ITS TIME TO GIVE YOUR TESTING PROGRAM A 'CHECK UP'
BARBARA BUTLER & ASSOCIATES INC.
Most carriers that operate into the United States have had their testing program in place for almost four years now. In some cases, a certain degree of complacency may have slipped in. Carriers should be aware that the U.S. Department of Transportation auditors are still very serious about ensuring Canadian companies continue to comply with their regulations. Therefore, it would be wise to conduct a program review now to avoid costly problems down the road.
Part 382 of the Motor Carrier Safety Regulations makes it very 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 the procedures set out in Part 40. This is why you should not only examine your internal practices, but also confirm that any service providers acting on your behalf (e.g. collectors, laboratories, MROs, TPAs, SAPs) are also in compliance.
A DOT audit can be triggered:
You can be fined, for example, for failing to have a policy, failing to maintain all of the required records, failing to meet the random selection rate, using service providers who do not entirely follow the Part 40 testing procedures, and most importantly, for using a driver who is not qualified. Apparently this last situation is considered the most serious (and costly) rule violation. Examples would be:
In these situations, fines can be as much as $10,000 U.S. per driver per incident. Other infractions may trigger lower fines, but everything is cumulative. Therefore, it is probably timely to review your program and make sure it is still meeting your own safety objectives, as well as the requirements set out by DOT.
Don't Let your Guard Down!
Many employers are wondering if the cost and effort involved in continuing to administer these program is worth it. If we look at some of the current alcohol and drug use patterns, and then turn to the testing program results, you may be in a better position to draw some conclusions.
Despite continued prevention efforts in the government and private health sectors, Canadian surveys confirm alcohol and drug use patterns are still at levels of concern. The Canadian Addiction Survey published in 2004 provides the most recent survey information on alcohol and drug use patterns for Canadian adults *. The following highlights are of interest:
A wide variety of drugs are readily available in all regions of the country, the potency of the drugs continues to increase (particularly marijuana), and drugs and alcohol continue to be used at levels that can have health and safety impacts both on and off the job. If employers want to prevent problems associated with the use of alcohol or other drugs, it is critical that employees know where they can access assistance, either through a company Employee Assistance Program or community resources, before any problem they may have impacts the workplace. Although not a regulated requirement under the U.S. rules, providing avenues for assistance is an essential part of any Canadian workplace program, and those that have not done so should reconsider this step as part of their policy review.
Another set of interesting statistics comes from the testing program of the largest national consortium. DriverCheck reports the overall positive rate for testing in the DOT regulated testing program has dropped from 2.5% in 1997 to 1.42% in 200 (but remains at 5.9% for non-DOT programs. Positive rates for the DOT random testing pool has fallen steadily from 1.96% in 1997 to 0.74% in 2005, while pre-employment has dropped from 2.64% to 1.92% over the same period. As a percentage of all positive results, marijuana remains the drug most often detected at 64.5%, but cocaine positives have increased in recent years (to 19.73%) and the number of refusals, including tampered and adulterated samples has increased to over 11% in 2005.
Many believe that the steady reduction in positive random results indicates these policies and programs are being effective in reducing drug use in the industry. However, the steady state of the pre-employment positives may indicate that a core of drivers continue to use drugs, and simply move to other non-testing companies if they fail the test.
These survey results and
program statistics would seem to indicate the continued importance of
having comprehensive policies, particularly in higher risk industries.
Whatever a company may conclude about the value of its own program,
if drivers continue to operate into the United States, the company must
comply with the U.S. regulations. One way to confirm continued compliance
is to do a quick review of the company program. Here are the sorts of
questions that should be asked:
Ask your Managers:
Ask your Service Provider(s):
Remember, it is the employer who is responsible for ensuring 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 important consideration is that if your testing program in total, or any disciplinary action taken as a result of a positive is challenged, you will want to 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!
Ensure your Provider knows about the Part 40 Changes:
DOT has issued draft amendments to the Part 40 requirements which make a series of improvements in the current system and put all the interpretations issued in the past 10 years into one document. It includes additional training requirements for individuals involved in the testing process, and additional procedures for labs to test for dilute, substituted and adulterated specimens, given the ready availability advice to help drivers try to "beat" the test.
One significant change for employers will be the requirement to sign a contract provision with any independent party that helps with your testing program (e.g. collectors, laboratory, MRO, 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 on advising carrier members of 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, we should not become complacent about alcohol and drug policies in the industry. After nearly four years of experience, it is timely to review your current practices to ensure they are still meeting your objectives and that you continue to be in compliance with the DOT requirements.
* Canadian Addiction Survey found at the Canadian Centre on Substance Abuse web site; highlights report and detailed survey released March 23, 2004. It is found at: http://www.ccsa.ca/index.asp?ID=18&menu=&page=222&full=yes%20
© Barbara Butler & Associates Inc.