SAPAA Asks ODAPC for Guidance Concerning Random Selection Services Provided By Service Agents
SAPAA sent a letter last July to DOT requesting that the Office of Drug and Alcohol Policy and Compliance (ODAPC) provide a statement of official guidance concerning random selection services provided by service agents.
SAPAA is inquiring on whether 49 CFR Part 40 requires service agents who conduct random testing selections to obtain verification of pre-employment testing of each employee the employer has placed in the pool of eligible employees from which the random selections are to be made.
To SAPAA’s knowledge, neither the ODAPC Best Practice Guidance nor 49 CFR Part 40 require such verification. To the best of its information and belief, Industry Service Agents have held covered employer clients responsible under 49 CFR Part 40.11 for conducting pre-employment testing as required under DOT Regulations.
The letter to ODAPC noted that a service agent providing contractor compliance auditing for its clients has interpreted 49 CFR Part 40 in support of its position that pre-employment testing must be verified by service agents providing random testing selection services. (read copy of letter)
The requirement comes from DOT directly and also DOT Modal regulations. For example In the Employer Guidelines booklet, page 16, it states, “You are required to (1) Conduct a pre-employment drug test: and (2) Receive from the MRO a negative test result on the pre-employment drug test for a person prior to hiring or prior to using that person in a safety sensitive position”. Modal rules such as 382.301(a) and 199.105(a) state that pre-employment testing is required and that no operator or employer shall allow an employee to perform a covered task until such testing is completed. If the practice is to only require a list of employees before placing them in a DOT random pool then this would be in violation of both modal rules and DOT regulations. While the understanding might be that it is the employer’s responsibility to ensure this requirement is met, DOT has stated in 49 CFR Part 40.341 that service agents must comply with DOT drug and alcohol testing requirements. I believe that there are no additional guides, information and/or regulatory authority that discuss alternative methods/regulations for service agents to comply with or use for entering employees into a DOT random pool. Furthermore 49 CFR Part 40.355(m) states, that as a service agent you “must not impose conditions or requirements on employers that DOT regulations do not authorize.” I do not believe that DOT has authorized service agents to enter employees from a list as there are no regulation citations or opinions that I can find stating this practice is acceptable.”
Presently, SAPAA does not believe that such interpretation is consistent with 49 CFR Part 40’s regulatory language.
Both Joe and I recently joined SAPAA’s Government Relations Committee and believe that the reason why the letter has not been answered by DOT is because the pending drug and alcohol clearinghouse program implementation schedule, which should virtually eliminate this problem.
