Consequences for a Credentialed Mariner with a Non-Negative Test Result – Part 4
US Coast Guard Drug & Alcohol Drug Testing – Part 4 of 4 Part Series
This article will explore the consequences of the second option that is available to the credentialed mariner. Again, the consequences remain the same and will range at a minimum removal from safety-sensitive employment to loss of the credential.
Option 2: The mariner chooses the Settlement Agreement path. By electing this option, the mariner is admitting the submitted specimen was indeed a non-negative drug test and was positive for a controlled substance. In many instances with an adulterated or substituted test result, the Settlement Agreement will not be offered as it can be interpreted as an attempt to as a deliberate act to try to “beat the test”.
The Investigating Officer (IO) after receiving the report of the non-negative drug test contacts the mariner and asks the mariner to pay him a visit at the IO’s office. The IO relates to him why this request.is being made and requests that the mariner bring his credential.
The mariner shows up at the appointed time. The test result is relayed to the mariner. He admits that it is his test result with an explanation that he made a mistake and did smoke a little “weed”. The mariner gives the IO the credential.
The IO explains the charge of misconduct to him and explains the consequences. The first consequence is going to a hearing in front of the Administrative Law Judge (ALJ). The IO explains what he would have to prove that it was not his test in front of the ALJ. The IO further explains that if he cannot prove his case to the ALJ, that the credential will be revoked. The IO further explains the Settlement Agreement to the mariner and what those requirements are that have to be completed. It is further explained that if any of the requirements are not successfully completed, that the credential will be revoked. The mariner is informed that the ALJ has to sign the Settlement Agreement.
The mariner is told that the credential is revoked but the revocation is suspended pending successful completion of the conditions contained in the Settlement Agreement. The mariner states that he understands and that the terms and conditions contained in the Settlement Agreement are to assist him in returning to the use of controlled substances and elects to pursue the Settlement Agreement route.
The terms and conditions in the Settlement Agreement are:
- Sign the Settlement Agreement.
- Within 30 days of signing the Settlement Agreement, enter a treatment program to get treatment for his addiction. NOTE: The treatment program should be one that is recommended by either the Medical Review Officer (MRO) or the Substance Abuse Professional (SAP). The mariner should be advised by the IO to enroll in a treatment recommended by either the MRO or SAP. The treatment program can be in-patient or an out-patient program but it has to meet the addiction needs of the mariner.
- Successfully complete the treatment program within 90 days. If it cannot be completed within 90 days, inform the IO with an estimated date of completion.
- Upon successful completion of the treatment program, inform the IO and enroll in an out-patient program like Alcoholics Anonymous (AA) or Narcotics Anonymous (NA). Attendance is required with documentation to be presented to the IO showing weekly attendance at the out-patient program. This attendance is required for 12 months.
- Take and pass 12 randomized DOT/USCG drug tests. NOTE: A Consortium/Third Party Administrator (C/TPA) or the MRO can assist in getting these tests accomplished.
It is incumbent upon the mariner to successfully complete all of the above tasks and to submit the completion documentation to the IO.
The Settlement Agreement meets the three criteria for treatment and which many MROs will want to see before issuing a letter to a mariner. Those three criteria are:
- Have an intake assessment by a qualified treatment or addiction specialist/counselor.
- Enroll in a treatment program that meets the addiction needs of the individual.
- Enroll and participate in an effective after care program. The purpose of the aftercare program is to assist the individual change their lifestyle and environment to one that one that does not involve the use of controlled substances.
The status of the credential is considered revoked but the revocation is suspended. If the mariner fails to successfully complete any of the above terms, the credential is permanently revoked.
While the mariner cannot work in a credentialed position on an inspected vessel until the credential has been approved by the ALJ to be returned, there is an option open to the mariner.
The option is that the mariner once they have completed in the initial treatment program, they can go to work on a vessel in commercial service in a position that does not require the holding of a credential. There are requirements to be fulfilled for this to happen. They are:
- Fulfill the requirements of the SAP.
- Take and pass a Return to Work drug test.
- Obtain a letter from the MRO stating that they are drug-free and at a low risk to use drugs in the future.
- Agree to be Follow-Up tested as required by the SAP.
The SAP required Follow-Up tests and the 12 tests as required by the Settlement Agreement can run concurrently with one test fulfilling both of the requirements. NOTE: I made this determination for the tests to count for both test purposes when I was the Coast Guard Program Manager.
The reasoning is that all of the tests are random or done on a randomized basis. All of the tests have to be done in accordance with 49 CFR part 40 procedures. All of the tests have to be negative.
Once all the requirements have been satisfied, reviewed by the IO and that all of the requirements meet what is stated in the Settlement Agreement, the whole package is submitted to the ALJ.
If the ALJ is satisfied that the mariner has met the requirements of the Settlement Agreement, the revocation order is lifted with the credential being returned to the mariner.
The mariner is informed that if there is another non-negative test result, the credential will be revoked.
If there are questions about this process, please contact the author
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.