Designated Employer Representative (DER) Definition and Responsibilities
Employers of safety-sensitive transportation employees play a vital role in ensuring the safety of their employees and the traveling public. Employers are responsible for developing and implementing successful DOT workplace drug and alcohol programs that have as their components clear policies, provisions for education and training, drug and alcohol testing, and when needed, referral for evaluation and treatment.
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As defined in 49 CFR Part 40, the Designated employer representative (DER) is an employee authorized by the employer to take immediate action(s) to remove employees from safety-sensitive duties, or cause employees to be removed from these covered duties, and to make required decisions in the testing and evaluation processes. The DER also receives test results and other communications for the employer, consistent with the requirements of this part. Service agents cannot act as DERs.
As defined in 49 CFR Part 40, the Service agent is any person or entity, other than an employee of the employer, who provides services specified under this part to employers and/or employees in connection with DOT drug and alcohol testing requirements. This includes, but is not limited to, collectors, BATs and STTs, laboratories, MROs, substance abuse professionals, and C/TPAs. To act as service agents, persons and organizations must meet the qualifications set forth in applicable sections of this part. Service agents are not employers for purposes of this part.
The DER overall responsibilities:
- Responsible for administering the Drug and Alcohol Program.
- The Liaison with drug and alcohol testing service agents.
- The DER is informed of every test and its result.
- The DER performs the functions necessary according to the results of the tests and are authorized by employer to take immediate action(s)
- To remove employees from safety sensitive duties
- To make necessary decisions in the testing and evaluation process
- Receives test results and other communications for the employer
The DER is an extremely important position to keep the employer in compliance with the DOT Drug & Alcohol Testing Program. This should be a person of authority. If your company has not made a determination of who is the DER, it is time to do so. The term DER is cited 105 times in 49 CFR part 40. This function cannot be outsourced to service agents. Service agents must have appropriate DER contact information in order to perform their duties including contacting the DER about any problems or issues that may arise during the testing process or any part of providing services in the DOT Drug & Alcohol Testing Program.
Listed below is a list of the important areas of compliance that the DER must be involved in for the employer to be compliant with the regulations.
Designated Employer Representative – the company must appoint a Designated Employer Representative (DER) who is overall responsible at the company for the DOT Drug & Alcohol Testing Program.
Written Policy – The DOT Agencies and USCG require employers to have written policies for their DOT testing programs. At a minimum, these policies must contain specific information required by the appropriate DOT Agency or USCG. Your policies must clearly delineate between the items and actions which are required by DOT and which are required by the company or employer.
Regulations on File – The DER should maintain a copy of all DOT drug and alcohol regulations on file at the DER’s office. This includes 49 CFR Part 40 and the appropriate DOT Agency and USCG regulations. The specific DOT Agency and USCG regulations are as follows:
- FMCSA – Federal Motor Carrier Safety Administration – 49 CFR Part 382
- FAA – Federal Aviation Administration – 14 CFR Part 120
- FRA – Federal Railroad Administration – 49 CFR Part 219
- FTA – Federal Transit Administration – 49 CFR Part 655
- PHMSA – Pipeline and Hazardous Materials Safety Administration – 49 CFR Part 199
- USCG – US Coast Guard [Department of Homeland Security] – 46 CFR Parts 4 & 16
As DER you must know which agency or agencies regulate your business and you must be familiar with the specific agency regulation for the DOT Drug & Alcohol Testing Program.
Previous Employer Checks – When hiring an employee for a DOT covered position, the hiring employer must check with previous employers to insure that the employee is eligible for hire into a DOT covered position. This requirement applies only to employees seeking to begin performing safety-sensitive duties for you for the first time (i.e., a new hire, an employee transfers into a safety-sensitive position). If the employee refuses to provide this written consent, you must not permit the employee to perform safety-sensitive functions.
Employee Education & Supervisor Training – Employees who perform DOT safety-sensitive functions must be provided educational materials that explain the DOT requirements. There are also training requirements for supervisors and other officials about reasonable suspicion and reasonable cause testing.
Removal of Covered Employees – An employee who refuses to test or tests positive on a DOT drug or alcohol test must be immediately removed from a DOT covered safety sensitive position.
Drug & Alcohol testing – Drug and alcohol testing is required for the DOT Drug & Alcohol Testing Program. Testing is required for: Pre-employment Random Reasonable Suspicion / Reasonable Cause Post-Accident Return-to-Duty and Follow-up.
Random Testing Program – As the DER you are responsible for compliance with the specific DOT agency random testing requirements. Each DOT Agency and the USCG has regulations that require certain employers to implement a random testing program
Post Accident Testing Requirements – Each DOT Agency and the USCG has regulations have specific criteria for required post accident testing. The supervisor at the scene of the accident/event should know the testing criteria and make a good faith effort decision to test or not test based on the information available at the time.
Substance Abuse Professional Process (SAP) – When an employee refuses to test or tests positive on a DOT drug or alcohol test must be immediately removed from a DOT covered safety sensitive position and given a list of qualified SAPs. The employee must before returning to the DOT covered safety sensitive position complete the SAP process which must include an initial evaluation, education or treatment plan and a follow up evaluation.
Record Keeping – The DER must maintain comprehensive records related to the DOT Drug & Alcohol Testing Program. That way, you can fully account for your program when you are inspected or audited by DOT Agencies or USCG. In addition, you will have the records that you might have to produce for court cases and arbitration hearings. Your service agents can maintain these documents for you.
DER & Service Agents
As an employer, you are ultimately responsible for compliance with the DOT drug and alcohol testing regulations; therefore, you must ensure that the service agent you use meets all the DOT required qualifications before using the service agent.
Service agents include collectors, STTs, BATs, laboratories, MROs, substance abuse professionals (SAP), C/TPAs, policy consultants, and trainers. The DER has a responsibility to hire qualified service agents to perform services for the employer in order for the employer to stay compliant with the DOT Drug & Alcohol Testing Program requirements.
Collector – A person who instructs and assists employees at a collection site, who receives and makes an initial inspection of the specimen provided by those employees, and who initiates and completes the CCF.
Screening Test Technician (STT) – A person who instructs and assists employees in the alcohol testing process and operates an ASD.
Breath Alcohol Technician (BAT) – A person who instructs and assists employees in the alcohol testing process and operates an evidential breath testing device.
Laboratory – Any U.S. laboratory certified by HHS under the National Laboratory Certification Program as meeting the minimum standards of Subpart C of the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs; or, in the case of foreign laboratories, a laboratory approved for participation by DOT.
Medical Review Officer (MRO) – A person who is a licensed physician and who is responsible for receiving and reviewing laboratory results generated by an employer’s drug testing program and evaluating medical explanations for certain drug test results.
Substance Abuse Professional (SAP) – A person who evaluates employees who have violated a DOT drug and alcohol regulation and makes recommendations concerning education, treatment, follow-up testing, and aftercare.
Consortium/Third-party administrator (C/TPA) – A service agent that provides or coordinates the provision of a variety of drug and alcohol testing services to employers. C/TPAs typically perform administrative tasks concerning the operation of the employers’ drug and alcohol testing programs. This may include groups of employers joining together as a consortium for participation in a random testing program.
Policy Consultants – an individual who assists an employer with development of a compliant DOT Drug & Alcohol Testing Policy.
Trainer – an individual who provides training for any of the services needed for an employer to comply with the regulations to maintain a compliant DOT Drug & Alcohol Testing Policy.
The DER has the responsibility to check out the service agents and monitor them to insure they are providing services in compliance with the regulations. DER’s should require service agents to provide documentation of their qualifications to perform services in compliance with DOT 49 CFR Part 40.
The DER remains responsible for compliance with all applicable requirements of the DOT drug and alcohol testing regulations, even when you use a service agent. If you violate DOT drug and alcohol testing regulations because a service agent has not provided services as our rules require, a DOT agency can subject you to sanctions. Your good faith use of a service agent is not a defense in an enforcement action initiated by a DOT agency in which your alleged noncompliance with a DOT agency drug and alcohol regulation may have resulted from the service agent’s conduct. As an employer, you must not permit a service agent to act as your DER.
To learn more about DOT compliance and how to operate properly as a DER, contact National Drug Screening. DER – Designated Employer Representative training programs are availabe.