Employer Drug and Alcohol Record Keeping Requirement and Responsibilities

Written by Lucas Kibby, CleanFleet

Employee drug and alcohol testing plays an important role in the safety and efficiency of your company. Record keeping of drug and alcohol testing information is important for two main reasons: many businesses are federally regulated to do so, and the information will help you in times of an unemployment claim or other lawsuit.

For companies regulated by the DOT, it is important to follow the DOT regarding the maintenance of these drug and alcohol testing records. Knowing which documents you are required to keep and how long to keep them will ensure your drug and alcohol testing program remains compliant.

Record Keeping for Unemployment Claims

Regarding the records to keep for unemployment claim, we will look at a TWC (Texas Workforce Commission) precedent case, Appeal No. 97-003744-10-040997. The case sets out clear guidelines for documentation an employer needs to respond to an unemployment claim involving an ex-employee whose termination resulted from a failed a drug test. In this case, in order to establish a claimant’s positive drug test result constitutes misconduct, an employer must present at least 5 documents:

1. A policy prohibiting a positive drug test result, receipt of which has been acknowledged by the claimant;
2. Evidence to establish that the claimant has consented to drug testing under the policy;
3. Documentation to establish that the chain of custody of the claimant’s sample was maintained;
4. Documentation from a drug testing laboratory to establish than an initial test was confirmed by the Gas Chromatography/Mass Spectrometry method; and
5. Documentation of the test expressed in terms of a positive result above a stated test threshold.

Not following Federal Regulations can Cost Companies Thousands of Dollars in Fines

We all know violation fines of the FMCSRs can be expensive for the trucking industry. This includes drug and alcohol record keeping requirements. Below are 15 cases closed in 2015, according to the FMCSA, where companies violated Drug and Alcohol record keeping requirements and the fines associated with them. The average settlement of these 15 cases was $5,953! The smallest fine from this list was violating regulation 382.401(b)(2): Records of driver verified positive controlled substances test results, which resulted in a fine of $570.

15 FMCSA Cases in 2015 Closed by Enforcement with Drug and Alcohol Regulation Violations

What are the DOT regulations?

Employers covered under DOT drug & alcohol testing regulations must maintain records that document their testing program consistent with 49 CFR Part 40 and other industry specific regulations.

Note: Employers are required to thoroughly document their program, decision making and compliance with respective DOT regulations. The drug & alcohol testing documents listed below will only make up a part of the over-all records you will need to keep.

What do I keep?

Employers are required to keep the following documents:

• Test results.
• Testing process administration.
• Return-to-duty process administration.
• Employee training.
• Supervisor training.

How do I stay compliant in storing the records?

The DOT requires that paper files of all DOT drug and alcohol test (DAT) records are kept and stored in a secure location with controlled access. This means all DAT records must be kept in a separate file under lock and key; they should not be stored with personnel files. If records are kept electronically, they should be password protected.

As the rules make no exceptions for single-driver companies, owner-operators should maintain their DAT files separately as well.

May a Consortium or Third Party Administrator (TPA) keep the records?

Yes, a consortium or TPA keep some or all of your records. Companies do not have to maintain a duplicate set of records but it is the employer’s responsibility to ensure procedures are in place that guarantee accurate and current records are saved according to DOT regulations.

According to the DOT, “After a request has been made by an authorized representative of the appropriate DOT agency, records need to be made available for inspection at the employer’s principal place of business.”

CleanFleet has been a leader in DOT drug & alcohol program management since 2003, and continually excels at providing full DOT compliant screening programs to our clients. These programs include record keeping of all Drug and Alcohol records and reporting assistance. Call our knowledgeable staff today at 503-479-6082 or click here to learn more about our DOT drug & alcohol Program Management.

How long must I keep records?

The length of record keeping depends on the type of transportation mode in which your company is operating.

FMCSA Requirements

• 1 Year: Negative drug test results. Alcohol test results less than 0.02.
• 2 Years: Records related to the alcohol and drug collection process.
• 3 Years: Previous employer records.
• 5 Years: Annual MIS reports. Employee evaluation and referrals to SAPs. Follow-up tests and follow-up schedules. Refusals to test. Alcohol test results 0.02 or greater. Verified positive drug test results. EBT calibration documentation.

Indefinite period: Education and Training records, plus two years after ceasing to perform functions.

FTA Requirements

• 1 Year: Negative drug test results. Alcohol test results less than 0.02.
• 2 Years: Education and training records. Records related to the alcohol and drug collection process.
• 3 Years: Previous employer records.
• 5 Years: Annual MIS reports. Employee evaluation and referrals to SAPs. Follow-up tests and follow-up schedules. Refusals to test. Alcohol test results 0.02 or greater. Verified positive drug test results.

FAA Requirements

• 1 Year: Negative drug test results (except for pilot records). Alcohol test results less than 0.02(except for pilot records).
• 2 Years: Education and training records. Records related to the alcohol and drug collection process.
• 3 Years: Previous employer records.
• 5 Years: Annual MIS reports. Employee evaluation and referrals to SAPs. Follow-up tests and follow-up schedules. Refusals to test. Alcohol test results 0.02 or greater. Verified positive drug test results. Employee dispute records. Negative drug test results for pilots. Alcohol test results less than 0.02 for pilots.

PHMSA Requirements

• 1 Year: Negative drug test results. Alcohol test results less than 0.02.
• 2 Years: Training records, alcohol only. Records related to the alcohol and drug collection process.
• 3 Years: Previous employer records. Training records, drug only.
• 5 Years: Annual MIS reports. Employee evaluation and referrals to SAPs. Follow-up tests, and follow-up schedules. Refusals to test. Alcohol test results 0.02 or greater. Verified positive drug test results. EBT calibration documentation.

FRA Requirements

• 2 Year: Negative drug test results. Alcohol test results less than 0.02. Education and training records. Records related to the alcohol and drug collection process. Employee dispute records.
• 3 Years: Previous employer records.
• 5 Years: Annual MIS reports. Employee evaluation and referrals to SAPs. Follow-up tests and follow-up schedules. Refusals to test. Alcohol test results 0.02 or greater. Verified positive drug test results.

USCG Requirements

• 1 Year: Negative drug test results. Alcohol test results less than 0.02.
• 2 Years: Records related to the alcohol and drug collection process.
• 3 Years: Previous employer records.
• 5 Years: Employee evaluation and referrals to SAPs. Follow-up tests and follow-up schedules. Refusals to test. Alcohol test results 0.02 or greater. Verified positive drug test results.