... US Coast Guard Drug & Alcohol Testing Policy - Positive Test Consequences ... Consequences of a Non-Negative Drug Test Result in the Maritime Industry
You own a Consortium/Third Party Administrator (C/TPA) company and have some clients that fall under the US Coast Guard chemical testing regulations (46 Code of Federal Regulations (CFR) Parts 4. 5, and 16.). All the crewmembers that are actively working on those vessels in commercial service are enrolled in the drug test program, including those that hold a credential and those that do not hold a credential.
Normally those crewmembers that are required to hold a credential are those that fill a position as listed on the Certificate of Inspection (COI). Those positions normally affect the safe operation and navigation of a commercial vessel.
There are other crewmembers on some vessels that normally do not hold a credential, e.g., cook(s), wait staff, card dealers on casino boats, etc. On smaller charter boats, some of the short-order cooks may be considered safety-sensitive and eligible to be enrolled in a testing program. There is no hard and fast rule on this and is considered to be at the discretion of the vessel master (owner). It is recommended that these personnel be enrolled in the drug test program. Not to enroll them could be a liability issue in the event of an incident., an example would be a man overboard scenario. In this instance the crewmember could state that he is not in a safety-sensitive position and not toss a life ring over the side to help the person to stay afloat. This may sound far-fetched but could happen.
During the course of the enrollment in the program, there are some non-negative tests for random, pre-employment and some reasonable cause tests. The controlled substances that were tested were marijuana and cocaine. Then there was a couple substituted and adulterated tests along with a test refusal (i.e., failed to report to the collection site in a timely manner). All of these test results are reportable to Coast Guard. At the present time, marine employers are required to report to the Officer in Charge Marine Investigations (OCMI) all positive tests on credentialed mariners. Marine employers can report to the OCMI, non-negative test results on non-credentialed mariners that are employed by them.
As expected when there is use of a controlled substance with a positive drug test as evidence there are consequences that accompany that behavior. The consequences will vary by the credential status of the mariner but the first consequence is removal from all safety-sensitive positions that affect the safe operation of the vessel.
If the result is adulterated or a substituted test result, the consequences are the same for a for a positive drug test. If the mariner refuses to take the drug test as directed by the marine employer, that is also a test violation and with removal from all safety-sensitive positions. It makes no difference is the mariner holds a credential or does not hold a credential. The consequences are the same in all instances as per regulation.
It is the decision of the employer to make regarding continued employment in a non-safety-sensitive position. Some employers may find a place to employ mariners and others may not.
Are there other consequences and what are they?
Consequences for credentialed mariners: As has been previously stated, the marine employer is obligated to report a drug test violation to the OCMI. At that point several things will occur.
- The Investigating Officer (IO) assigned to the case will review the letter that informed the OCMI of the test violation. That letter at a minimum should include the following information: Name of the mariner; Mariner identification number Date of the test; Test result Name and address of the Substance Abuse Mental Health Services Administration (SAMHSA) Accredited laboratory that performed the analysis, Name contact information of the Medical Review Officer (MRO); andFederal Chain of Custody Form (CCF) number.
- After review by the IO of the letter and the accompanying Federal CCF (not required to be sent but will be requested by the IO. The IO will then request other documents to be sent to facilitate the investigation. This may include but is not limited to the MRO with documentation that the MRO is a qualified MRO. A copy of the Federal CCF Copy 2 signed by the MRO will be requested from the MRO. The other important documentation that will be obtained is for the collection site and the collector. The collector whose name and signature appears on the CCF will be requested to submit documentation that they were Department of Transportation (DOT) qualified. The IO can also request documentation of any collector retraining. All requested documents should be handled expedient manner.
- That does not complete the document request by the IO. The IO can also request the 49 CFR part 40.25 drug and alcohol history check from the marine employer. That should be provide forthwith for review. If there is a prior drug test violation, then the IO can request documentation from the Substance Abuse Professional (SAP) in regards to completion of the SAP recommendations. This can include all Return-to-Duty and Follow-Up drug tests.
- There are the potential consequences involved with providing the requested documentation. If the collector is not DOT qualified and they collected the specimen, that can leave the collection facility and the collector open to a Public Interest Exclusion (PIE) charge, something that no collection facility would welcome.
- If there was a previous non-negative test for the mariner and the SAP did not do proper follow up, the SAP can face a potential PIE case. A proper follow up would be to ensure that the all the Follow-Up tests were done as required. If they were not done, is there SAP documentation was to why the tests were not conducted as required by the SAP. No documentation as to why the tests were not conducted could potentially lead to a PIE case.
- If the SAP has the documentation and the DOT regulated employer did not do the tests as required by the SAP, then the employer would be liable. If the employee did not do the tests as required, then what action did the employer take and furthermore, is the employee still employed? These are all consequences and ramifications of not having a fully compliant program.
The consequences for a non-credentialed crewmember are as listed:
- Removal from all safety-sensitive positions. Future employment status to be determined by the employer but most likely will be employment termination.
- There is no required report to the IO but it is recommended that one be done. There have been instances where a crewmember did have a credential but did not disclose that fact to the marine employer. The same letter format can be used as for a credentialed crewmember to make this report.
- The IO will make a check of the National Maritime Center (NMC) database to verify if this crewmember has had a previous drug test violation. During this process, any entry will be made and this crewmember will be put into the NMC database with the reason why this entry is being made. The record will then be locked by NMC.
- Locking of the record will prevent the non-credentialed mariner from obtaining a credential until the requirements to unlock the record have been met.
- To unlock the record, the crewmember will have to complete a drug rehabilitation program. Proof of that completion can be presented to NMC. The IO can present that evidence and request that they record.to be unlocked.
- The non-credentialed crewmember will have to complete the requirements of the SAP in order to go back to work.
There is are some additional requirements that apply to both credentialed and non-credentialed crewmembers. These requirements are embodied in 46 CFR Part 16.201 (e) and (f) as shown below:
(e) An individual who has failed a required chemical test for dangerous drugs may not be re-employed aboard a vessel until the requirements of paragraph (f) of this section and 46 CFR Part 5, if applicable, have been satisfied.
(f) Before an individual who has failed a required chemical test for dangerous drugs may return to work aboard a vessel, the MRO must determine that the individual is drug-free and the risk of subsequent use of dangerous drugs by that person is sufficiently low to justify his or her return to work. In addition, the individual must agree to be subject to increased unannounced testing—
(1) For a minimum of six (6) tests in the first year after the individual returns to work as required in 49 CFR part 40; and
(2) For any additional period as determined by the MRO up to a total of 60 months.
To correctly interpret the above the word “individual” applies to all crewmembers credentialed and non-credentialed.
The MRO role in this process is very simple but yet the MRO has to do a letter for the individual. To do this letter, the MRO will usually have their requirements that have to be met prior to doing this letter.
The following sentence is very applicable in this regards: “the MRO must determine that the individual is drug-free and the risk of subsequent use of dangerous drugs by that person is sufficiently low to justify his or her return to work.”
The applicability of this sentence is highly important! There is implicit on the MRO tremendous liability when this sentence is used unless certain precautions and requirements are taken. Generally, most MROs will require that the SAP requirements be met and will refer the mariner to see the SAP. Usually, it will be the SAP that has the marine employer referred the individual to see.
The MRO will want to see that the initial requirements of the SAP have been successfully completed and usually have a discussion with the SAP prior to doing the letter.
Then there is the requirement for the six tests which have to be met. These tests can be done concurrently with the SAP ordered tests with a test meeting both the SAP and regulatory requirements.
When the MRO feels comfortable with the SAP requirements having been met, then the MRO will do the letter. The bottom line is that the addiction needs of the individual have been addressed and there is a low risk to use controlled substances in the future.
IMPORTANT: There have been instances where mariners have gone on their own to get treatment at their own expense without consulting with the MRO or the SAP first. Oftentimes what happens is that the MRO will not accept that treatment program as the treatment program did not meet the addiction needs of the individual.
The next article in this series will discuss Suspension and Revocation Process of a mariner’s credential.
By Robert C. Schoening
Robert Schoening is well renowned for his knowledge and influence in the drug-testing arena. As the Drug and Alcohol Program Manager for the US Coast Guard (December 2001-March 2013) he developed and managed a successful drug testing program for the marine industry nationwide and internationally. During this time he developed and implemented a new compliance audit checklist as well as the writing and publishing a new Marine Employers Guidebook for Drug Testing. He is also the author of the federal regulation commonly known as the two-hour alcohol testing for maritime incidents.