What to do if applicant DA information comes in during the hiring process

A customer recently sent me this scenario:

“Need some guidance…While an applicant had gone to do his drug test, I was processing his paperwork.His MVR came up with a CDL disqualification on 11-9-11. I called the local driver’s license office and the officer told me it was for failing a drug test and his CDL will be disqualified effective 12/11/11. When the applicant came back I asked him about it and he kept saying he had no idea what I was talking about. I told him that I could not use him with a CDL disqualification showing up and that I would not be hiring him.

Well, my TPA called this morning saying that his drug screen came back with an “altered speciman” and the MRO wants him to come back for a direct observation test. I am not hiring this person at all now, no matter what. I created a file with my notes regarding his application process and what happened. What do I need to do now?

Do I have to send him back and pay for the test even though I’m not hiring him? Does the DOT require that I send him SAP info?”

Bottom line up front: No, you are not required to send him for the follow-up test at your expense.

You should be sure to touch base with your TPA on this.

This is exactly the reason it is illegal to dispatch a driver in a CMV (even one that is over 10,000 lb NOT 26,000, so they would not have to have a pre-employment drug test) if they have ever failed a drug test or refused to test. People who use drugs don’t stop just because they got caught once. You can see there is clear evidence of that with this driver.

This is also the reason the Federal DOT is creating a database of CMV drivers who have failed drug tests.

The first step in this process was to require each state to make it part of their DL and CDL  process – this has served it’s purpose in your case – it kept you from having a drug user driving your truck.

And, your MRO should be reporting this new tampering incident to the same agency. Each state has a different process for this – it might be the lab’s job, or your job, or the MRO. You should check with your TPA to be sure this is done.

That driver applicant that you sent on down the road is just going to apply for another CDL job.

Maybe now that the state is tracking positive drug tests, he will get the idea and go into another line of work.

This is my recommendation:
Discuss this with your TPA – if it was a FAILED drug test, you WOULD BE required to send them a SAP sheet.

I think your TPA might tell you to send written notification that his pre-employment drug test was failed or that a re-test under direct observation would be required. Along with this notification would be a SAP sheet. There are several reasons for this, but more importantly, be sure who-ever is supposed to report this to the state, does so. 

About DOT Compliance Help Inc
Phone: 847-836-6063 web: www.dotcompliancehelp.com e-mail info@dotcompliancehelp.com DOT Compliance Help, Inc. is a full-service consulting firm specializing in the interpretation and execution of the regulations and guidelines set forth by the US Department of Transportation Federal Motor Carrier Safety Administration. •Mission Statement• To assist our clients in establishing proper safety management controls in order to minimize accidents, injuries, and fatalities. The ultimate goals are safer roadways for the public and increased profits for our clients. Our core consulting competencies include FMCSA Assessments (mock audits), DOT compliance training (on-site and via webinar) and custom safety plans and policies. We also hold DOT compliance workshops and conferences all across the country. Utilizing a proprietary curriculum developed by our President, Mike England, our classes cover everything you need to know about the FMCSRs, how to survive your next DOT Compliance Review, and how Comprehensive safety Analysis (CSA 2010) will affect you. www.dotcompliancehelp.com

2 Responses to What to do if applicant DA information comes in during the hiring process

  1. Tom Pool says:

    Hello Mike,
    Are you sure this was a ‘federal’ test? SAMHSA Laboratories don’t report federal (DOT) drug tests as “altered”, nor are MROs allowed to report federal tests as “altered”. Take a look at copy 2 of any blank federal CCF. You’ll see what the MRO reports: Negative; Positive; Test Cancelled”; or Refusal to Test Because (Adulterated or Substituted).

    Part 40 clearly spells out what the employer must do, or if he has options, for each of these situations.

    Instead of “altered”, if the lab and the MRO meant “adulterated”, then this would be reported to the employer’s DER by the MRO as a “Refusal to Test – Adulterated”. Part 40.23 then provides what action the employer must take after receiving the verified “adulterated” test result, i.e. immediately remove the employee from safety-sensitive duties; refer to a SAP and not let him return to safety-sensitive duties until succesffuly completing the return-to-duty process of Subpart “O”. Also, if it was an adulterated test, I don’t believe the MRO has the option of letting him come back for an “observed” 2nd collection. That (2nd collection) process is for tests reported as “invalid”.

    I hop this helps.

    Tom Pool

  2. After reading Tom Pool’s comments here, I went back and re-read my original post, and noticed I have said a couple times to “touch base with your TPA” or “check with your TPA”.

    I always urge people to make sure they have a good DQ system (with help from a qualified ME), a good D & A testing system (with help from a good TPA) a good HOS management system (you need to do this in-house) and a good maintenance system (you need a 3rd-party maintenance provider to do an annual DOT inspection two times per year) and an accident countermeasures program.

    Don’t memorize the book about “What employers need to do (regarding D & A testing)”.

    Instead, memorize the phone number of your TPA.

    Your job is to select, hire, train and supervise good drivers who do not use drugs.

    Don’t try to make yourself an expert on what to do with drug users because they will cause you trouble at every turn.

    This is particularly true if you fire someone or don’t hire someone as a result of a failed drug test.

    They have all the time in the world now, since they have no job, and if they can get a lawyer to go after you and show you didn’t dot your “I”s or cross your “T”s you may get punished for some miss-step.

    A good TPA – and a good relationship with a good TPA – can save you this heartache.

    So focus on the basics and be sure you have a good TPA.

    Mike England
    DOT Compliance Help, Inc.
    Ph 847 836 6063

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