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 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

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