Transcript MACO JPIA Risk Management Service

MACO JPIA
Risk Management Service
Follow up Training for Drug and
Alcohol
Reasonable Suspicion Training
Puiggari & Associates
Michele Puiggari
Fall 2012
Introduction
• Questions asked during the Webinars for Drug
and Alcohol Reasonable Suspicion Testing
training which needed additional research and
MACO JPIA’s position, in order to be answered
fully.
• Clarification of statement made about
terminating employees immediately if they
failed a drug/alcohol test.
Question 1.
• Question 1.
Can I tell potential employers if a
former employee failed a drug/alcohol test?
• Answer: When the appropriate release form is received,
pursuant to the Federal Motor Carrier Safety Act, you must
respond and complete the form
• You must send the information in a way to ensure
confidentiality (mail, fax and e-mail are OK)
• As the previous employer, you must maintain a written
record of the information released, including the date, the
party to whom it was released, and a summary of the
information provided.
• MACO has a copy of the release form on the website
Additional Information-if you are
hiring person with CDL
• All employers that wish to hire a person that
need a CDL, are required to send a consent
form asking about the person’s drug and
alcohol testing history, to the last 2 years of
employers and make a good faith attempt to
receive the response BEFORE putting the
person to work in a position that requires a
CDL. 49 CFR Part 40.25 .
Process for Potential Employer
1)
Have the applicant sign this release form and send it to the person’s former
employers for the past 2 years;
2)
Make a good faith attempt to receive the information BEFORE the
applicant/employee is put to work in the position requiring the CDL;
3)
As the potential employer, you must also ask the applicant/employee whether
he or she has tested positive, or refused to test, on any pre-employment drug or
alcohol test administered by an employer to which the employee applied for, but
did not obtain, safety-sensitive transportation work covered by DOT agency drug
and alcohol testing rules during the past two years. If the employee admits that
he or she had a positive test or a refusal to test, you must not use the employee
to perform safety-sensitive functions for you, until and unless the employee
documents successful completion of the SAP program;
4)
If the applicant/employee failed a drug test in the past 2 years they cannot be
put in the position requiring the CDL unless there is proof they completed the SAP
rehabilitation program.
Question 2
• Question 2: For Employees that go on Seasonal Layoffs (or are on FMLA
or extended medical leave), do we keep them in the Random Pool.
• Answer: For employees that are on Seasonal Layoff (you keep their status
as an employee and intend to rehire them) or for employees that are off
work temporarily (ex. a medical leave) you can EITHER:
1) Keep them in the random pool; This means that you must make a
good faith attempt to contact them and have them go in for testing
immediately if they are chosen for a test. If they aren’t tested document why
and send them for a test before they start work again.
2) Remove them from the pool. BUT if you remove them from the
pool then under the FMCSA regulations you must retest them (like they are a
new employee applicant) BEFORE they start work requiring a CDL. This can
be costly.
• The choice is yours.
Question 3:
• Question 3: What do we do with an employee that fails a drug/alcohol
test?
Answer: DO NOT TERMINATE IMMEDIATELY. However, the employee must
immediately be removed from the position requiring the CDL.
Under Montana law any government employee must be given process before
they are terminated. It is recommended that:
1)
If the person is an applicant and fails the test you do not
hire them. You are not hiring them because they cannot perform the
essential function of the job (an essential requirement would be that they
have a CDL);
2)
You have a policy (in the drug/alcohol testing policy) or
termination policy that states any employee that fails a test will be given the
right to respond but that if they cannot perform the essential function of the
position (driving which requires a CDL) they will be terminated;
3)
If an employee fails a test (refuses to take or numbers indicate
drugs/alcohol in their system), the employee must immediately be
removed from their position. They should then be called in, told the
results, told they cannot perform their job and that you are proposing
to terminate them. They should also be informed they have the right
at their expense to have the split sample tested. The employee should
then be asked if they have anything to say. MACO JPIA should be
informed. Once this process is done the employee should then be
terminated for the inability to do their job.
4)
If you wish to rehire them at a later date, if they will need a
CDL to do the job, the employee can only be rehired if they complete
the rehabilitation (return to duty) process and they have a negative
test;
5)
If there is a Collective Bargaining Agreement, follow the
process in it. However, no Collective Bargaining Agreement can
preempt Federal Law. This means that you cannot put the person
back into any position requiring a CDL if they have not gone through
the rehabilitation process.
Contact person for explanations:
Bruce Holmes 406-449-5304