So you have a federally regulated employee you think may be displaying the signs and symptoms of drug or alcohol use while on duty, but you’re concerned about the liability and potential consequences of getting it wrong. What to do? Fear not we’re here to help…

Realize you not only have the right to intervene, but you are required to do so by DOT federal regulations

We won’t cite the specific regulations for each DOT regulatory agency here but know that all DOT CFRs contain language such as “An employer shall require a driver to submit to a controlled substances test when the employer has reasonable suspicion to believe that the driver has violated the prohibitions of subpart B of this part concerning controlled substances.” (example – FMCSA) Notice the language does not say “may require” or “might require”..it states plainly “shall require” and as such if you are reasonable suspicious then you MUST act.

Are you authorized to order reasonable suspicion tests and have you been trained to spot the signs and symptoms?

If you supervise employees who perform safety sensitive duties then you absolutely have the power to initiate reasonable suspicion drug tests, however if you haven’t been formally trained on how to spot the signs or symptoms of substance abuse you should seek the help of another supervisor who has. AtHandTraining.com’s online training can have you qualified and compliant in a few short hours.

Is this a crisis or performance situation?

In the event the employee showing signs and symptoms (blurred vision, loss of balance, slurred speech, violent ro erratic behavior, etc.) then it’s absolutely imperative you remove the employee from performing safety sensitive duties immediately. This is a crisis situation.  There should be no hesitation; the safety of the employee, co-workers and general public is at risk.

If your suspicions are based on things such as showing up late for work, underperformance, excessive risk taking, dramatic behavioral changes or swings, and such then you be working towards building documentation that might lead to a reasonable suspicion test at a later time. This is generally handled by conducting recurring performance reviews and setting performance goals. This allows you the opportunity to both document the history of the employee’s behavior and set performance goals that they agreed to meet. If later, they fail to achieve the goals they agreed to, it creates a stronger case for performing a reasonable suspicion drug test – assuming the signs and symptoms lead you in that direction.

When did you observe the signs and symptoms?

DOT regulations state that in order for observations to be valid they must occur ‘just before, during or just after‘ performing a safety sensitive duty.

Are your observations based on specific, articuaulable and contemporaneous information?

These are the criteria the DOT specifies supervisor observations must meet.

Specific: For ex. Specific would be “Glassy and bloodshot eyes” versus non-specicic “Seemed out of it”.

Articulable: This means you can accurately describe the specific signs or symptoms. For example, you couldn’t say that an employee “associates with the drug abusing type crowd” because there are no specific characteristics that can be described that wouldn’t be based on speculation or stereotypes.

contemporaneous: This means your observations occurred just before, during or after their work period. For example, watching an employee get drunk at a weekend softball game isn’t directly relevant for determining a reasonable suspicion test on a Monday.

Do you need a second supervisor observer?

No. For FMCSA, PHMSHA, FTA, USCG and many FAA organizations, a single supervisor can make the call. If you’re covered by the FAA and have 50 or fewer employees a single supervisor can make the call. FAA covered organizations with more than 50 employees need to have a second supervisor concur. One of the two FAA supervisors must be trained in dot reasonable suspicion signs and symptoms. However always seek a second supervior’s opionion when possible.

The intervention: Interview the employee and keep information confidential

How do you intervene? Simply remove the employee from performing their safety sensitive duty, take them into a private office or other private location (preferably with a second supervisor) and ask them for an explanation of the signs and symptoms you’ve observed. Document their responses. All information should be kept confidential. The goal of the intervention is not to get the employee to admit use, the goal is to simply document the employees responses. Employees might have reasonable explanations for some signs and symptoms, for example red or bloodshot eyes might be the result of severe allergies, but if combined with slurred speech and  loss of balance the explanation no longer holds up.

What if the employee refuses?

You simply need to inform the employee that a refusal to submit to a reasonable suspicion drug test has the same consequences as testing positive. They can refuse, so be prepared to cite your company policy or specific DOT regulations.

What if the employee has proof they have a prescription?

Whether or not an employee has a prescription is irrelevant to a reasonable suspicion drug test. Proceed with the process regardless.

What if the employee admits to use? Is a test still needed?

Yes. The regulations state the employee must submit to a test. There is no “out” for admitting use. They employee could easily change their story later and say they never admitted use.

Do not let the employee escort themselves to the collection site and do not perform the collection yourself

Employees suspect of being under the influence should not be allowed to escort themselves to the collection site and the supervisor making the reasonable suspicion test determination cannot be the person to administer the drug or alcohol test.

Document observations within 24 hours

DOT regulations specify that supervisors need to document their observations within 24 hours. In the event the employee tests positive and challenges you legally or otherwise, proper documentation of your observations will help your cause. Don’t have a checklist? Get one here.

Make sure all documentation is stored in the employee file

The employee might test negative, it’s a real possibility that the employee may actually be under the influence of a substance that 1. Isn’t part of the drug testing panel and therefore wouldn’t be detected (K2, Spice and other newer substances are common examples and 2. The employee hasn’t previously ingested the substance and therefore the body might not have the metabolites present to that would show up in a lab test. For example, if smoked pot for the first time right now and you urine tested them within a few hours, they would be unlikely to test positive whereas if the test occurred in the next day or two they would. Alcohol tests are different because they do not test for past use, rather they can tell whether or not a person is under the influence at that very moment. Documentation of employee behavior can help establish an actionable pattern of negative employee performance even if the employee tests negative.

 Remeber enabling substance abusing employees to get away with their behavior puts everyone’s safety at risk, including the employee who may need help with an addiction and transfers the consequences of their behavior to others