Substance Abuse PolicySubstance Abuse Policy::The Role of theThe Role of the

Designated Employer Designated Employer RepresentativeRepresentative

(DER)(DER)

John A. Corpus, CLCS

Consultant

May 21, 2008

Fox Valley Safety Council Breakfast Presentation

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ObjectivesObjectives

To discuss several “mandated” substance abuse programs in Wisconsin

To make you aware of the basic components of a Substance Abuse Program

To provide you with tools to assist you in the role of a Designated Employer Representative (DER)

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Mandated ProgramsMandated Programs

State (non-DOT)– Medical: confidentiality and right to be

informed– 2005 Wisconsin Act 181– Utility/Manufacturing Companies

Federal– Drug Free Workplace Act of 1988– Department of Transportation (DOT)

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2005 Wisconsin Act 1812005 Wisconsin Act 181

Current law– Laborers, workers, mechanics, and truck

drivers– State and local public works projects– Prevailing wage– All projects except state highway

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2005 Wisconsin Act 1812005 Wisconsin Act 181

Effective May 1, 2007– Employer must have in place, a written

program for prevention of substance abuse among employees

– “In place” means before employer begins work on covered public works project

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2005 Wisconsin Act 1812005 Wisconsin Act 181

Prohibitions– The employee may not

• Use, possess, attempt to possess, distribute, deliver, or be under the influence of a drug

• Be under the influence of alcohol• While performing work on a public works

project

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2005 Wisconsin Act 1812005 Wisconsin Act 181

Act 181 specifics– Workers submit to drug and alcohol testing

• Random• Reasonable suspicion• Post-accident• Pre-access

– Unless worker is participating in random program 90 days preceding day worker commences work

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2005 Wisconsin Act 1812005 Wisconsin Act 181

Act 181 specifics– Procedure for notifying workers who

• Violate prohibitions• Test positive• Refuse to submit to testing

– That he/she may not perform work• Until testing negative• Until approved to commence or return to work

under employer’s substance abuse program

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2005 Wisconsin Act 1812005 Wisconsin Act 181

Act 181 specifics– Employer is responsible for the cost of

• Developing, implementing, and enforcing substance abuse prevention program

– Testing and chain-of-custody procedures must follow guidelines established by

• Substance Abuse and Mental Health Services Administration (SAMHSA)

• Federal Department of Health and Human Services (DHHS)

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Utility/Manufacturing CompaniesUtility/Manufacturing Companies

Contractor/subcontractor responsibilities (Example: WPS/Integrys Energy Group)– Background checks and drug testing– All associated costs– Contractor will determine and certify

employee’s eligibility

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Utility/Manufacturing CompaniesUtility/Manufacturing Companies

Contractor/subcontractor responsibilities– At minimum, 5-panel drug test– Drug test parameters follow Department of

Transportation (DOT) guidelines– Positive employees become ineligible to

perform any future work– Repeat drug test for >6 months absence

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Utility/Manufacturing CompaniesUtility/Manufacturing Companies

Contractor/subcontractor responsibilities– Employees submit to drug and alcohol

testing• Pre-access• Reasonable suspicion• Post-incident

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Department of Transportation (DOT)Department of Transportation (DOT)

Applies to workers in six transportation modalities– Federal Motor Carrier Safety Administration– Federal Aviation– Federal Railroad– Federal Transit– Pipeline and Hazardous Materials– United States Coast Guard

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DOTDOT

Must follow DHHS guidelines for specimen collection and testing

Requires a Federal Custody and Control Form (Chain of Custody)

Requires result review by a Medical Review Officer (MRO)

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Substance Abuse Program Substance Abuse Program ComponentsComponents

Policy purpose and development Service agents Random program Reasonable suspicion Training and refresher

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Policy Purpose and DevelopmentPolicy Purpose and Development

Statement of purpose Designated Employer Representative

(DER) Covered employees

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Policy Purpose and DevelopmentPolicy Purpose and Development

Types of testing– Urine– Hair– Saliva– Sweat

Substances– Drugs (5 panel, 7 panel, 10 panel)– Alcohol

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Policy Purpose and DevelopmentPolicy Purpose and Development

Test events– Pre-Employment– Reasonable Suspicion– Random– Post-Incident (non-DOT specific)– Post-Accident (DOT specific)– Return-to-Duty– Follow-Up

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Policy Purpose and DevelopmentPolicy Purpose and Development

Employer responsibilities Employee responsibilities (policy

prohibitions) Results Consequences Educational materials Acknowledgement of receipt

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Service AgentsService Agents

Consortium-Third Party Administrator (C-TPA) DHHS certified laboratories Collection site(s)

– Normal hours versus after-hours– Remote– On-site at employer

Medical Review Officer (MRO) Substance Abuse Professional (SAP)

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Random ProgramRandom Program

Random testing offers greatest deterrence– Random interval (how often)– Random rate (how many)– Notification– Selection process

End year verification of rates for DOT from C-TPA and/or company program

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Reasonable Suspicion (DOT)Reasonable Suspicion (DOT)

Supervisors must receive training on the physical, behavioral, speech, and performance indicators of probable substance abuse

They must also understand the effects of substance abuse on health, work, and personal life

Most important: learn how to confront an employee

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Training and Refresher (DOT)Training and Refresher (DOT)

DOT mandates an hour of training on controlled substances and an hour of training on alcohol for supervisors

DOT requires employer to provide 11 points of information to drivers

DOT does not require a refresher, but an employer should provide such training on a yearly basis

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Training and RefresherTraining and Refresher

Whether DOT or non-DOT– Reasonable Suspicion Training Yearly– Employee refresher in quarterly safety

meetings

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Designated Employer RepresentativeDesignated Employer Representative

An individual identified by the employer as able to receive communications and test results from service agents and who is authorized to take immediate actions to remove employees from safety-sensitive duties and to make required decisions in the testing and evaluation processes. The individual must be an employee of the company. Service agents cannot serve as DERs.

As defined by the DOT.

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Designated Employer RepresentativeDesignated Employer Representative

Are you the DER at your company? What credentials qualify you as a DER? What tools do you have at your disposal

to assist you in your duties? Is serving as the DER your primary

responsibility or something that fell into your lap?

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Designated Employer RepresentativeDesignated Employer Representative

Surprisingly, you only need one thing…

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Designated Employer RepresentativeDesignated Employer Representative

A thorough

SubstanceAbusePolicy

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Designated Employer RepresentativeDesignated Employer Representative

Policy written by qualified 3rd party or dedicated individual at employer

Policy reviewed by employer legal counsel

Timely training for your employees Timely training for your supervisors Have a second DER as back-up

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Designated Employer RepresentativeDesignated Employer Representative

DOT and non-DOT policies and procedures must be separate from each other (DOT regulation; DOT pre-empts non-DOT)

Provide a copy of the substance abuse policy to all applicants and employees

Enforce the policy consistently and evenly

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Designated Employer RepresentativeDesignated Employer Representative

Formally associate your EAP with the policy– Ask EAP for educational information– Make formal referrals– Make informal referrals

Attend seminars Network with other DERs Search the internet regularly Subscribe to e-letters

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Designated Employer RepresentativeDesignated Employer Representative

Service agreements with service agents– Language that addresses what the service

agent will and will not do– Stipulation for you to audit/visit service

agent locations at any time without notice– Requirements for reporting and verification– Requirement to provide documentation on

• Certification/qualification of service agent providers

• Certification/qualification of service agent services

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Designated Employer RepresentativeDesignated Employer Representative

Before I close,

are there any

questions?

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Objectives RecapObjectives Recap

We discussed various “mandated” substance abuse programs in Wisconsin

You are now aware of the basic components of a Substance Abuse Program

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Objectives RecapObjectives Recap

I informed you of the most important tool to assist you in the role of a Designated Employer Representative (DER)

Your Substance Abuse Policy

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Thank You!Thank You!

John A. Corpus, CLCSConsultant

Ingenuity First820 Association Drive

Appleton, WI 54914

Phone: (920) 380-4970

Cell: (920) 309-2360

john.corpus@thedacare.org