Is the Federal guidance infringing on an employer’s rights to hire or fire; have power to I hire anyone I want; do I have to keep a drug user employed and pay for management?

These are still-house some of the questions that periodically are asked by employers, many of whom have had drug and alcohol programs in place for some time, but have being obliged not had to deal by positive test results or through workers seeking helper with their addiction.

To add to this confusion, on September 8, 2008, the U.S. Department of Labor, Mine Safety and Health Administration (MSHA) published in the Federal Register a proposed drug and alcohol rule for the mining industry. Although this rule stated that drug and alcohol testing procedures would generally advance those of the DOT rule (49 CFR Part 40), there were some differences in a number of policy requirements. One of these was that when a miner had a defilement (positive test, refusal, etc.) and subsequently successfully completed treatment, the employer was obligated to return the individual to employment. In other words, the employer would have to return the miner to safety-sensitive work after the first violation of the rule.

This proposal, and please list of items – this is just a proposal at this point, triggered many comments from mine operators expressing concerns that this was an breach on their company authority related to personnel action and hire/fire authority. Many mining operations also employ drivers who come under the authority of the Federal Motor Carrier Safety Administration (FMCSA) and some are wondering if this proposal inclination somehow overflow into FMCSA regulations.

At this instant, the only solidify regulatory requirement addressing drug and alcohol violations and employer personnel actions – other than for Federal agencies – is the DOT Part 40 rule. Most of which is required from the employer is spelled out in Subpart B-Employer Responsibilities. Granted, the rule is complex and once hard to understand – on a level though it was one of the first Federal rules written in “plain English”. There are a lot of requirements that an employer has to meet and these often seem to be stringent and confining on what actions employers can support a character.

Believe it or not, nowhere in the rule is there any requirement that has a direct impact on the employer’session decision to hire, stir up, fire, etc. Lets look at the whole employment action – within the transportation industry - and see what is really root asked of the employer. A dubious issue to preserve the memory of is that wholly of these regulatory requirements affect only those individuals who are applying for or are working in safety-sensitive (SS) positions.

In the pre-employment process, DOT requires a negative drug test for applicants who decision be performing SS functions. Nowhere in the rule text does it affirmation you may not hire the individual; it states that you may not use that individual in a SS position until there is a negative pre-employment test result.. An applicant is required to sign a set at liberty form to warrant you to obtain drug and alcohol testing knowledge from previous employers. If the applicant refuses to sign you can still hire that individual, but you cannot use that person in a SS position.

When an employee who is working on account of you violates the rules, you are required to dislodge the individual from SS duties. Again, there is in no degree rule requirement that this individual be terminated from your employment. Another frequently asked question is related to employer responsibility to provide treatment following a violation. Section 40.289 is clear: “As an employer, you are not required to provide a SAP evaluation or any subsequent recommended education or treatment for an employee who has violated a DOT drug and alcohol regulation.”

Generally, there is a stand by part to that question and that is who pays for SAP evaluations. Again, Part 40 is clear on that; Section 40.289 continues by means of: “Payment for SAP evaluations and services is left since employers and employees to decide and may be governed by existing management-labor agreements and health care benefits.”

And finally, the question of returning someone who violated the rule back to employment. DOT does not insist upon an employer to return that individual to employment or to SS duties. It is entirely an employer’s option based on visitors policy. In fact, if an employee does not elucidate progress in treatment, DOT provides the employer an open-ended option in Section 40.301: “As the employer, following a SAP report that the employee has not demonstrated successful compliance, you may take personnel action consistent with your course of action and/or labor-management agreements.”

Bottom Line: All personnel actions (hire, light, suspension, promotion, etc.) are at the employer’s option. DOT does not mandate some of these functions. True, they be favored with established criteria for SS positions in the transportation industry based on safety and protection of the traveling public. These criteria only control who and when an individual can perform these SS functions – all personnel actions are in your hands.