Drug Testing: Pass or Fail

by 2005 May

It’s been nearly three years since all Canadian motor carriers operating in the United States have been required to follow American drug-testing rules. The regulations are complicated and sweeping: every commercial truck driver who operates 26,000-pound GVW or more in the United States, or who hauls hazardous goods, must pass a pre-employment drug test and be subject to testing for drugs and alcohol at random, after an accident, when drug use is suspected, or when he returns to duty after engaging in any prohibited conduct. Even if only one of your drivers operates south of the border just once during a 12-month period, you’re responsible for ensuring that he complies with the rules.

The cost of non-compliance carries a heavy price. Penalties can be as high as $10,000 US per driver per incident. Perhaps more disconcerting-whether your trucks will ever see the Lower 48 or not-is the potential for drivers who do use drugs to gravitate toward fleets that don’t test. Be aware that drug and alcohol use patterns in Canada are still at levels of concern. About 2.4% of drivers test positive during pre-employment drug exams, a number that has been consistent since 1997, according to Canada’s two largest testing firms, DriverCheck and HealthStar (which manages the Canadian Motor Carrier Consortium, a collection of industry groups led by the Ontario Trucking Association).

Meantime, carriers who do test their drivers have experienced random positive rates that have dropped below 1%. The steady rate of pre-employment positives may indicate that a core of drivers continues to use drugs, and simply moves to non-testing companies when the drivers fail the test.

The cost of compliance has been expensive, too, in terms of money spent on testing, man-hours devoted to training, and, in some cases, loss of goodwill among drivers who believe drug testing is an invasion of their privacy. A drug-testing program also requires ongoing energy from management. Although there’s lots of paperwork involved, it’s hardly a clerical job. Your program manager has to be familiar with DOT drug-testing regulations, and make sure that rules and policies are consistently adhered to and properly communicated to all concerned. There’s no room for complacency.

So if you’re a fleet manager, there’s no better time to conduct a quick review of your drug-testing program. It’s an exercise where you get to ask the questions. Here are 16 good ones, plus some follow-ups-questions that will indicate where your program managers and your service providers need to improve in order to maintain a high level of compliance and, one would presume, safety, at your company.


1. Part 382 of the U.S. Motor Carrier Safety Regulations makes it clear that every employer dispatching drivers into the United States must not only comply with the standards and testing requirements in Part 382, but also must ensure that the testing complies with procedures set out in Part 40. Do we have current copies of Parts 382 and 40 on hand? What are our obligations as employers in dealing with drugs and alcohol in the workplace?

2. Are we maintaining appropriate program records for audit purposes? Requirements are listed in 382.401 and indicate some records must be kept for a year, two years, five years, or indefinitely.

3. Is our company policy regarding drugs and alcohol up to date, and has it been provided to all covered employees? Is it time to evaluate and perhaps revise the policy itself?

4. Has each driver covered by the regulations signed a statement confirming receipts of the company policy and information about the regulations and testing program (e.g. driver handbook) as per 382.601? Are the original statements in our files?

5. Has everyone who supervises a covered driver been trained in how to comply with the regulations, and do we have proof of training on file (382.603).

6. How do we ensure that we comply with every circumstance for testing, including random at the specified rate, reasonable cause and post-accident as required, return-to-duty after a violation, and follow-up if directed by a substance-abuse professional (SAP)? Do we have records showing that every driver passed a pre-employment drug test before taking a U.S. trip? Remember, employers must ensure required testing is done regardless of who is ultimately responsible to pay for the test under their policy.

7. Do we have records regarding contact with past employers (back two years) for every new hire, and are we ensuring they comply with all SAP requirements, including follow-up testing?

8. Are we providing the names of local SAPs to all drivers who engage in prohibited conduct-not just to those who test positive-whether we continue to employ the driver or not? Do we keep a record every time this is done?


9. Are breath, saliva, and urine samples being collected correctly? Is the proper chain of custody (seven-part DOT) form being used for drug testing? Is the proper three-part form being used for breath alcohol testing? Are the breathalyzers being used on the “conforming products” list and regularly calibrated? How are the collectors trained? Is there proof of training and certification for the breath alcohol technicians and screening test (saliva) technicians?

If you have concerns about how your collection is being handled, raise them with the collector and your third-party administrator (TPA).

10. Do you have proof that samples are being analyzed at a lab certified by the U.S. Dept. of Health and Human Services? The three labs in Canada are Maxxam Analytics of Mississauga, Ont., Dynacare Kasper Medical Labs of Edmonton, and Gamma Dynacare Medical Labs of London, Ont., although testing can be done by a certified U.S. lab.

11. Is the medical review officer (MRO) experienced and qualified, and does he continue to stay on top of evolving issues?

You should be concerned if you MRO doesn’t know how to deal with, for example, hemp products, medical marijuana use, second-hand smoke excuses, and adulteration tactics. You should also be concerned if your MRO is not up to date on rule amendments and interpretations.

12. Is your MRO receiving all lab results directly, both positives and negatives? The rule is not being met if any result goes to your third-party program administrator first.

13. Does each SAP you use meet the qualifications set out in the regulations, and do they know what they are expected to do with respect to reporting back to the company and making follow-up recommendations?

14. Are you satisfied with the turnaround times for test results, recognizing most should be received in one or two days unless there is a complicated cased requiring dialog with the MRO?

15. Are you confident that the random selection handled by you TPA is meeting the rates set out by DOT? If the TPA fails to ensure that the tests were completed at the rate required (not just selected), all members of the consortia can be fined. If you have doubts, ask your TPA for the 1999 MIS report to verify this standard was met.

Remember, it is the employer who is responsible for ensuring that the testing is done exactly as directed in the Part 40 regulations. If you are audited, and the inspector concludes any part of your testing program was not handled appropriately, you-the employer-are subject to fines, not your service provider.

Another consideration: if your testing program in total (or any disciplinary action taken as a result of a positive test) is challenged, ensure that the collectors, the laboratory, and the MRO are all fully qualified and able to stand behind the program and its results in any hearing situation. Cheaper is not always better.

16. Does your service provider know about recent changes to Part 40 of the regulations? DOT has issued draft amendments to the Part 40 requirement which make a series of improvements in the current system and puts all the interpretations issued in the past 10 years onto one document. It includes additional training requirements for individuals involved in the testing process, and new procedures for labs to test for diluted, substituted, and adulterated specimens, given the readily available advice out there to help drivers “beat” the test.

One major change for employers will be the requirement to sign a contract provision with any independent party that helps with your testing program (collectors, laboratories, MROs, SAPs, and TPAs) committing that all parties will comply with Part 40. There are other changes that will also affect employers, but DOT’s position on these will not be known until all submitted comments are reviewed and final regulation has been issued later this year. Therefore, you should ensure that your TPA is aware of these changes and intends to advise you about any requirements that could affect your company program.

Again, given the continued importance of having effective health and safety programs in place, and the need to ensure drivers are fit to perform their duties at all times, don’t become complacent about alcohol and drug policies in the industry.

Although not a regulated requirement under the U.S. rules, providing avenues for assistance is an essential part of any successful workplace program.

And companies that have not done so should reconsider this step as part of their policy. After at least three years experience, it’s time to review your current practices to ensure they still meet your objectives-and that you continue to be in compliance with DOT requirements.

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