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Week of February 6, 2012
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FMCSA has clarified a number of drug and alcohol testing rules. Under the newly revised rules, carriers will have a clearer picture of what they should do when they find a driver using drugs.
The Federal Motor Carrier Safety Administration (FMCSA) has tweaked regulations regarding drug and alcohol usage to clarify both the driver’s and the motor carrier’s responsibilities. They have amended various rules to clear up ambiguities in the regulations regarding drug and alcohol usage.
What Has Changed?
While the regulations aren’t new per-se, there are a number of tweaks to clarify earlier rules:
Sections 382.201 and 382.215
In these sections, the current regulations use the term “actual knowledge”. FMCSA has amended the rules to say “knowledge” instead of “actual knowledge”. This is because “actual knowledge” is officially defined as relating to observations and regulations 201 and 215 refer to knowledge that could only be gained from drug or alcohol testing.
Section 382.211
This amendment adds pre-employment and return-to-duty drug and alcohol testing to the list of tests that can be counted as a refusal to test. This change simply clarifies that a driver refusing to take part in these tests is violating the regulations and would have to undergo the return-to-duty process before taking a safety-sensitive position.
Note that this does not change that not arriving for a Pre-Employment test is not considered a refusal-to-test.
Sections 382.213, 391.41 and 391.43
These regulations clarify that no safety-sensitive individual may use a Schedule I substance. As the regulation was previously written, there seemed to be an exception that a driver could get a prescription for a Schedule I. As all Schedule I drugs are illegal and cannot be prescribed, that was never possible.
In addition, the rule clarifies that a safety sensitive individual using medication prescribed by a medical practitioner, may continue with their duties only when the prescriber has been made aware of the individual’s duties and has advised that the medication will not affect the individual’s ability to do those duties.
If they choose to, carriers may require that drivers inform them of any therapeutic drug use.
Explanation: What if I Find My Driver Using Drugs?
There are several scenarios where you might find one of your drivers is using drugs. (1) After a DOT drug test; (2) if you observe the driver using drugs; (3) without prompting, the employee voluntarily admits to using drugs (4) your driver gets a DUI in his or her CMV; and (5) it is revealed on an in the driver’s Safety Performance History File.
In the case of (1), a DOT drug test, the answer is simple, you follow the regulations; the driver must go through the return-to-duty process.
In the case of (2), observing an employee using a drug, you would not send the employee for a test, (not even a reasonable suspicion test). The employee would then have to go through the return-to-duty test.
In the case of (3), the employee admits to using drugs you would follow your company’s human resources policy. If you have a voluntarily admission as described in the regulations in Section 382.12 you would follow that protocol. (Note: Foley does not recommend using such a policy).
In the case of (4), the driver gets a DUI in his or her CMV, the driver would have to undergo the return-to-duty process before returning to safety-sensitive duties. (Assuming the courts allow them to perform such duties at all).
In the case of (5), a violation is revealed on an applicant’s Safety Performance History File, the individual would have to undergo the return-to-duty process before beginning safety-sensitive function. It’s your responsibility to ask applicants if they have had a violation in the past.
Editor: Roxanne Swidrak, Vice President, Operations • 1-800-253-5506 • www.FoleyServices.com • Vol. 111, No. 724 • © Foley Carrier Services, LLC. 2011
