Direct Observation of Return-to-Duty and Follow-up drug tests.
49 CFR 40 requires Direct Observation of Return-to-Duty and Follow-up drug tests. Does this apply to drug tests conducted as part of the Settlement Agreement?
The provisions of 49 CFR 40 have been thoroughly examined for applicability to the Settlement Agreement. The Direct Observation (DO) methods will not apply to drug tests conducted as part of the requirements for the Settlement Agreement.
The DO procedures in 49 CFR 40 will apply to Return-to-Duty and Follow-Up tests as required in 49 CFR 40, Subpart O. These tests are required when an individual has had a drug test violation and is seeking to return to work.
As such, these tests are Substance Abuse Professional (SAP) required drug tests with which an employer must comply with when hiring an individual with a drug test violation.
The Settlement Agreement does not invoke the SAP process but does require a mariner to successfully complete a substance abuse treatment program that is accredited by a state or an accrediting organization like JCAHO (Joint Commission for Accrediting Healthcare Organizations). The 12 tests that follow successful treatment program completion are required by the Settlement Agreement and not by 49 CFR 40. These tests are to be conducted on a randomized basis (no notice).
In making this decision, the Sweeney CDOA (CDOA # 2535 and 2546) were reviewed for any applicability for DO. Tests conducted per the Sweeney CDOAs and the Settlement Agreement should not be considered as follow-up drug tests under 49 CFR part 40, Subpart O. The Settlement Agreement does not explicitly state how the tests are to be conducted.
Drug tests that are conducted per the Settlement Agreement may be unobserved.