Important HOS Update

Checking the right box is more important than ever
In some cases, when a commercial motor vehicle driver returns to work after an extended absence, a drug test may be required. Naturally, many companies think this situation calls for a “return to duty” test because the driver is doing just that — returning to duty. But that’s not how the DOT thinks of “returning to duty,” and, under new rules that take effect in August, sending your drivers for the wrong type of test could mean the difference between a minor inconvenience and an embarrassing ordeal.New proceduresEffective August 25, 2008, the Department of Transportation’s (DOT’s) drug testing rules will require that all return-to-duty drug tests must be performed under direct observation. This used to mean that an observer simply had to watch the driver urinating into a collection container. But under those same new rules taking effect in August, drivers will have to raise their shirts, lower their pants, and turn around, all to show the collector that they do not have a prosthetic device (containing an adulterant or someone else’s urine) that could be used to cheat on the test.Obviously, you wouldn’t want to subject a driver to such an invasion of privacy if it’s not required. So when is a return-to-duty test needed? Under section 40.305, a return-to-duty test is only required when an employee wants to return to driving after having violated the drug testing rules and completing a treatment program. In other words, the DOT defines “returning to duty” as coming back to work (to a “safety-sensitive function”) after failing an alcohol or drug test or otherwise violating the rules on alcohol and drug use. Employers are not allowed to let such drivers back behind the wheel until they have completed an education and/or treatment program and have passed their return-to-duty test. Because these drivers have already violated the rules once, it makes sense that the DOT wants them to be observed closely while providing a urine sample for their return-to-duty test.AbsenceSo if not a return-to-duty test, what type of test is needed after an extended absence? If, during the absence, the driver was still employed by you and was never removed from your random testing pool, the answer is “none.” He or she would simply re-join the testing process and report for a random test the next time his or her name is drawn. This is true even if you had to select alternates for the driver for random testing during the absence.If, however, the driver was taken out of your random testing pool for more than 30 days, you would have to send the driver for a pre-employment test, even if the driver never left your employ. This bears repeating: a driver who is “returning to duty” after an extended absence (and who did not violate the testing rules) would need a “pre-employment” test even if he or she remained your employee during the absence. Of course, if the employee was laid off during an absence of more than 30 days and was removed from your random testing pool, a pre-employment test would be needed when he or she returns.Why 30 days? The pre-employment testing rules contain an exception for drivers who participated in a DOT testing program within the previous 30 days. See section 382.301(b)-(c) for details.