavior, or before the results of the alcohol or drug test, whichever is earlier.

If for any reason the employee decides not to take the test and insists on leaving the work site in their own vehicle, be sure to inform them that their intended actions will constitute a refusal to test and will be treated just like a positive.

Also, inform them that if they drive off the work site that you will notify local law enforcement. Then be sure to do so. This action protects the public and creates a record of responsible action on your part. Make sure you document the situation as quickly as possible once you have had the discussion with the employee, but no later than the end of the work day.

Notes


As the supervisor, you are responsible and accountable for assuring that employees under your supervision are fit to perform their duties safely. The steps outlined below will assist you in taking consistent and appropriate action whenever an employee’s judgment or performance appears to be impaired.

Let’s review the “Steps of a Reasonable Suspicion Determination”:

Observe, Investigate, and Identify Appearance, Behavioral and Performance Indicators of Possible Substance Abuse according to your policy.

The first step, Observation, Investigation, and Identification consist of the supervisor noticing changes in an employee’s work pattern that are violations of work policy and/or may adversely affect safety and job performance.

Changes relating to imminent safety concerns should be based on articulable contemporaneous observations as they relate to policy violation.

Examples of such observations are:

Abnormal appearance

Unsafe conduct while on duty

Impaired walking, stumbling, or staggering

Patterns of deteriorating job performance do not necessarily have to be safety related in nature. Deteriorating job performance is identified by the presence of progressive violation of policy. For example, chronic absenteeism would be identified as policy violation in the following ways:

Unauthorized leave

Excessive sick leave

Monday absences, Friday absences, or Monday and Friday absences

Repeated absences of 2-4 days

Remember that the observation that triggers a reasonable suspicion test must be observed by a trained supervisor and must be contemporaneous—now.

Identification of discrepancies to policy must consist of observable signs about which the supervisor is knowledgeable and has been trained. The supervisor’s responsibility is not diagnosis of medical/behavioral problems, but identification and documentation of impaired performance capability as it relates to safety and job performance.

For example, a person staggering on the job would not be identified by the supervisor as a drug addict or alcoholic. This would constitute diagnosis and conjecture on the part of the supervisor. A more appropriate identification of this observed behavior would be impaired walking – staggering. The supervisor may only identify abnormal behavior, not guess what is wrong.

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