Auditing your Service Agents

Tag: DOT

Tag: DOT

Why You Should Audit Your Service Agents

Posted on by justin

Employers of safety-sensitive transportation employees play a vital role in ensuring the safety of their employees and the traveling public. Subsequently, these employers must comply with 49 CFR Part 40 and applicable DOT Agency regulations. The regulations require the employer to use trained professionals and organizations (ie. service agents) to accomplish meeting these requirements.

As the Designated Employer Representative (DER) for your company, you are one of several or possibly the sole individual responsible for overseeing your drug and alcohol testing program. Thus, it is imperative to utilize qualified, knowledgeable and compliant service agents.

Service Agents

According to the DOT drug and alcohol testing regulations, a service agent is defined as:

Any person or entity, other than an employee of the employer, who provides services to employers and/or employees in connection with DOT drug and alcohol testing requirements. This includes, but is not limited to, collectors, BATs and STTs, laboratories, MROs, substance abuse professionals, and C/TPAs. To act as service agents, persons and organizations must meet DOT qualifications, if applicable. Service agents are not employers for purposes of this part. (49 CFR Par 40.3)

So, what are they specifically? 

  • Collectors – The individuals who collect the drug testing samples on your employee(s). These collections may be conducted at a medical facility, specialized business, or at your company locations by a person who performs collections on-site.
  • BATs and STTs – Breath Alcohol Technicians instruct and assist your employees in the alcohol testing process and operate an evidential breath testing (EBT) device. A Screening Test Technician also instructs and assist employees in the alcohol testing process but operate an alcohol screening device (ASD).
  • Laboratories – Laboratories test the samples provided by your employees that are obtained by collectors. These laboratories must be certified by the Department of Health and Human Services in order to process DOT samples. Testing is conducted using highly specialized equipment and standards that meet rigorous toxicological standards.
  • Medical Review Officers (MRO) – Licensed physicians who receive and review test results that are transmitted from the laboratory for an employer’s drug testing program. Considered the “gatekeeper” for the testing program, they are also responsible for evaluating medical explanations for certain drug test results.
  • Substance Abuse Professionals (SAP) – Trained professionals who evaluate employees that have violated a DOT drug and alcohol regulation (regarding a positive or refusal to test) and make recommendations concerning education, treatment, follow-up testing, and aftercare.
  • Consortium/Third Part Administrators (C/TPA) – Sometimes chosen by employers to assist them with their testing program. C/TPAs typically perform certain administrative tasks concerning an employer’s program. These functions may include consolidating the services of other service agents, like collectors, BATs, and laboratories; provide random testing pools, random selections, and other functions.

Since each of these agents play a major role in the quality and compliance of your drug and alcohol testing program, having an effective business relationship with them is imperative. Because of this, it is important that you periodically review (ie. audit) their services to ensure they are doing what is expected.  

Site Visits

Whenever possible, an actual on-site visit is a great evaluation tool. For instance, stop by a collection facility that you use often and ask to speak with the supervisor of the drug collectors and BAT/SSTs. Request documentation that the collectors and BAT/STTs have completed the required training? View calibration records pertaining to their breath alcohol machine and ask if they are following the manufacturer’s recommendations? Do they follow proper collection procedures by turning off the water, use a bluing agent, require the donor to remove unnecessary outer clothing and wash their hands, to name a few? Is the facility safe, clean, and well managed? How are they going to correct any issues that you find? It is important to remember that problems found at this point can later cause issues for the lab and MRO and possibly jeopardize a test.

Schedule a visit with your MRO and SAP(s) so they know a little about your company and what you do. These individuals can offer a lot of assistance and guidance for both you and your employees. 

Have you ever thought about visiting the offices of your C/TPA? You should. A premium C/TPA will welcome an on-site visit and be able to provide you a behind-the-scenes look at their operations. Ask to see the random selection process for your employees or how your test data is transmitted from the MRO to the C/TPA and then to you.

On-site visits provide a glimpse of how your service agents really operate. Not only are you ensuring your compliance but you’ll gain a lot of understanding in the process.

Desk Audits

When a site visit is not practical, a desk audit can be also be effective. Periodically call or email your service agents and request various documentation or discuss processes. What procedures does the service agent follow and how are problems handled? Is the laboratory that you use on the current List of Certified Labs? Does your MRO and SAP(s) have documentation showing they have met their required regulatory training? Is your MRO properly documenting the testing process and do they have records? If you are using a C/TPA, are they providing the services they promised and following the regulatory requirements? Can you obtain records quickly and is your information secure? If they bundle the services of other service agents, are they auditing them as well?

While not an exhaustive list, the point is to design an audit process that works for you and your company. Frequently ask questions regarding the actions conducted by your service agents – and document the process and your findings. If you find issues, request corrections and documentation. Most issues, if found, can be easily remedied and most service agents are happy to address those with you. However, if problems still persist then it may be time to find a different service agent. 

Service Agents Work for You!

In order for your audits to be effective, you as the Designated Employer Representative (DER) should be both knowledgeable of what these service agents are required to do and (to some degree) how they do it. That means, you must be knowledgeable with all the regulations your company is subject to. A working knowledge of each service agents role helps you identify when problems exist. Too many employers fail to know what their providers actually do for them. Many don’t even know who to contact!

You, as the employer, are ultimately responsible for following the regulations under your drug and alcohol program. As such, it is a good practice to conduct these reviews on an annual basis. During a regulatory audit, you may be asked to demonstrate that you have verified the processes and compliance of your service agents. Having documentation of an on-site visit or desk audit will show your due diligence.

Utilizing good service agents is critical in managing an effective and compliant drug and alcohol testing program! Conducting regular reviews on each only strengthens your program and provides significant peace of mind.

PTC conducts regular reviews of our service agents and dramatically reduces this burden for our clients.
For more information on how we can help you manage your organization’s drug and alcohol testing program,
please email Jeff Martens or call 800.294.8758 ext. 405.

Department of Transportation Issues Notice on Use of CBD Products by Safety-Sensitive Employees

Posted on by ptcok

The Department of Transportation’s (DOT) recent notice on the use of cannabidiol (CBD) products serves as a warning to employees in DOT-defined safety-sensitive positions. While the DOT has always had clear regulations strictly prohibiting the use of marijuana for truck drivers, school bus drivers, train engineers, pilots, transit vehicle operators, and the like, the increasingly widespread use of CBD products created a gray area with regard to testing. This notice makes clear that CBD use does not excuse a positive drug screen and therefore safety-sensitive employees may want to be wary of using CBD products.

DOT’s Notice on CBD Products

On February 18, 2020, the DOT issued its “DOT Office of Drug and Alcohol Policy and Compliance Notice,” on the use of CBD products by safety-sensitive employees who are subject to the DOT’s drug-testing regulations. These products include the increasingly popular CBD alternatives available on the market today. In 2018, President Donald Trump signed the Agriculture Improvement Act of 2018 (Farm Bill) (Pub. L. No. 115-334), which legalized industrial hemp at the federal level. The DOT’s notice observes that “hemp” has been removed from the definition of marijuana under the Controlled Substances Act. Therefore, hemp-derived products containing up to 0.3 percent of tetrahydrocannabinol (THC), the psychoactive component of the cannabis plant, are not controlled substances.

With that as background, the DOT notice emphasizes the following three points for both employers and safety-sensitive employees with regard to the use of CBD products:

  1. The Department of Transportation requires testing for marijuana and not CBD.
  2. The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.” The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.” Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label.
  3. The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

Though not law, this notice may give employers needed and appreciated guidance on the use of CBD products and how the DOT will enforce their use by employees in safety-sensitive positions. The DOT will not test for CBD, but the notice warns safety-sensitive employees against the use of highly-unregulated products containing the substance.

Key Takeaways for Employers

The increasing popularity of CBD products has sparked inquiries in almost all industries, but especially by those DOT-regulated employers that employ safety-sensitive employees. This notice may give those employers some clarity on safety-sensitive employee use of CBD products.

Importantly, CBD products are not illegal, and neither is their use. CBD products are those products that contain less than 0.3 percent of THC, and therefore do not fall within the legal definition of marijuana under the Controlled Substances Act. Products with less than 0.3 percent of THC should not trigger a positive drug screen, and the DOT does not test for CBD oil.

However, CBD use is not an excuse for a positive drug screen. As the notice explains, CBD products are highly unregulated and may contain more than 0.3 percent of THC, even if their labels indicate the contrary. This means that the use of CBD products could trigger a positive drug test for THC, and any such test result will be treated as would any other result that is positive for THC. Employers may want to make their employees aware of the notice, as employees may not seek out the notice of their own accord.

The legalization and use of recreational and medical marijuana, and cannabis products, such as CBD, continue to present unique issues for employers. Ogletree Deakins will continue to monitor state legislation and will post updates on the firm’s Drug Testing blog as additional guidance becomes available.

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.
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