Skip Navigation Links.
Online Support available
Monday through Friday
7:30 a.m. - 5:30 p.m.
Click here to get help!
OhioBWC - Basics: (Policy library) - File

DFSP

 

Policy Name:

Drug-Free Safety Program (DFSP)

Policy #:

EP-04-02

Code/Rule Reference

ORC 4123.29, 4123.34, 153.03. OAC 4123-17-58; 4123-17-74, 4123-17-74 Appendices A, B, and C; 4123-17-75, including Appendix

Effective Date:

July 1, 2015

Origin:

Employer Policy

Supersedes:

Drug-Free Safety Program policy effective September 4, 2014.

History:

Revised October 18, 2016; May 5, 2015; February 17, 2015; July 6, 2012; September 22, 2011. New policy issued July 8, 2010.

Review Date:

July 1, 2020

 

 

I.       Policy Purpose

 

The Ohio Bureau of Workers’ Compensation (BWC) will offer a Drug-Free Safety Program (DFSP). Employers that participate in the program may receive a premium incentive rebate. BWC will administer the DFSP in accordance with the applicable laws and rules.

 

II.     Applicability

 

This policy applies to BWC Employer Programs, BWC Field Operations, Division of Safety & Hygiene (DSH), employers, and third party administrators (TPAs).

 

III.    Definitions

A.     Client employer: A sole proprietor, partnership, association, limited liability company, or corporation that enters into a PEO agreement and is assigned shared employees by the PEO. Client employer does not mean a non complying employer as defined in OAC 4123-14-01. ORC 4125.01(B)

B.     Comparable program: A program referred to in ORC 153.03. A drug-free workplace program with elements that are essentially similar to BWC’s DFSP, except for the safety process requirements.

C.    Contracting authority: Any state agency or other state instrumentality that is authorized to award a public improvement contract. ORC 153.03(A)(1)

D.    Drug-Free Safety Program (DFSP): BWC’s loss prevention and safety program to prevent and reduce the risk of workplace accidents and injuries attributed to the use and abuse of alcohol and other drugs, including prescription, over-the-counter, and illegal drugs. DFSP replaced the Drug-Free Workplace Program (DFWP) effective July 1, 2010.

E.     First year participant: An employer that applied for the program for the first time and is in its initial program period.

F.     Initial program period: The first full year an employer participates in the DFSP. There can be only one “initial program period” per policy number. An employer returning to DFSP after a period of non-participation will not be considered in its initial program period.

G.    Professional Employer Organization (PEO): A sole proprietor, partnership, association, limited liability company, or corporation that enters into an agreement with one or more client employers for the purpose of co-employing all or part of the client employer’s workforce at the client employer’s work site. PEO does not include a temporary service agency. ORC 4125.01(D)

H.    Program period: The policy year an employer participates in the DFSP; except for a private employer that participates in the DFSP starting January 1, 2014, the program period is January 1, 2014, to June 30, 2015.

I.       Public improvement contract: Any contract that is financed in whole or in part with money appropriated by the general assembly or that is financed in any manner by a contracting authority, and that is awarded by a contracting authority for the construction, alteration, or repair of any public building, highway, or other public improvement. ORC 153.03(A)(9)

J.      Pure premium: The employer’s calculated premiums before any administrative costs or Disabled Workers’ Relief Fund (DWRF) assessments are added.

K.     Qualified substance abuse professional: A qualified professional who holds one or more of the following substance credentials:

1.     Certified employee assistance professional (CEAP).

2.     Certified medical review officers (MRO).

3.     DARE officer with at least three years of experience in the past five years.

4.     Licensed chemical dependency counselor (LCDC II).

5.     Licensed independent chemical dependency counselor (LICDC).

6.     Licensed practical nurse (LPN), Bachelor of Science in nursing (BSN) and Master of Science in nursing (MSN) with a specialization in substance abuse.

7.     Licensed professional counselor (e.g. psychologist, social worker).

8.     Ohio certified prevention specialist (OCPS I & II).

9.     Substance abuse professional (SAP).

10.  Substance Abuse Professional Administrator Association (SAPAA) certified.

11.  A person with equivalent experience in the substance field within the past five years as evaluated by BWC.

12.  Any comparable credential within the substance field that is determined equivalent by BWC.

L.     Safety Management Self-Assessment (SH-26): The SH-26 is intended to help employers evaluate their safety and claims management systems and identify opportunities for improvement. The form contains eleven (11) safety and health categories considered critical to an effective safety and health process. The person(s) in the organization most familiar with the current safety and claims management process should complete the form.

M.    Safety-sensitive position or function: Any job, position or work-related function or job task designated as such by the employer, which through the nature of the activity could be dangerous to the physical well-being of or jeopardize the security of the employee, co-workers, customers, or the general public through a lapse in attention or judgment.

N.    Supervisor: An employee who supervises others in the performance of their jobs, has the authority or responsibility to initiate reasonable suspicion testing and recommend or perform hiring or firing procedures.

IV.   Policy

A.     Eligibility criteria:

1.     To qualify for benefits the employer must, as of the application deadline:

a.     Be current with respect to all payments due BWC as defined in OAC 4123-17-14(A)(1)(b).

b.     Be current on the payment schedule of any part-pay agreement into which it has entered for payment of premiums or assessment obligations.

c.      Not have cumulative lapses in workers’ compensation coverage in excess of forty (40) days within the prior twelve (12) months.

d.     Be in an active policy status. “Active policy status” does not include an employer with a coverage status of “no coverage” or “lapsed”.

e.     The employer must timely report actual payroll for the preceding policy year and pay any premium due upon reconciliation of estimated premium and actual premium. An employer will be deemed to have met this requirement if BWC receives the payroll report and the employer pays premium associated with such report before the expiration of any grace period. See the Payroll True-Up policy for additional information.

2.     The following employers are not eligible for DFSP benefits, but may receive technical assistance from BWC:

a.     State agencies.

b.     Self-insuring employers. However, a self-insuring employer may enroll in the Comparable program in order to work, bid, provide labor service, or supervise workers on state construction sites.

3.     A PEO is not eligible to receive DFSP benefits unless the PEO and each of the PEO’s clients meet all eligibility and program requirements.

4.     An employer BWC determines to be ineligible for the DFSP may appeal the decision to the BWC Adjudicating Committee, per ORC 4123.291.

5.     An employer found ineligible for the DFSP may reapply for a subsequent program period.

B.     Application Requirements / BWC evaluation of application.

1.     An employer must file an Application for Drug-Free Safety Program (U-140) to initially apply for the program. Employers that apply for DFSP after a period of non-participation must also apply by using a U-140. BWC will accept applications online and via mail and fax.

2.     Application deadlines (see OAC 4123-17-74 and appendices):

a.     For private employers (PA) applications must be filed by the last business day of May prior to the July 1 to June 30 program period.

b.     For public employer – taxing districts (PEC) applications must be filed by the last business day of November prior to the January 1 to December 31 program period.

3.     An employer applying for renewal in DFSP must utilize the annual report and must identify the program/level that it wishes to participate in for the subsequent program period. See section IV(D).

4.     An employer must apply annually to participate in the DFSP. Renewal is not automatic.

C.    Operation of Program.

1.     An employer has three (3) options for participation in DFSP: Basic level, Advanced level, and Comparable program.

a.     There is no maximum number of years that an employer can participate in DFSP.

b.     An employer may move up or down from one level to the next each program period, or opt out of the program and then re-apply.

c.      An employer is not required to participate at the Basic level prior to participating at the Advanced level.

2.     Basic level. To implement a Basic DFSP level, the employer must implement the program elements below by meeting the requirements and timeframes for each element.

a.     Safety:

i.       The employer must complete a Safety Management Self-Assessment (SH-26) within thirty (30) days of the start of the program period. An individual SH-26:

a)     Is valid for twelve (12) months; and,

b)     May be used by BWC when evaluating all program applications that require an SH-26.

ii.      The employer must ensure each supervisor completes accident-analysis training within thirty (30) days of the start of the initial program period.

a)     All new supervisors must complete the training within sixty (60) days of becoming a supervisor.

b)     This is a one-time only training requirement if the employer has no break in participation.

iii.     The employer must submit an online Accident Report (DFSP-1) for all allowed BWC claims within thirty (30) days of an accident or becoming aware of the accident.

b.     Policy:

i.       The employer must have a written DFSP policy in place within ninety (90) days of the start of the initial program period outlining the details of its DFSP program. First year participants must provide a copy of the DFSP policy to BWC with the DFSP Annual Report. The employer’s written DFSP policy must contain the following elements:

a)     Provide a full and fair disclosure of the reasons for implementing the policy.

b)     Program provisions and procedures.

c)     Responsibilities and rights of all employees subject to the provisions and procedures of the policy.

d)     Consequences of an employee’s failure to comply with the policy.

e)     The DFSP applies to all employees.

f)       A written commitment to employee health and support for employees seeking help with a substance abuse problem.

ii.      Employers are encouraged to have the policy reviewed by knowledgeable legal counsel prior to implementing their policy.

iii.     Employers participating in the Basic level may terminate an employee on the first positive test result.

c.      Employee education: The employer must provide each employee and supervisor with one (1) hour of initial training and one (1) hour of refresher training annually.

i.       BWC does not require specific content for employee and supervisor education. However, BWC encourages the employer to have educational content that:

a)     Promotes awareness and understanding of the content of the employer’s written DFSP policy.

b)     Educates about the safety, security, and health risks, as well as the declining productivity, associated with the use of alcohol and other drugs in the workplace.

ii.      Education requirements.

a)     First year participants must complete education requirements within the first four (4) months of the initial program period start date.

b)     Refresher training must be completed by the due date for the DFSP Annual Report.

c)     New employees must receive training within eight (8) weeks of their date of hire.

d)     A qualified substance abuse professional must conduct the educational sessions or be involved in designing required content and be available to answer questions the presenter cannot answer.

e)     The employer must submit a sign-in sheet from an education session held during the program period and one (1) invoice from an education service vendor with the DFSP Annual Report each year.

d.     Supervisor skill-building training: First year participants must provide two (2) hours of initial supervisor skill-building training within four (4) months of the initial program period start date. Employers must provide one (1) hour of annual refresher skill-building training for all supervisors in support of the employer’s written DFSP policy and procedures.

i.       Employers must use a trainer who is a qualified substance abuse professional.

ii.      New supervisors should receive the initial two (2) hour skill-building training within eight (8) weeks of becoming a supervisor.

iii.     The content of supervisor training must include, at minimum:

a)     Behavioral observation aimed at detecting when an employee may be in violation of the employer’s DFSP policy and intervention before there is an incident/accident/injury.

b)     Documentation of the behavior that suggests reasonable suspicion and justifies an intervention.

c)     Appropriate and professional confrontation of the behavior that suggests a possible violation of the employer’s DFSP policy before there is an incident/accident/injury.

d)     How to make referrals for testing.

e)     How to make a referral for assistance, including a substance assessment.

iv.    The employer must submit a sign-in sheet from a supervisor training session held during the program period and one invoice from a training service vendor with the DFSP Annual Report each year.

e.     Drug and alcohol testing: The DFSP program must include alcohol and other drug testing which conforms to the federal testing model promulgated by the United States Department of Health and Human Services (HHS). The employer must implement and pay for testing required by DFSP participation, but is not required to pay for re-testing requested by an employee and follow-up testing. Requirements for drug and alcohol testing include, but are not limited to, the following:

i.       Employers participating in BWC’s Drug-Free Safety Program will, at a minimum, utilize the 5-panel plus Ecstasy drug test protocol.  Employers will pay for all testing except as noted below. Employees subject to federal testing regulations (e.g. commercial driver’s license - CDLs) will follow federal requirements whenever testing occurs in relationship to federal regulations.

ii.      Testing procedures must be in place no later than ninety (90) days from the start of the program period.

iii.     Federal cut-off levels for individual drugs will apply except for additional drugs where the cut-off levels for testing positive are established by a laboratory certified by the Substance Abuse and Mental Health Services Administration, an operational unit of HHS.

iv.    Alcohol cut-off level will be set by employer, based on its individual industry needs and hazards. BWC recommends 0.04 Blood Alcohol Concentration (BAC) or above as the cut-off level for a positive test.

v.      Testing requirements:

a)     One hundred percent (100%) pre-employment drug testing (or new hire drug testing or a combination of the two) for PA employers and one hundred percent (100%) of safety-sensitive positions for PEC employers.

b)     Reasonable suspicion alcohol and other drug testing as appropriate.

c)     Post-accident alcohol and other drug testing for anyone who may have caused or contributed to an accident following an investigation for PA employers and, with documentation of reasonable suspicion following an accident, for PEC employers. Exception: An employer does not have to conduct a post-accident drug test if all of the following conditions exist:

i)       The accident resulted in no injury or a minor injury, even when off-site medical attention was required.

ii)      There was no violation of work rules.

iii)    An accident investigation determined there was no reasonable suspicion related to the accident.

iv)    The accident is considered normal in relationship to the job functions of the injured employee.

d)     Return-to-duty alcohol and other drug testing are required for employees who are given a second chance after a positive test. The employer’s written DFSP policy should state who will pay for these tests.

e)     Follow-up (subsequent to return-to-duty) alcohol and other drug testing for employees who are allowed to retain employment following a positive test and return to duty. Follow-up testing must consist of at least three (3) unannounced tests over the following year from the return-to-duty date.

f)       Use of a certified laboratory, collection site, and a certified Medical Review Officer (MRO).

g)     Report testing information as required on the DFSP Annual Report and provide copies of invoices from the employer’s collection site for testing services.

f.       Employee assistance: Within ninety (90) days of the start of the program period, employers must provide a list of local employee assistance resources for employees who request help and employees who test positive for alcohol or drugs.

3.     Advanced level. To implement an Advanced DFSP level, the employer must meet all of the requirements of a Basic DFSP level and implement the program elements and requirements below.

a.     The employer must ensure its written DFSP policy clearly reflects how random drug testing will be implemented and how additional employee assistance will be provided.

i.       PA employers must conduct random drug testing of fifteen percent (15%) or more of their total average annual workforce during the program period.

ii.      PEC employers must conduct random drug testing of fifteen percent (15%) or more of their safety-sensitive workforce during the program period.

iii.     Employers subject to federal testing regulations will follow federal requirements for random drug testing. Employers may find additional information at the U.S. Department of Labor website.

iv.    Consortium.

a)     PA employers may enter into a consortium with a vendor for the purposes of pooling employees from multiple employers for random drug testing.  The consortium will then conduct random drug tests on fifteen percent (15%) of all employees in the pool.

b)     PEC employers may also enter into a consortium for the purposes of random drug testing of safety-sensitive employees. The consortium will then conduct random drug tests on fifteen percent (15%) of all employees in the pool.

b.     Employee assistance:

i.       The employer must establish a relationship with an employee assistance professional for employees who are referred.

ii.      The employer must pay the costs of a substance assessment of an employee who:

a)     Tests positive, or;

b)     Comes forward voluntarily to indicate he or she has a substance problem, or;

c)     Is referred by a supervisor.

iii.     Nothing in this policy requires an employer to pay for treatment of an alcohol or drug problem nor for follow-up testing after the assessment or the completion of treatment.

iv.    There may be circumstances that may justify a shared cost for an assessment related to collective bargaining agreements or employee-negotiated benefits (e.g. a required health care co-pay).

c.      The employer must submit a Drug-Free Safety Program – Safety Action Plan (DFSP-5) based on the results of the SH-26 within sixty (60) days of the start of the program period. The DFSP-5 outlines specific safety process improvements the employer intends to implement during the remainder of the program period.

d.     Employee termination.

i.       Advanced level employers commit to not terminate any employee who:

a)     Tests positive for the first time, or;

b)     Comes forward voluntarily to indicate he or she has a substance problem, or;

c)     Is referred by a supervisor for an assessment.

ii.      Employees may be terminated for other causes (e.g. violations of other company rules) in accordance with company policy.  BWC has no role in whether an employee is or is not terminated but, rather, determines whether termination meets the Advanced Level DFSP requirements for continued participation in the program.

iii.     Multi-state employers with company-wide policies specifying termination on first positive drug/alcohol test may be allowed to terminate on first positive provided prior approval has been received from BWC.  There are other situations, such as employers that operate a safety-sensitive business that BWC may consider in determining whether a termination on a first positive meets the Advanced Level DFSP requirements for continued participation in the program.

e.     An employer in the Advanced Level may voluntarily move to the Basic Level during the program period. If BWC disqualifies an employer from the Advanced Level due to inadequate random drug testing or termination on first positive, the employer may continue to participate at the Basic Level. In both cases, the employer must meet all Basic Level requirements. The employer will only be eligible for the Basic Level bonus.

4.     Comparable program:

a.     Self-insuring and state-fund employers that wish to have a Comparable program must submit a U-140 application.

b.     ORC 153.03 states that a public improvement contractor or subcontractor must be enrolled in, and be in good standing with, BWC’s DFSP or a Comparable program approved by BWC.

c.      Prior to providing labor services or on-site supervision of such labor services under a public improvement contract, employers participating in the Comparable program must:

i.       Develop, implement, and provide to all employees a written substance use policy that conveys full and fair disclosure of the employer’s expectations that no employee be at work with alcohol or drugs in the employee’s system and specifies the consequences of violating the policy.

ii.      Complete all employee education by requiring all employees to receive at least one (1) hour of training that increases awareness of and attempts to deter substance abuse and supplies information about employee assistance to deal with substance abuse problems.

iii.     Require all supervisors to receive one additional hour of training in skill building to teach each supervisor how to observe and document employee behavior and intervene when reasonable suspicion exists of substance abuse.

iv.    Require all supervisors and employees to receive the training described in IV.C.4.c.ii above before a public improvement contract commences or during the term of the public improvement contract.

v.      See ORC 153.03(E) regarding additional requirements of the public improvement contract.

5.     Application of bonus.

a.     An employer completing program requirements may be eligible for the bonus amount outlined in the appendix to OAC 4123-17-75.:

i.       Four percent (4%) times the employer’s pure premium cost for the program period if the employer is in the Basic level.

ii.      Seven percent (7%) times the employer’s pure premium for the program period if the employer is in the Advanced level.

iii.     No bonus is offered for a Comparable program.

b.     To qualify for the bonus, the employer must:

i.       Have coverage that is in an active policy status at the time of calculation.

ii.      Timely report actual payroll for the preceding policy year and pay any premium due upon reconciliation of estimated premium and actual premium. An employer will be deemed to have met this requirement if BWC receives the payroll report and the employer pays premium associated with such report before the expiration of any grace period.

c.      The DFSP bonus and the discounts earned through participation in other Destination: Excellence programs cannot reduce an employer’s premium due below the amount of the minimum administrative charge as set forth in OAC 4123-17-26.

d.     BWC will not issue a rebate to an employer paying the minimum administrative charge for the applicable program period.

e.     Rate adjustments made to an employer’s account after the issuance of the bonus may result in recalculation of the bonus.

6.     An employer participating in the DFSP may participate in other compatible BWC rating and discount programs. Employer program compatibility is outlined in OAC 4123-17-74, Appendix C.

7.     Any private employer with an active BWC policy may enroll in the DFSP without receiving a bonus (Comparable program) in order to be placed on BWC’s database of employers eligible to bid on state-funded construction projects.

8.     BWC may offer DFSP grants to offset, in whole or in part, the costs incurred by employers implementing a Basic or Advanced DFSP program and meeting the DFSP grant program’s eligibility requirements. See the policy titled Drug-Free Safety Program (DFSP) Safety Grants for additional information.

9.     First year participants returning after a period of non-participation must complete all the program requirements for a first year participant, with the following exception: Supervisors that previously completed the initial two hour supervisor training requirements are not required to repeat the training if the employer’s break in participation was one year or less. All new supervisors must complete the training.

10.  BWC may accept education and training requirements from a first year participant that are completed up to six (6) months prior, or up to four (4) months subsequent, to the initial program period start date.

11.  BWC partners with Ohio Mental Health and Addiction Services (OMHAS) to provide a vendor list of companies and individuals qualified to supply services related to a drug-free workplace.

D.    Annual report to BWC and renewal requirements.

1.     Employers must submit an annual progress report to BWC using either DFSP Annual Report – Basic and Advanced Levels (DFSP-3) or DFSP Annual Report – Comparable Program Only (DFSP-4).

a.     For the July 1 program period, the annual report is due by the last business day in March.

b.     For the January 1 program period, the annual report is due by the last business day in September.

c.      BWC will begin accepting online submissions of the annual report one (1) month before the deadline.

2.     Failure to submit the annual progress report to BWC by the established deadline will result in removal of the employer from the DFSP.

3.     In order to qualify for renewal, the employer must have implemented all the requirements of its Basic or Advanced level DFSP.

4.     The employer must use the annual report to apply for renewal. Renewal is not automatic. The employer will indicate the program level desired for the following program period on the annual report. The employer may also use the annual report to decline participation for the next program period.

5.     The annual report must detail the employer’s program implementation and report annual statistics as required by BWC.

a.     The employer must provide any follow-up documentation and maintain on-site statistics as required by BWC.

b.     The annual report and any other information submitted by the employer in meeting DFSP requirements will be considered part of the annual statement submitted to BWC as required by ORC 4123.26.

c.      BWC shall hold the annual report and any other documentation submitted by the employer to meet DFSP requirements as confidential, pursuant to ORC 4123.27.

6.     A PEO participating in DFSP must submit a client list to BWC by the annual report filing deadline.

a.     The list must include all client employers with whom the PEO had an agreement, as of thirty (30) days prior to the annual report deadline.

b.     The list must include each client employer’s name, address, federal tax identification number, BWC risk number; and the amount of payroll, listed by manual classification code, reported by the PEO on behalf of each client employer.

c.      If BWC determines the PEO manipulated the client list, the PEO will be ineligible to receive DFSP benefits.

d.     BWC will hold the client list as confidential pursuant to ORC 4125.05.

E.     Stipulations.

1.     Participation in the DFSP is voluntary.

2.     Nothing in this policy shall:

a.     Affect, modify, or amend any collective bargaining agreement.

b.     Alter the rights or obligations of an employer, employee, client employer, PEO, or shared employee under applicable federal or state law.

3.     If an employer has a collective bargaining agreement that prevents implementation of program requirements, that employer is excluded from participation in the DFSP.

F.     Removal / exit from program.

1.     BWC may remove an employer from DFSP for failure to fully implement a DFSP in compliance with the program level requirements.

a.     BWC will send written notice to the employer of removal from the program.

b.     An employer removed by BWC from DFSP may reapply for the next program period.

c.      BWC may deny an employer’s application for DFSP based on the circumstances of the employer’s prior participation.

2.     When an employer becomes aware that it is unable to fully implement its DFSP by the required implementation date, the employer must notify BWC immediately.

3.     An employer may voluntarily withdraw from the program during the program period by submitting written correspondence to BWC requesting removal. If the employer wishes to participate in a future program period, it must file a new U-140.

4.     BWC will remove an employer from the program who fails to report actual payroll for the preceding policy year and pay any premium due upon reconciliation of estimated premium with actual premium no later than the due date as set forth in OAC 4123-17-14. BWC will not remove an employer if BWC receives the payroll report and associated premium prior to the expiration of any grace period as set forth in OAC 4123-17-16.

5.     An employer who voluntarily withdraws or is removed from the program will not be eligible for a bonus for that program period.

G.    Resolution of complaints.

1.     Employer complaints should be processed under the General Employer Complaint Policy.

2.     Specific extenuating circumstances that apply to the DFSP:

a.     Circumstance involving a lifetime one-time exception to filing a DFSP Annual Progress Report after the reporting deadline.

i.       The employer has failed to submit the annual report of progress by the established deadline date, or BWC has no record of the report. BWC may resolve the employer’s complaint by accepting the late progress report and required documents no later than thirty (30) days from the date BWC notified the employer it was disqualified from the program. BWC notice may include either the monthly statement or program disqualification letter. The late submission may only be accepted if no previous late exceptions have been granted to the employer for this program.

ii.      Supporting documentation: BWC will review the annual report and required documents to determine if the employer was fully compliant with requirements for the DFSP year in question. Based on the review, BWC will recommend approval or disqualification from the DFSP.

iii.     If an employer submits its annual report online prior to the deadline but does not also submit the required documents as specified on the annual report checklist, the employer shall be considered as having timely submitted the required report and will not be failed initially. The employer will not be required to request a one-time exception. However, the employer must provide the required documentation within five (5) business days of notice from BWC that the documentation must be submitted. If required documentation is not submitted after five (5) days, the annual progress report will be considered late.

b.     Circumstance involving an employer requesting to change program levels during the program period.

i.       BWC will review a request by an employer to change from Advanced Level to Basic Level or vice-versa, to determine if all program requirements can be met by the program deadlines. If program deadlines cannot be met, BWC will deny the employer’s request.

ii.      Example: An employer requests a change from Basic Level to Advanced Level ninety (90) days into the program period. The DFSP requires an Advanced Level employer to complete a safety action plan within sixty (60) days of the start of the program period. If the employer did complete a safety action plan within the first sixty (60) days of the program period, the change will be granted. If the requirement was not met, the request will be denied. Once a deadline is passed, the employer cannot go back and meet that specific requirement.

iii.     Supporting documentation: Employer will provide written documentation showing that it can meet, or has met, all required elements of the requested level by the required deadlines.

3.     The following does not qualify as an extenuating circumstance for the DFSP:

a.      The employer received “bad” advice from a drug-free vendor.

H.    Transfers and combinations.

1.     Successor: Not in DFSP.

Predecessor: In DFSP.

Action: If a non-DFSP employer totally succeeds a DFSP employer, the Successor is not eligible to participate in DFSP until the following program period. 

2.     Successor: In DFSP.

Predecessor: Not in DFSP.

Action: If a DFSP employer totally succeeds a non-DFSP employer, the Successor remains in its current DFSP program period. All acquired employees of the predecessor must be immediately included in the Successor’s DFSP plan, including all training required of new employees and, if the successor is in the Advanced Level DFSP, including the predecessor’s employees in the random drug testing schedule.

3.     Successor: In DFSP Basic Level.

Predecessor: In DFSP Advanced Level.

Action: The Successor remains in its current DFSP program period and level of participation. The predecessor employees are included in the Successor’s Basic Level program. 

4.     Successor: In DFSP Advanced Level.

Predecessor: In DFSP Basic Level.

Action: The Successor remains in its current DFSP program period and level of participation. The predecessor employees are included in the Successor’s Advanced Level program, including the random drug/alcohol testing requirement.

5.     Successor: New entity.

Predecessor: In DFSP.

Action: The Successor is not eligible for the DFSP until the next program period. 

I.       Scenarios.

1.     An employer is in the DFSP one year, drops out for one year, and then enrolls again. The employer claims it does not need to train its supervisors in accident analysis since they were trained in the first year of participation. Is this correct?

Answer: No. This employer had a break in participation; so it is classified as a first year participant. First year participants are required to complete all employee training as if they are entering the DFSP for the first time. Employers who are enrolled in the DFSP for consecutive years do not have to retrain supervisors in accident analysis.

2.     An employer that is enrolled in the DFSP – Advanced Level buys out a non-DFSP employer. Are the new employees required to be trained?

Answer: Yes. The employees of the purchased company must be immediately incorporated into the buyer’s DFSP, including employee training, supervisor training, accident analysis training, and random drug/alcohol testing (if applicable). The employees of the purchased employer do not have to be tested under the “new hire” provision of the drug/alcohol testing requirements.

3.     An employer in DFSP immediately re-enrolls in the DFSP for the following program period so there is not break in its participation. The employer asks if it has to re-do its safety review. The employer wants to just use the safety review it conducted last program period. Is this OK?

Answer: No. For each program period that an employer participates in the DFSP, it is required to complete a safety review. If the results are the same as the previous year’s safety review, this may indicate that the employer is making no progress in improving its safety process.

4.     A multi-state employer wants to participate in the Advanced Level but its corporate policy requires employee termination on first positive for a drug/alcohol test. Can they participate in Advanced Level?

Answer: Some employers may have established policies requiring employee termination on first positive which contradicts the requirements of the DFSP Advanced Level. In this situation, multi-state employers, employers with corporate policies that require employee termination on any positive drug/alcohol test, and employers with safety sensitive operations may participate in the Advanced Level provided they receive permission from BWC prior to enrolling in the Advanced Level. An example of a safety sensitive operation may be a security firm with armed employees where the liability of retaining an employee with a positive test may be unacceptable.


Resources