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:
- if your company is randomly selected for a visit;
- if one of your drivers is involved in any kind of incident or safety infraction in the U.S.;
- if there are problems identified with your testing program administrator as a result of a competitor’s audit; or
- if someone informs (on a confidential basis) one of the DOT offices that there are problems with your program. This call can be made by an employee (or former employee), a competitor, or anyone else who wants to trigger an audit of your program!
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:
- sending a driver into the U.S. before receiving confirmation of a negative pre-employment test result;
- using a driver who is not under a random selection program; or
- failing to ensure a driver is under a follow-up program as directed by a SAP, even if the rule violation happened with a previous employer.
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:
- 79% of Canadian adults are current drinkers, and of these, 44% drink weekly and 17% are considered high risk drinkers (25% of males).
- The number of current marijuana users has doubled since 1994 to 14%, with a higher percentage of men (18.2%) than women (10.2%) being current users and the greatest percentage of users in younger age groups. Of these, 20% use weekly and 18% daily.
- One in six Canadians reported using an illicit drug other than cannabis in their lifetime, but past year use was at 1% or lower except for cocaine (1.9%). In fact, cocaine use doubled since the 1994 survey. 3% of Canadian adults reported past year use of any one of cocaine, speed, ecstasy, hallucinogens or heroin, with the highest levels in the younger age groups (18 to 24 years).
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
- Do we have current copies of Parts 382 and 40 on hand, and do we know our obligations as employers? The Provincial Trucking Associations are the best source for these documents.
- 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.
- Is our company policy up to date, and has it been provided to all covered employees? Is it time to evaluate, and perhaps revise the policy itself, given four years experience with it?
- Has each driver covered by the regulations signed a statement confirming receipt 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?
- Has every supervisor of a covered driver received training, and do we have proof of training on file (§382.603)?
- Are we ensuring 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 the Substance Abuse Professional (SAP)? Do we have records that every driver passed a pre-employment 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.
- Do we have records regarding contact with past employers (back 3 years) for every new hire, and are we ensuring they comply with all SAP requirements, including follow-up testing?
- Are we providing the names of local SAPs to all drivers that engage in prohibited conduct - not just those that test positive - whether we continue to employ the driver or not? Do we keep a record every time this is done?
Ask Your Service Provider(s)
- Are breath, saliva and urine samples being collected correctly? is the proper chain-of-custody form (7-part DOT) being used for drug testing? is the proper 3-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 any concerns about how your collection is being handled, raise them with the collector and your Third Party Administrator (TPA).
- Do you have proof that samples are being analyzed at a lab certified by the Department of Health and Human Services (DHHS)? The three labs in Canada that are certified are Maxxam Analytics Inc. (Mississauga), Dynacare Kasper Medical Labs (Edmonton) and Gamma Dynacare Medical Labs (London), although testing can be done by a certified U.S. lab.
- Is the Medical Review Officer (MRO) experienced and qualified, and does he/she continue to stay on top of evolving issues.? You should be concerned if your MRO does not 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. Is your MRO receiving all lab results directly, both positives and negatives? The rule is not being met if any result goes to your TPA first.
- 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?
- Are you satisfied with the turn-around times for test results, recognizing most should be received in 1-2 days unless there is a complicated case requiring dialogue with the MRO?
- Are you confident that the random selection handled by your TPA is meeting the rates set out by DOT? Recognize that 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 your have any 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 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 website; 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