July/August 2004
Scrap supervisors must know some dos and don’ts when they suspect a driver or other employee of using drugs or alcohol in the workplace.
By Robert L. Reid
"Reasonable Suspicion” might sound like the title of a detective novel—and it can indeed include plenty of dramatic elements, from drugs and alcohol to lawbreaking and attempts to conceal a crime. In reality, reasonable suspicion is a tool for scrap plant supervisors to use when they think a company driver—or any employee—is under the influence of drugs or alcohol while on the job.
Specifically, reasonable suspicion describes the level of evidence that supervisors must have to request a federal drug screen or breath-alcohol test from drivers holding a commercial driver’s license (CDL), also known as a Class A or Class B license. It covers times when the drivers are actually operating their vehicles as well as when they’re performing certain “safety-sensitive” transportation functions, which can include inspecting, loading/unloading, or repairing a vehicle, simply remaining with a disabled vehicle, and other activities.
The rules and restrictions for establishing reasonable suspicion are spelled out by the U.S. Department of Transportation (DOT) through the Federal Motor Carrier Safety Administration’s Web site (www.fmcsa.dot.gov), and supervisors must take at least 60 minutes of training for recognizing illegal drug use and an additional 60 minutes for alcohol misuse.
Reasonable suspicion training can also help supervisors address other workplace drug- and alcohol-testing situations, says LouAnn Niehaus, who has spoken on the subject at regional and national ReMA meetings. Though DOT rules require random tests of all 10 million CDL drivers in the nation, a dozen or so states—including California—prohibit companies from conducting random drug tests of nondrivers, Niehaus notes. But supervisors trained in reasonable suspicion and backed up by a company policy on drug and alcohol testing can require immediate testing of any employee when they observe keys signs or indicators of drug or alcohol abuse. They can also use their training to help overcome any legal challenges by employees who test positive.
That’s what Adams Steel (Anaheim, Calif.) discovered a few years ago. In this case, one its supervisors suspected drug abuse by the manager of a company that Adams had acquired. The manager was fired when he tested positive for drugs, explains Carl Clark, Adams Steel’s general manager. Subsequently, the former manager was denied unemployment benefits. That’s when the issue ended up before a judge. When the judge asked Adams Steel why it had requested a drug test for the manager, the company’s supervisor explained that she was trained and certified in reasonable suspicion, Clark says.
“Her certification was the deciding factor” in the judge’s decision to support Adams Steel, he states. “Without that certification, he probably would have ruled in favor of the employee.”
Conversely, supervisors who don’t understand the correct procedures in calling for a drug test under reasonable suspicion for federal DOT testing or as a company policy can end up causing legal headaches for their company even if the employee tests positive for drugs or alcohol, Niehaus warns.
Moreover, there are problems with the federal DOT testing procedures, especially surrounding the actual drugs that they do—and do not—cover (see “Going Beyond the Basics” on page 43). Thus, employers are in a bind: required to use the DOT procedures for drivers but hindered by the limitations of that law.
What’s an employer to do?
Basically, Niehaus says, companies need to make sure their supervisors fully understand the DOT rules for reasonable suspicion—and then make an expanded drug/alcohol testing program part of their company policies, including employees and substances not covered under the DOT procedures.
Know the Rules
“Reasonable suspicion is defined in the DOT regulations as the belief that the driver has violated the alcohol or controlled substances prohibitions based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the driver,” explains Niehaus, who urges companies to adopt similar language in their company policies about drug and alcohol abuse.
Since this definition is a mouthful, Niehaus breaks down the observations supervisors need to make by each key term:
“Specific” : Say that the driver smelled of burning rope (a sign of marijuana use) when he walked into your office, or you found the driver sleeping at the corner. Niehaus offers supervisors a checklist of observable items ranging from whether they smell alcohol on the employee’s breath to whether the person has trouble walking or seems paranoid or confused.
“Contemporaneous” : This means the observation happens right now—such as seeing a driver smoking a joint as he pulls into your yard. It does not mean that you saw a driver with an open container concealed in a suspicious bag last Tuesday but are just now getting around to having her take a breath-alcohol test.
“Articulable” : You need to be able to explain exactly what you observed. Don’t say, “I had a feeling he’s taking drugs.” Spell out what you observed, and be sure to document everything: His eyes were bloodshot. He was stumbling as he got out of the cab. His speech was slurred.
Another cause for having reasonable suspicion would be signs of drug paraphernalia, Niehaus says. Such signs can include broken balloons (used for holding heroin), small pieces of burned tin foil (used for storing and smoking crack cocaine), and tiny pipes ostensibly sold for tobacco but really used for drugs. Ironically, a once-familiar sign of heroin abuse—a used hypodermic—is more likely today to have been discarded by a diabetic, Niehaus notes. Today’s heroin is as much as 20 times more pure than the heroin of the 1960s and thus is commonly snorted or ingested rather than injected, she explains.
DOT rules also say that symptoms of drug withdrawal can be used to establish reasonable suspicion, but not signs of alcohol withdrawal. That’s because alcohol is a legal product that simply can’t be consumed at certain prohibited times—such as while driving.
Remember that DOT regulations require the supervisor who calls for the drug or alcohol test to have actually observed the suspicious behavior or signs/symptoms of abuse. Don’t rely on anyone else’s observations that your driver smelled of alcohol or was weaving as he drove, Niehaus warns. Instead, try to observe the same problems yourself before asking the employee to take a drug or alcohol test. And again, document all your observations and conclusions.
Focus on Performance and Safety
When observing an employee’s behavior for signs of alcohol or drug abuse, keep the focus on his or her work performance and on-the-job safety, Niehaus suggests. For instance, drug and alcohol abusers tend to be absent more than other employees, especially on Mondays, she notes. They also tend to let their personal appearance deteriorate and have more accidents and injuries, including unexplained bruises. They might ask to work with other known drinkers or drug users (one company she works with routinely has employees in a certain department tested, says Niehaus).
In terms of physical appearance, an employee using a hallucinogen such as LSD might have extremely dilated pupils that resemble giant pools of black, while people taking too much OxyContin might have their pupils constrict to tiny pinpricks. Watch for employees who wear sunglasses at unusual times to conceal their eyes, Niehaus says.
Other signs of drug or alcohol abuse can include bloodshot eyes, shaky hands, a runny nose or sniffle that won’t go away, or an em-ployee who is away from his or her workstation too often or depressed all the time, Niehaus says. But before jumping to conclusions, talk with the employee about these specific behaviors to find out if there’s another explanation.
“Not all changes in behavior come from drug and alcohol abuse,” she notes. “Not everybody you find crying or unhappy or unkempt has a substance-abuse problem. They could have lost a family member, could be getting divorced, or have other problems or issues.”
An employee who sleeps at work, for instance, could be a drug abuser—or a sleep-deprived new parent, Niehaus notes. Moreover, “many signs of drug abuse mimic mental illness, so you really have to be careful.”
Watch out for employee alibis, though. Some can sound quite convincing. When Niehaus addressed the 2004 ReMA convention in Las Vegas, attendees mentioned a familiar excuse used by employees who tested positive for marijuana—that they’d been around people at a party who were smoking marijuana, but they hadn’t smoked it themselves. Niehaus debunked that alibi, noting that the testing methods used by today’s laboratories won’t record a positive result for passive inhalation of marijuana unless the employee is “in a phone booth, with someone smoking 200 joints over a 22-hour period—but it’s what everyone’s going to tell you.”
Likewise, if an employee claims to smell of alcohol because a waitress spilled someone else’s drink on him at lunch, look for additional signs of drinking. If he seems otherwise sober, then you probably don’t have reasonable suspicion to require him to take a breath test, Niehaus says. But if his speech is slurred and he can’t stand up straight, then go ahead and ask for the test.
Staying Suspicious
Once you’ve decided to have an employee tested under reasonable suspicion, you need to stay suspicious a bit longer. Do not, for instance, allow that person to operate a vehicle—the company’s or the employee’s own. Instead, have the employee taken to the testing facility and then somehow taken home, even if that means leaving your company truck at a customer’s site and having another driver bring it back. Otherwise, if the employee actually is under the influence of alcohol or drugs, you expose your company to a tremendous risk that someone will get hurt.
Also, don’t give the person the time or opportunity to adulterate his or her drug test. The Internet is filled with sites offering advice and products to help employees beat drug tests, Niehaus notes, some of which are easily detected by today’s laboratories and some of which can mask drug use or fool the lab technicians. These range from the simple technique of drinking a gallon of any liquid before the test—in order to dilute the drug to undetectable levels—to the bizarrely elaborate. One online product, for instance, contains a package of clean human urine (to be strapped around an employee’s waist) and a device to warm the urine to the proper temperature. Since a chronic drug user might keep such devices handy, be sure that the person being tested doesn’t go to his or her car or locker unescorted prior to taking the test.
Conversely, make sure you wait long enough for the drug’s presence to be recordable. Niehaus worked with one scrap processor who caught his son taking an illegal drug at work and rushed him to a clinic to be tested. To everyone’s surprise, the test was negative—but only because the urine sample had been given so quickly. It actually takes almost two hours for a drug to enter a person’s urine, Niehaus notes. Before a second test could be performed, the son had confessed his drug use to his father, she adds.
Even the proverbial doctor’s note or a seemingly legal prescription can raise as many questions as it answers. Prescription drugs such as OxyContin and Vicodin are increasingly popular with abusers, who sometimes shop around for multiple prescriptions from different physicians, Niehaus says. So if an employee under suspicion claims to be simply taking his or her regular dosage, look for other signs that indicate misuse, such as pinprick-sized pupils.
Niehaus even dealt with one office employee who produced a note from her doctor stating that she was taking unspecified medications that would cause her to test positive for illegal drugs. When Niehaus checked with the doctor, it turned out that the note had originally said the woman was not taking any medications that might produce a false positive. A little white-out correction fluid and a photocopier had produced the altered note, which the woman had apparently used several times before. Once caught, Niehaus says, the woman complained: “This worked everywhere else!”
Going Beyond the Basics
Under DOT regulations, employers must test drivers with a urine screen for drugs in the following situations:
• pre-employment;
• post-accident;
• when a supervisor has reasonable suspicion of drug use; and
• randomly within a pool of at least 50 percent of the company’s drivers.
In addition, if the driver has tested positive for using a controlled substance, he or she must be tested again before returning to work and then in unannounced follow-up tests, at least six of them over the next 12 months.
The alcohol-testing requirements are similar, except there is no pre-employment testing (the distinction is made because the drugs covered by the DOT rules are always illegal, whereas alcohol is an otherwise legal product that must not be consumed while driving or under certain other DOT restrictions). Also, the random test for alcohol has been reduced from a pool of 25 percent of a company’s drivers to just 10 percent, Niehaus says.
Though many companies rely on pre-employment tests to weed out potential problems, too many firms simply use the DOT panel of drugs, which includes marijuana, cocaine, amphetamines, opiates (including heroin), and phencyclidine (PCP). That list is out of date, Niehaus says, noting that her firm has recorded only one positive test for PCP in the past 18 years. Mean-while, popular synthetic opiates such as OxyContin and Vicodin aren’t even covered by the DOT screening.
The DOT’s post-accident rules can also be restrictive. For instance, they allow drug or alcohol testing only in certain cases, such as when the accident involves either a fatality or a citation against the driver—which means you can’t test a driver involved in a minor fender bender, Niehaus says.
That’s why wise employers update their drug and alcohol programs by making it company policy to test for a wider panel of drugs and by linking such tests to any accident, no matter how minor.
At Annaco Inc. (Akron, Ohio), any documented injury, accident, or property damage results in the employee being drug-tested, explains Robert Toth, the company’s certified human resources manager. Whether the employee is a new hire or a veteran with the company, he or she knows that if they ever have a work-related accident “or have a cut or bruise, or go to the hospital even for a sore back, they’re going to get tested,” Toth says, asserting that this policy gives employees a strong incentive to stay off drugs.
Scrap Stories
Though LouAnn Niehaus warns that drug-abusing coworkers can sometimes seek each other out, a more beneficial sort of peer pressure can also help keep employees off drugs, notes Jeff Wilke, corporate director of safety for OmniSource Corp. (Fort Wayne, Ind.). For example, he explains, “If I’m working around trucks and forklifts and stuff like that, I wouldn’t want somebody operating under the influence—it becomes a peer pressure and work-safety issue for everybody involved.”
OmniSource also offers a direct incentive for employees with a drug problem to seek help. Workers who voluntarily seek rehabilitation through the company’s employee assistance program (EAP) can keep their jobs if they stay off drugs and avoid drinking on the job, Wilke notes. It’s automatic termination, though, for those caught using drugs or alcohol by a random test or one ordered under reasonable suspicion.
Another scrap company learned the hard way why you should check out the laboratory that handles your employee drug tests. This recycler discovered that a new employee had a drug habit when he was seen driving a company truck to a well-known local crack house. Though the employee had recently passed a pre-employment drug test, the laboratory admitted only after the fact that there had been problems with the test results.
And never forget the power of addictive drugs. At Pacific Metals Ltd. (Vancouver, British Columbia), a self-employed local driver faced several hours of waiting before his truck would be unloaded, so he decided to pass the time by taking some sort of drug, explains Mark Lotzkar, president and general manager. To Pacific Metals employees, however, it looked like the man had suffered a heart attack, so they called an ambulance, which took the driver to a local hospital. Later, the driver returned to collect his vehicle, angry that Pacific Metals’ intervention had disturbed his “trip.”
Needless to say, that driver no longer delivers material to Pacific Metals. While the company doesn’t employ any drivers of its own, Lotzkar notes, it’s considering asking for drug/alcohol testing results from all future drivers who pick up or deliver material and who must meet either U.S. DOT or Canadian testing requirements.
Another example of what scrap companies are up against comes from E.L. Harvey & Sons Inc. (Westborough, Mass.), where pre-employment tests keep people with drug problems out of the company’s work force, says Gerry Sjogren, safety director. But there have been two incidents where drivers were caught using drugs by the company’s random testing program. Though counseling from a substance abuse professional was offered, both employees turned down the offer and quit.
“It doesn’t make any sense to me, to have a guy whose livelihood is driving a truck willing to give it up so he can continue taking illegal drugs,” Sjogren muses.
Robert L. Reid is managing editor of Scrap.
Scrap supervisors must know some dos and don’ts when they suspect a driver or other employee of using drugs or alcohol in the workplace.