Regardless of the industry that you work in, it is likely that you have taken a drug test — but why? Who is enforcing the drug testing program within your organization? What are the responsibilities of that employee and why do they require you to take a drug test? What are the consequences of failing or refusing to take a drug test?
There are a lot of questions about drug and alcohol testing, and getting the right answers can sometimes be difficult. But as an employee or an employer working in an industry that mandates drug and alcohol testing, there are clear guidelines and drug and alcohol testing requirements. Having someone manage the program who doesn’t understand these requirements can lead to serious consequences due to noncompliance, including significant fines all the way up to shutting down operations.
So when it comes to compliance with drug and alcohol testing pro-grams, it is imperative that employers have a Designated Employer Representative (DER).
The DER is the designated representative who has the knowledge and authority to make decisions based on drug test results and also has the authority to ensure that violators (anyone who tests positive or refuses to test) is immediately removed from duty. Anyone in an organization can be a DER as long as that person understands his or her roles and responsibilities.
Many times, employers designate the HR Department as the DER. This might make sense, as passing a drug test is often a pre-employment contingency, and HR manages the onboarding process. Furthermore, HR typically has a strong understanding of privacy and confidentiality — drug and alcohol results must be treated in such a manner as well.
Other times, HR may not be a reasonable or feasible option. This is understandable as every organization is different, but it should also be understood that the DER does not need to be a member of HR. Some organizations may designate one employee solely as a DER, and larger organizations often have an entire department dedicated to managing its drug and alcohol testing program. The choice is yours, but make sure that anyone working as a DER or supporting a DER understands what is required of the role.
DERs have a responsibility to maintain privacy and confidentiality of drug and alcohol test results as well as records related to the drug-testing process. DERs manage the random testing process and must ensure that random selections are kept confidential so that random tests are unannounced and random.
Recordkeeping is another important part of being a DER, but it’s not just knowing how to keep records that matters but also understanding how long to keep records. It’s not just a cut-and-dried “all records must be kept for X amount of time.” Different types of records must be kept for different time periods, and it is the responsibility of the DER to know these timeframes.
Recordkeeping, confidentiality and assurance that testing is being completed with appropriate action against violators are all pieces to the puzzle leading up to one key item: compliance. The overall responsibility of the DER is to ensure the program is compliant with any federal, state or contractual requirements to which they are subject.
Examples of compliance requirements include DOT testing programs for employers that work under FMCSA, PHMSA, FTA, FRA, FAA or USCG; employers with nonfederal (company mandated) programs operating in states that have statutes regarding workplace drug and alcohol testing; and employers performing work as a contractor for operators that have mandated drug and alcohol testing programs. Employers may be subject to federal, state or contractual compliance audits, and the auditor reviewing the companies’ drug and alcohol program will look to the DER for answers.
Taking on the DER role may seem like a daunting task, and with the responsibility of compliance it should be. But it should be known that there are plenty of resources for DERs. Many companies use Third Party Administrators (TPA) to assist with managing drug and alcohol testing programs. Often TPAs can provide assistance with policy implementation and review and can assist DERs with the management of their program. The key word is assist — it should be made clear that a TPA cannot manage a drug and alcohol program for companies, but that person can assist in a number of ways.
DER training is also offered by a number of service providers, and although not a required course, it is highly recommended that DERs use some sort of training to help fully understand their roles and responsibilities. The return on investment in a DER can be a huge cost savings for an employer in the long run when you consider the violations that a company could face due to noncompliance.