By Sharon Bottcher, Director of Policy Services at Current Consulting Group (CCG)
Updated by Adam Hall, Senior Consultant at CCG, June 2022
This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.
In circumstances when an employer offers a second chance to an individual who has tested positive for drugs and/or alcohol, the employer can require that the individual submits to and pass a one-time return-to-duty drug and/or alcohol test prior to allowing the employee to report back to work. This will ensure that the employee is no longer under the influence of a particular substance when they are allowed to return to duty. Once the employee returns to duty, follow-up testing will likely take place to monitor the success of the employee’s sobriety. Follow-up testing is a series of tests for a specific timeframe and frequency, and each follow-up testing program is usually customized and determined by a Substance Abuse Professional (SAP), or as part of an Employee Assistance Program (EAP). Often, the testing can continue up to 24 months from the return-to-work date.
Similarly, under the U.S. Department of Transportation (DOT), an employee is no longer qualified to work in DOT safety-sensitive functions until the employee has been referred to a Substance Abuse Professional (SAP). The employee must successfully complete the SAP’s recommended treatment and education requirements, submit to and pass a return-to-duty test, and successfully complete a follow-up testing plan. The follow-up testing plan is determined by the SAP and can continue for up to 60 months. At a minimum, such testing must consist of six follow-up tests in the first twelve months after the return-to-duty test and following the return to safety-sensitive functions. For details on the DOT return-to-duty process, refer to 49 CFR Part 40, Subpart O.
In addition, both DOT and non-DOT employers may incorporate voluntary admissions into their testing program. This is a benefit to encourage employees who need assistance in dealing with drug or alcohol dependency problems to seek treatment. Employees who admit to a drug or alcohol problem will be referred to a drug and alcohol abuse evaluation expert (i.e., employee assistance professional, SAP, or qualified drug and alcohol counselor) for evaluation and recommendations of an appropriate education or treatment program. Such employees will not be permitted to return to work until they have been evaluated by a drug and alcohol abuse evaluation expert and have successfully completed the expert’s recommendations for an educational or treatment program. Before the employee returns to work, the employee must also undergo a return-to-duty test.
Who Must Submit to Return-to-Duty and Follow-up Testing?
Under DOT regulations, a return-to-duty and follow-up test must occur whenever a covered employee tests positive, refuses to test, or violates a provision of DOT regulations, before the individual can perform DOT safety-sensitive functions whether for their current employer or a future employer.
For non-DOT testing purposes, if an employer should decide to offer an individual who violated the policy a second chance, all employees who have violated the policy must submit to testing prior to the employee resuming his/her job duties for the current employer as outlined in the company’s drug and alcohol testing policy. As always, it is our recommendation to always consult all applicable state and federal laws.
Return-to-Duty and Follow-up Testing Restrictions
The majority of states do not mandate conditions for return-to-duty or follow-up testing. In these states, employers may decide when and how to implement return-to-duty and follow-up testing. However, as with all testing circumstances, before incorporating any testing program, it is recommended to consult all applicable state and federal laws.
There are a limited number of restrictions that surround state laws pertaining to drug and alcohol return-to-duty and follow-up testing. Eight states require employers to include return-to-duty and/or follow-up testing into their testing programs. These states, which include Alabama, Arkansas, Florida, Georgia, Indiana, Kentucky, Ohio, and Tennessee have a voluntary law that offers benefits to employers if they conduct testing according to the state’s testing laws.
Other states require certain guidelines or conditions for return-to-duty or follow-up testing that need to be considered when developing a testing program. For instance, follow-up testing is permitted in Iowa as a follow-up to rehabilitation. In Alaska, return-to-duty testing requirements are not specifically mentioned in the state statute, but testing is permitted for any job-related reason. Another example is in Arizona, where follow-up testing is permitted to maintain safety for employees, customers, clients, or the public.
Return-to-duty and follow-up testing are invaluable testing mechanisms to protect the employer by requiring testing of individuals who previously tested positive for drugs and/or alcohol. Employers may be at greater risk since they have actual knowledge that the individual may have a potential problem with drugs and/or alcohol and previously tested positive. A return-to-duty test can eliminate the guess work on whether the employee is still under the influence of drugs or alcohol prior to allowing the individual to return to duty. Follow-up testing is like random testing in many ways and shares some of the same benefits and more. The main benefit is the deterrent factor that helps individuals stay clean from drugs and alcohol.
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