Reasonable suspicion is one of several reasons an employer may rely on to require employees to submit to a drug or alcohol test. But what does having “reasonable suspicion” really mean when applying this concept in a drug-free workplace policy? Depending on the...
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Substance Abuse in the Workplace
Substance use and abuse is estimated to cost around $400 billion annually with severe impacts on the workplace related to “lost productivity and absenteeism, turnover, health care expenses, disability, and workers’ compensation.”
There are several methods lawmakers and employers have implemented to mitigate the impact of substance abuse in the workplace, but the two primary means are through employer-sponsored Employee Assistance Programs (EAPs) and Drug-Free Workplace Policies.
EAPs are designed to encourage employees who need assistance from Substance Abuse Professionals to seek help without the risk of adverse employment consequences.
If the EAP is the proverbial “carrot” to entice employees to seek help, drug and alcohol testing under the Drug-Free Workplace Program can be considered the proverbial “stick.” Under a drug and alcohol testing program, employers may test under a variety of conditions ranging from pre-employment to post-accident, random, reasonable suspicion, and many more.
In each case, there is a triggering event which allows the employer to request a drug and/or alcohol test: an employee is offered a position conditioned on passing a drug test; a scientifically valid random selection method pulled the employee’s name from the random pool; or one or more supervisors develops “reasonable suspicion” that an employee may be under the influence of a prohibited substance at work.
A major point of contention between employees and employers is what constitutes “reasonable suspicion” for testing. The definition varies depending on a variety of factors ranging from applicable federal or state law as well as company policy—which is why appropriate training is necessary for supervisors who will be making such determinations to test.
Before a drug or alcohol test can be ordered, there must be a triggering event. In the case of a reasonable suspicion test, the triggering event is when one or more supervisors develop a reasonable and articulable belief that the employee is under the influence. Once this suspicion has developed, the employee undergoes an interview with one or more supervisors and is then either transported to a testing facility or tested on-site.
If the drug and alcohol tests are negative, the suspicion would appear to be unsubstantiated, if the drug or alcohol test is positive, then the suspicion would appear to be corroborated; though, a positive laboratory result for a drug test does not necessarily indicate a violation of the drug-free workplace program.
After the laboratory confirms a positive result, the laboratory forwards that result to a Medical Review Officer (MRO) to determine whether the result is consistent with the legal, prescribed use of a medication. If not, the MRO reports a positive result to the employer. If so, there must be a determination of whether the medication at its current prescribed dosage represents a safety risk. If not a risk, then the MRO should report a negative test. If a risk, the MRO should report a negative, safety risk.
How to Recognize Signs and Symptoms
Determining whether something unusual about an employee is entirely innocuous or whether it is cause for concern is at the foundation of reasonable suspicion determinations. Supervisors must be able to recognize whether a change in speech, behavior, appearance, or even body odor may constitute a possible sign or symptom of drug or alcohol use or abuse.
Is the employee’s repeated tardiness or absenteeism cause for concern? Is an unkempt appearance alone enough to justify reasonable suspicion? Supervisor training for reasonable suspicion determinations is designed to adequately prepare an individual to effectively recognize the common signs and symptoms of substance use or abuse at work.
Who Needs Reasonable Suspicion Training?
Employers who are either required to make reasonable suspicion determinations to test under federal or state regulations or are permitted to under state regulations should train their supervisors to make those determinations.
Training must cover the specific, contemporaneous physical, behavioral, and performance indicators of probable drug and alcohol use. Employers with employees covered by federal regulations including United States Department of Transportation (DOT) regulations must abide by the following agency mandates:
- Federal Motor Carrier Safety Administration (FMCSA) – 49 CFR Part 382
- Federal Railroad Administration (FRA) – 49 CFR Part 219
- Federal Aviation Administration (FAA) – 14 CFR Part 120
- Federal Transit Administration (FTA) – 49 CFR Part 655
- Pipeline and Hazardous Materials Safety Administration (PHMSA) – 49 CFR Part 199
- United States Coast Guard (USCG) – 46 CFR Parts 4, 5, and 16
In most cases, any supervisor who will be making reasonable suspicion or reasonable cause determinations must first have been trained on the recognition of the signs and symptoms of drug or alcohol use or abuse. The required components of that training vary and depend on several of factors including whether the supervisor is overseeing:
Federally regulated (DOT) employees, also known as “covered” employees.
Supervisors who fall under these regulations should enroll in the DOT Reasonable Suspicion Training for Supervisors course.
If a supervisor is overseeing employees subject to a federal testing program, then the training requirements are defined by the applicable federal regulation. For example, the United States Department of Transportation (DOT) defines training requirements for supervisors as follows:
Federal Motor Carrier Safety Administration (FMCSA)
49 CFR §382.603 requires that “all persons designated to supervise drivers receive at least 60 minutes of training on alcohol misuse and receive at least an additional 60 minutes of training on controlled substances use. The training will be used by the supervisors to determine whether reasonable suspicion exists to require a driver to undergo testing under §382.307. The training shall include the physical, behavioral, speech, and performance indicators of probable alcohol misuse and use of controlled substances.”
USCG: 46 CFR §16.401(b) requires at least 60 minutes of training for crewmembers and supervisory personnel. Particularly, it states that “[t]he training program must include at least the following elements: the effects and consequences of drug and alcohol use on personal health, safety, and work environment; the manifestations and behavioral cues that may indicate drug and alcohol use and abuse; and documentation of training given to crewmembers and the employer’s supervisory personnel. Supervisory personnel must receive at least 60 minutes of training.”
Federal Transit Administration (FTA)
49 CFR §655.14(b)(2) indicates that “Supervisors and/or other company officers authorized by the employer to make reasonable suspicion determinations shall receive at least 60 minutes of training on the physical, behavioral, and performance indicators of probable drug use and at least 60 minutes of training on the physical, behavioral, speech, and performance indicators of probable alcohol misuse.”
Federal Aviation Administration (FAA)
14 CFR §120.223(b) requires that “Each employer shall ensure that persons designated to determine whether reasonable suspicion exists to require a covered employee to undergo alcohol testing under §120.217(d) of this subpart receive at least 60 minutes of training on the physical, behavioral, speech, and performance indicators of probable alcohol misuse.”
In addition, 14 CFR § 120.115(c) requires that “[t]he employer’s supervisory personnel who will determine when an employee is subject to testing based on reasonable cause shall receive specific training on specific, contemporaneous physical, behavioral, and performance indicators of probable drug use in addition to the training specified in §120.115 (c). . . . The employer shall ensure that supervisors who will make reasonable cause determinations receive at least 60 minutes of initial training. . . . The employer shall implement a reasonable recurrent training program for supervisory personnel making reasonable cause determinations during subsequent years. . . Documentation of all training given to employees and supervisory personnel must be included in the training program. ”Supervisors who fall under FAA regulations should enroll in the FAA Reasonable Suspicion Training for Supervisors course for initial training, then when ready for refresher, supervisors should enroll in the applicable recurrent training program for that year.
Federal Railroad Administration (FRA)
49 CFR §219.11 requires that “[e]ach supervisor responsible for regulated employees (except a working supervisor who is a co-worker as defined in §219.5) must be trained in the signs and symptoms of alcohol and drug influence, intoxication, and misuse consistent with a program of instruction to be made available for inspection upon demand by FRA.
Such a program shall, at a minimum, provide information concerning the acute behavioral and apparent physiological effects of alcohol, the major drug groups on the controlled substances list, and other impairing drugs.
The program must also provide training on the qualifying criteria for post-accident toxicological testing contained in subpart C of this part, and the role of the supervisor in post-accident collections described in subpart C and appendix C of this part. ”Supervisors who fall under FRA regulations should enroll in the FRA Reasonable Suspicion and Post-Accident Toxicological Testing Training
Non-Federally regulated (Non-DOT)
If a supervisor only oversees employees which are not subject to a federal testing program, then the training they must receive is based on state law and company policy.
If this is the case, the supervisor should take a Non-DOT Supervisor Reasonable Suspicion course. Some states mandate the minimum requirements and components of the training; some may make the training only required when an employer is opting-in to a state-sponsored voluntary drug-free workplace program, and some develop the minimum requirements for suspicion in case law. Supervisors of Non-DOT employees should enroll in the Non-DOT Reasonable Suspicion Training for Supervisors
Why is Reasonable Suspicion Training Important?
An expansive list of potential liabilities may be incurred in conjunction with a failure to provide reasonable suspicion training for supervisors.
SAFETY: The obvious reason to train is safety. Drug and alcohol use at work can become a hazard to company personnel, property, and morale. Supervisors who are not appropriately trained will either be unable to spot indicators of drug or alcohol use and thus prevent potential work accidents or be able to spot indicators of drug or alcohol use but be unable to make a determination to test without the appropriate training credentials.
LIABILITY: Reasonable suspicion training is required under federal regulations and required or highly recommended under state or provincial law. Determinations to test not based on sufficient reasonable suspicion may be subject to challenge in court as discriminatory or retaliatory behavior, and/or tortious conduct giving rise to tort liability under theories like “intrusion upon seclusion” claims and, for government employers and other state actors, may be subject to constitutional privacy claims.
COMPLIANCE: Even if a company inexplicably manages to avoid safety and liability issues, it may still be subject to adverse consequences for non-compliance. Federal and many state regulations have strict requirements on the operation of drug-free workplace policies; supervisors under these programs are required to be trained on reasonable suspicion determinations and those companies who fail to comply are subject to fines and other adverse regulatory actions for non-compliance.
How is Reasonable Suspicion Training Conducted?
Reasonable suspicion training may be conducted in-person or via online format including videos, presentations, and handouts. Once purchased online, our courses are available to start immediately.
There is no need to wait for credentials to be created and emailed manually or to wait for the next class to be offered. Our online courses consist of interactive videos, knowledge checks, downloadable materials, an exam at the end to ensure retention, and formal and professional certificates each student earns at the end of the course with their own unique certificate numbers which can be verified by inspectors in your next audit.
While the vast majority of our learners enroll online, this training is also available in-person at one of our training locations or at your location upon request.
How do I Enroll?
Enrolling in an online course is easy: select the course to the right that corresponds with your needs and then click “Enroll Now” at the top. Once you have registered you will be automatically emailed login credentials to get started.
If you purchase more than one course credits you will be assigned a manager role in order to disseminate invitations to your supervisors (all you need is a unique email for each), track their progress from your login, and download their certificates once complete.
If you are interested in an in-person quote, please contact us with the location you would like to have training conducted, how many students you would have trained, and which courses you would like to have taught.
 Eric Goplerud, et al. “A Substance Use Cost Calculator for US Employers With an Emphasis on Prescription Pain Medication Misuse” 59 J. Occup. Environ. Med. 1063 (2017) (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5671784/ ).
Articles on Reasonable Suspicion Training
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