Reply To: Drug/alcohol testing

[Nome Dickerson]

This answer boils down to a bigger root cause of compliance issues in USDOT drug and alcohol compliance: Testing Authority/Applicability.

When an employer sends an employee for a USDOT-FTA drug/alcohol test (regardless of the reason for the test, such as Pre-employment, Post-accident, Random, etc.), the employer is essentially acting as the “arm” of USDOT-FTA. That is, when an employee is sent for a USDOT-FTA test, it is because that test has been authorized and required by USDOT-FTA, as opposed to the employer themselves.

To send an employee for a USDOT-FTA test when that test is not authorized or required by USDOT-FTA regulations, the employer is in some way misrepresenting the Federal regulation as well as applying the Federal regulation when not authorized.

When talking specifically about FTA post-accident testing, an employer is required to send an employee for a USDOT-FTA post-accident test if any of the “Three Thresholds” are met (see 49 CFR Part 655.44).

The FTA post-accident test is only authorized by the federal regulation in certain circumstances (The “three thresholds”; 49 CFR Part 655.44)

If none of the FTA’s “Three Thresholds” are met following an accident, not only is the employer not required to send the employee for the USDOT-FTA post-accident testing, the employer is prohibited from sending them for a USDOT-FTA post-accident test.

If an employer wants to include in their drug & alcohol policy some type of language such as “ACME Transit reserves the right to conduct NON-DOT post-accident testing following an accident which does not require USDOT-FTA post-accident testing”, then they may be able to conduct a NON-DOT post-accident test under their own authority (on NON-DOT forms).

However, the transit system must still have a procedure in place to determine after every accident, whether or not the USDOT-FTA thresholds were met.

Additionally, if an agency decides to implement some type of NON-DOT post-accident testing procedures into their policy, they should absolutely seek legal consultation to ensure no other laws prohibit/limit this action.