Every Department of Transportation (DOT) governed employer must have a Designated Employer Representative (DER). The DER is, as the title suggests, the official contact administering all aspects of your workplace drug and alcohol program and policy, from representing your company to service providers to overseeing education efforts with your staff. DOT defines the role as “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.” DOT also makes it clear that the individual filling this role must be an employee of the company. Service providers, for example, may not fill the role of a DER.
It’s a critical position and requires an intricate understanding of both company policy and the laws governing drug and alcohol policy. Here are the key things you need to know about being your company’s DER.
1. It’s Actually Six Jobs in One
The first thing you need to know about being a DER is that the job actually contains 6 very distinct roles, all of which require a different skill set. These include:
The DER is ultimately responsible for all aspects of a company’s drug testing and alcohol testing program. (Learn more in Drug and Alcohol Program Best Practices). They oversee the random testing selection process and are responsible for ensuring it is, as DOT regulations stipulate, actually random. DERs will contract with outside service providers and labs on the company’s behalf and monitor the drug testing process from start to finish. This includes handling issues such as incomplete or lost specimens, testing errors, tampering, and any employee appeals.
The Policy Maker
DERs are responsible for creating and updating the company drug and alcohol policy and for communicating that policy to both supervisors and employees. To do this they have to know all of the DOT, agency and other rules that apply to drug and alcohol testing in their workplace and have to remain current on any changes that are made to those regulations. This includes ensuring that company policy meets all DOT and other regulations and communicating any changes in those regulations, such as the recently released Part 40 Final Rule, to employers and employees.
The DER serves as the main point of contact for all service providers including Medical Review Officers (MRO), Substance Abuse Professionals (SAP), Breath Alcohol Technicians (BAT) and laboratory and collection personnel. They also act as the liaison between these service providers, employees, and the employer and receive and track all test results and decisions or recommendations made by MROs and SAPs. It’s important to realize that the DER is also ultimately responsible for errors in the process or contraventions of DOT or other regulations. While these service providers can be expected to follow the rules, mistakes will happen, but from a legal perspective, these errors are the company’s and therefore the DER’s responsibility.
As the employer’s representative for all things related to the company’s drug and alcohol policy, the DER is also responsible for enforcing it. This includes making judgment calls regarding reasonable suspicion testing and the removal of employees from safety-sensitive positions following a positive test.
The Record Keeper
Ensuring the company complies with regulations regarding drug and alcohol testing is part of the DER’s job and this includes recording and reporting all testing results, test refusals, and repercussions. These recordkeeping duties will also include keeping track of education efforts, including supervisor training on reasonable suspicion.
Education is critical to the success of your company’s drug and alcohol program and the DER both creates and delivers the company’s education efforts.
2. It’s A 24/7 Job
Contact information for DERs is provided to everyone involved with a company’s drug and alcohol testing program and they have to be available whenever they are needed. For companies that run their trucks around the clock, this means that DERs must be available 24 hours a day, 7 days a week. Because the DER is virtually on call 24/7 and must be available for consultation whenever and wherever the business is operating, one DER may not be enough. Most companies will appoint several supervisors as DER. Regardless of how many DERs are appointed, each must have the appropriate training and be prepared to perform all of the duties of the DER.
3. Be Prepared – Audits Will Happen
Audits are a way for government agencies to monitor compliance. These audits can come from the Department of Transportation or any one of its covered agencies. They can also be conducted by state and local authorities. Typically, a DOT audit will look for proof of your:
- Company drug and alcohol policy that is consistent with DOT regulations
- Substance abuse education efforts
- Reasonable suspicion training for your supervisors
- Employees' enrollment in random drug testing
- Negative pre-employment drug tests for all employees
- Receipt of drug test records from your employee’s previous employers
Specific agencies such as the Federal Motor Carrier Association (FMCA) and the Federal Aviation Administration (FAA) may have additional audit requirements.
4. DERs Must Keep Records
Audits are just one reason you need to keep meticulous records. It can also afford your employer some protection against liability. The rules regarding DOT record keeping are complex and vary according to the specific agency that governs your company. Records must be kept for a minimum of 1-5 years depending on the type of records and the associated agency and generally include:
- Test results (including refusal to test, positive results, SAP recommendations, etc.)
- Testing process administration
- Return-to-dutyprocess administration
- Employee training
- Supervisor training
5. Your Training Matters
Keeping track of a myriad of regulations, service providers, drug tests and employees requires the DER to be a meticulous and organized manager, but it also requires a vast amount of knowledge. Various private companies and testing organizations offer DER training and anyone considering taking on this role needs to be trained by a reputable company. Training can be done face to face or online and typically covers existing DOT regulations, compliance, roles, and responsibilities as well as the repercussions for violating regulations.
6. Don’t Forget To Educate And Inform
Because the management of your employer’s drug and alcohol testing program is a high-profile part of your job description, it is easy to forget that your duty to educate and inform your employees is equally important. Don’t. This too is a mandated part of your position according to DOT. These education and information efforts should include:
- Written copies of the company drug and alcohol policy
- Effects, signs, and symptoms of drug use and alcohol misuse
Many agencies, including the FAA, have additional requirements that require employers to display and distribute informational material and a community service hotline telephone number for employee assistance. Other agencies have other requirements. For example, the FMCSA requires all drivers to sign off on their receipt of the company drug and alcohol policy.
7. Be Able To Distinguish DOT, Non-DOT And Everything In Between
DERs are often tasked with juggling workplaces that include both DOT and non-DOT covered employees. (Learn more in Crucial Differences Between DOT and non-DOT Drug Test Requirements). It’s critical that you know the difference and that you keep these two drug and alcohol testing operations separate.