What is a DER? We get asked this question often. The acronym DER stands for designated employer representative.
A DER is the person in charge of an employer’s drug and alcohol testing program and is often also called the drug and alcohol testing program manager. If you are the DER at your company, this article will help you understand the primary functions of a DER. We conduct several webinars each year for DER training. Many of the DERs who have undertaken our trainings have asked us to provide a summary overview about the role of a DER.
The United States Department of Transportation (DOT) coined the term DER in the DOT drug and alcohol testing regulations 49 CFR Part 40. As an industry we have used the same title for the person who oversees the drug and alcohol testing program in non-DOT companies. Again, this person is often called the drug and alcohol testing program manager. For the DOT, the DER function for a company cannot be outsourced; the DER must be a company employee.
Here are the main functions of a DER:
- Administers the Drug and Alcohol Testing Program
- Administers the Drug Free Workplace Policy
- Liaises with drug and alcohol testing service agents
- Receives every test and its result
- Performs the functions necessary according to the results of the tests and is authorized by the employer to take immediate action(s), including
- removing employees from safety-sensitive duties
- making necessary decisions in the testing and evaluation process
- receiving test results and other communications for the employer
The term service agent refers to vendors helping the employer with the drug testing program. This can include specimen collectors, breath alcohol technicians, laboratories, medical review officers (MROs), and substance abuse professionals (SAPs). A third-party administrator (TPA) often coordinates all of these services for an employer. The DOT calls this TPA a consortium/third party administrator (C/TPA).
A C/TPA is an important component in the process of drug and alcohol testing. The C/TPA’s assistance makes compliance easier because the members understand state and federal laws and can help to keep employers compliant. The TPA provides comprehensive services such as creating a safe workplace program for you and coordinating the drug and alcohol testing process.
A TPA or C/TPA can provide a wide variety of services for its employer clients. Here are some important services a TPA or C/TPA will likely perform for you:
- Review or set up a drug-free workplace policy
- Establish lab accounts and MRO review of drug-test results
- Train supervisors and provide employee education
- Coordinate random testing selections and compliance reporting
- Coordinate all testing needs such as lab accounts and MRO review of test results
- Troubleshoot any problems related to the testing of applicants or employees
Problems in Drug Testing
The DER must have knowledge of problems that occur with drug and alcohol testing and work with the service agents or the TPA to resolve these problems. Some of the issues that might occur include the following:
Specimen Temperature Out of Range
When the urine specimen collection is not in the appropriate temperature range, the collection is completed and sent to the lab, but this test result will come back canceled. A second urine specimen will be collected under direct observation, and this testing (2 of 2) will provide the official drug test result.
Direct Observation Collection
Based on certain situations (such as the specimen temperature out of range scenario), a same-sex individual goes into the restroom with the donor and observes the urination. For the DOT, all return-to-duty and all follow-up tests are under direct observation.
Shy Bladder Process
When the applicant or employee cannot provide a sufficient quantity of urine specimen for the lab testing, this leads to a shy bladder process in which the donor has up to three hours to provide a specimen and the opportunity to consume 40 ounces of fluids. The donor cannot leave the collection facility during the three hours or it is considered a refusal to test.
After three hours, this test is a refusal if sufficient quantity has not been provided, unless a licensed physician can document a medical condition. The DER works with the MRO to have a medical evaluation for this purpose. If the donor refuses the medical evaluation, the outcome is refusal to test.
Refusal to Test
A refusal to test is very serious and a violation of company policy and DOT regulations (if applicable). The consequences of a refusal are usually termination. For a DOT regulated company, the employee must be given a list of SAPs. The employee will need to go through a return-to-duty process with the SAP before coming back to a DOT safety-sensitive position. Tell your employees not to refuse; there is no turning back.
Refusal to Sign
The donor refusing to sign the drug-testing custody and control form (CCF) is not a refusal to test. The specimen is still sent to the lab for testing.
If the quantity of specimen received at the lab is not sufficient, the test is canceled. Labs require 45 ml for DOT specimens and 30 ml for non-DOT specimens.
If the tamper-evident seals on the urine specimen vials are broken, ripped or torn, or show any signs of tampering, the lab will cancel the test.
When a drug test result is returned invalid, this is not negative or positive. This means the lab could not come up with a conclusive result. An invalid result occurs when a urine sample might contain an unidentified interfering substance that prevents the laboratory from completing testing or obtaining a valid drug-test result. If this occurs, the MROs report as invalid and might require a new collection under direct observation.
When a drug test result is returned negative dilute, this is not a positive, refusal, or violation. The lab tested the specimen, and the result is negative, but the specimen has an unusual amount of water as compared to urine. You can accept this result as negative or require a retest. Treat all applicants the same, and treat all employees the same.
When a drug test result is returned positive dilute, you have a positive result. You are just being provided the information that in addition to being positive, the specimen has an unusual amount of water as compared to urine. This is a positive and should be treated as a positive.
Employee Is Positive: What’s Next?
One of the biggest responsibilities of a DER is to handle positive test results and refusals to test. What do you do next? Do you fire the employee? Here are the steps to follow:
- Remove employees from safety-sensitive duties.
- Possibly terminate or sign a second-chance agreement; check your company drug-free workplace policy.
- For the DOT, the applicant or the employee must be given a list of qualified SAPs or a SAP network service.
- No one who violates a DOT rule can perform safety-sensitive functions again until successfully completing the SAP return-to-duty process.
The DER Role is critical to an effective drug free workplace program and has the responsibility of knowing the company policy as well as any Federal or any state regulations that may affect the company. They also work hand-in-hand with service agents who can assist the DER in managing the program.
For DOT programs, a referral to a SAP is required. You can utilize a SAP referral service to help you provide a list of SAPs to the employee.
Additional Articles to Learn More about a DER
“What Is a DER or Designated Employer Representative?” www.nationaldrugscreening.com/faqs/dot-drug-alcohol-testing-compliance/what-is-a-der-or-designated-employer-representative
“DER Requirements—DOT” www.nationaldrugscreening.com/blogs/der-requirements-dot
Available DER Training
Online Training www.mydrugtesttraining.com