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Why Operate a Blended Workplace: DOT vs. Non-DOT?

(May 2019) Operating a comprehensive drug-free workplace program can be challenging in a blended workforce with employees who are mandated by the Department of Transportation (DOT) and those who are not.  Employers frequently ask us why they can’t just have one policy/program that covers both their CDL drivers subject to DOT and employees who aren’t DOT-mandated.  For practical and operational reasons we recommend employers have separate policies that work in concert.

There are some DOT requirements that are considered best-practice because of their defensibility, and therefore, are prudent to apply to all employees – such as testing methodology, definitions of what constitutes a positive drug and/or alcohol test, confirmatory testing for non-negative screens, and general statements about the company’s commitment to safety and productivity.  However, there are also some MAJOR differences between the DOT and non-DOT policies that make operating your program difficult if everything is combined into one document.

DOT Mandates are Limiting

Using DOT’s Federal Motor Carrier Safety Administration (FMCSA) specifics, here are just a few areas of critical limitations:

DOT Program

Non-DOT Program

Accident definition warranting a post-accident test Very narrow and applicable only to driving situations where there was a fatality or the company’s driver is cited and there is medical attention and/or significant damage to the vehicle. Broader definition applicable to both driving and non-driving situations
Tested drugs Only permitted to test for the specific panel of drugs listed in the Federal Registry Tests can look for more drugs and include those commonly abused in the specific community
Random testing 25% for drugs and 10% for alcohol Drugs only, at whatever percentage suits the company’s needs or another authority
Definition of safety-sensitive functions/positions Only applicable to CDLs Customized to the nature and activities of your company
Reasonable suspicion Can only be based on acute signs (i.e., here and now) Can be based on acute and long-term signs and patterns
Testing for new employees Negative result must be received before the driver can start safety-sensitive activities Can be more flexible to test within the new-hire period (e.g., first 30 days of employment)

Applying only the guidelines required under DOT does not provide all the safety precautions necessary in today’s workplaces. Your company’s policy-development team will need to make thoughtful decisions and articulate whether, and the sequence, either or both policies are to be observed. Both of the policy documents can reference the other where there are intersections

Issues where your company may want to go beyond what DOT policies allow, e.g., the criteria for reasonable suspicion, what qualifies as a testable accident and what constitutes safety-sensitive roles (beyond the CDL’s role), need thoughtful consideration and specific operational steps.   For example, the receptionist who drives three times a week to the bank is routinely performing safety-sensitive activities for the company and should conceivably be subject to post-accident testing that falls outside of FMCSA.  And the employee, whether mandated or not, who exhibits a pattern of behavior that leads a trained supervisor to suspect he or she is influence of alcohol or drugs, needs to be subject to reasonable suspicion testing even if the situation lacks acute evidence (i.e., what one sees, smells and hears in the here-and-now).

Additionally, today’s employees are misusing drugs beyond the DOT designated drug test panel.  So should the driver be tested for additional drugs and situations not mandated by DOT?  If, for safety objectives, your organization desires this, once DOT requirements are satisfied a second collection and test should be executed under the non-DoT policy and chain-of-custody form.  Such action would need to be standardized and practiced consistently to prevent subjective determinations or discrimination.

Operationalizing Your Drug-Free Blended Program

Circumstances where DOT requirements differ from a company’s comprehensive drug-free workplace program can be particularly confusing for supervisors implementing the program. When there’s duplication (e.g., random testing), it is important to have policies and procedures standardized and directions clearly outlined.  This way, if a situation arises with a CDL, for example, supervisors will know to refer first to the DOT policy (i.e., complying with federal law first) and then to refer to the company’s non-DOT policy to pick-up where DOT leaves off or is silent.

To effectively blend your DOT and non-DOT programs it’s imperative that you have a clear and operationally sound game plan. Beyond DOT requirements, it will also be important for your policy-development team to work diligently to uncover any additional state laws or other authorities that could affect the decision choices you make for your program and operations.

So the task at hand:

  1. Identify all the issues to be addressed in order to maintain safety and limit liability related to an employee’s harmful use of alcohol and/or other drugs.
  2. Beyond your DOT program documents, craft a second policy to satisfy any other authorities and company preferences around definitions, testing details, consequences, rules, etc.
  3. Review each policy and insert notes, where appropriate, to remind individuals under what conditions they will be subject to DOT policies and when the company’s comprehensive drug-free workplace policy applies.
  4. Create an operational flow and train supervisors so they can follow a clear set of instructions if they respond to alcohol and other drug issues involving DOT-mandated employees.
  5. Annually review both policies/programs and make adjustments, as needed.

Operating a blended drug-free workplace program does not need to be difficult.  However, to work in each unique environment, it takes some company-specific planning and focus for the the policies to work together.

DISCLAIMER: This publication is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the publication are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.