DRUGANDALCOHOLREASONABLE SUSPICIONANDCOMPLIANCE

In investigating crashes, I’ve found several issues with compliance related to drug and alcohol testing, a major program aligned with operating a commercial vehicle, existing as a motor vehicle carrier, and even as a shipper, receiver, or broker. Compliance, involving both a driver qualification file upon initial hiring of a driver, and the pre-employment, random, and reasonable suspicion drug and alcohol testing, has caused significant issues for trucking companies – especially when exposed to a lawsuit pursuant a crash and these programs aren’t properly set up or maintained.

The Federal Motor Carrier Safety Administration (FMCSA), in their 49 CFR 382 section, outlines all responsibilities, from those of a carrier, the driver, testing facilities, and those personnel in trucking companies who are specially trained to recognize drug or alcohol usage or abuse and have been designated “reasonable suspicion supervisors.”

As I investigate these crashes and some of the most important factors in the documents and evidence obtained from the motor vehicle carrier are the driver qualification file (FMCSA 49 CFR 391.51) and drug and alcohol compliance program (49 CFR 382). Said bluntly, if the driver qualification file isn’t complete and properly maintained, and the company doesn’t have a solid drug and alcohol testing program, a driver for that company should not be operating a commercial motor vehicle (CMV) on public roadways. Backing that notion up a few steps, if a crash occurred, and the driver wasn’t even supposed to be driving...well, that’s how nuclear verdicts happen under the Reptile Theory.

There are two elements to a “solid” drug and alcohol testing program – pre-employment drug screening is completed in accordance with 49 CFR and a random testing program is in place. Every trucking company must either maintain their own random testing program or join a consortium for testing – many smaller companies join these consortiums where their employees are drawn from a larger pool for random testing.

In a real-world example, I worked as a terminal manager for a major trucking company several years back. As part of my duties, I attended classes and training that designated me as a Certified Drug and Alcohol Testing Technician and a Certified Drug and Alcohol Reasonable Suspicion Testing Supervisor. Several times per week, our company would select drivers and shop employees to be randomly tested for drugs, alcohol, or both. Then my staff and I would administer and supervise those tests. There is a very specific protocol for these tests as outlined in 49 CFR 382 Part 40. These random tests are to be conducted in a truly random fashion – select a number of employees from the entire group without pattern or prejudice, and the tests are announced in a surprise fashion – many times, a driver will receive instruction to go to a terminal and see the safety manager or operations manager, and only at that time are they informed of a random drug or alcohol test.

BY JAMES E. LEWIS ///

One of the primary duties as a terminal manager involved the training I had received to recognize someone under the influence of drugs or alcohol and direct immediate testing. I also leaned on my experience as a military policeman in encountering people who were intoxicated or high and used that knowledge to help apply the elements learned in the 49 CFR classes. On one occasion at my Oklahoma terminal, I was on a “walkabout,” coined from the movie Crocodile Dundee, where when I had a slack period, I would walk around the terminal and the shop, engaging employees, checking their readiness for duty, attitudes, and also inspecting the facilities for damage or needed updates. I encountered a male driver in the laundry room and spoke with him, but the driver moved away from me, clinging to a wall. I knew the driver’s truck was in the shop for a brief inspection and there was a load ready and waiting in the yard. The driver was smart to do his laundry while he had this hour or two to wait – the driver had started his duty day. Per his logs, he would be leaving as soon as his truck was ready. However, as I continued to press the conversation, I detected the odor of alcohol emanating from the driver’s breath. I had the driver accompany me to my office where I called in one of the trainers as a witness, and an alcohol test was administered. The driver had obviously been drinking, as the test confirmed a .18% alcohol level in the saliva test. I notified my corporate human resources manager and was directed to supervise a urinalysis. The results of the urinalysis supported the alcohol saliva test, and the driver was terminated.

A common myth of reasonable suspicion testing is that another employee or customer can report someone for being intoxicated or high, and that can trigger a reasonable suspicion test – that’s simply not true. Only someone trained and certified as a reasonable suspicion supervisor can direct an alcohol or drug test upon witnessing the actions and surrounding elements of the driver/ employee personally.

A new development in this arena is the Drug and Alcohol Clearinghouse governed by 49 CFR 382.701. All commercial drivers must enroll in the clearinghouse and give their identifying data while all companies hiring drivers must make an inquiry to the clearinghouse prior to hiring a driver. The company must also make annual inquiries to the clearinghouse for each of their drivers. This clearinghouse system adds to the system already in place where a company potentially hiring a driver makes written inquiries to the companies the driver has worked for in the past three years. The clearinghouse, though, takes several elements of potential fraud and apathy out of the equation – someone could falsify the written form stating that a driver did not fail a drug or alcohol test; and it also overrides the issue where a potential employer could not or would not contact a previous employer.

One final part of the drug and alcohol testing system is the post-accident or incident testing scenario. A company is required to mandate a test for a driver involved in a Department of Transportation (DOT) recordable crash

– those involving injuries, fatalities, or the disablement of either vehicle. 49 CFR 382.303 dictates that any driver receiving a citation after a crash or incident must be tested for alcohol within eight hours of receiving the citation. The driver must be tested for controlled substances within 32 hours. The exception to this rule is that any driver involved in a fatal accident, whether cited or not, must be tested under these two parameters.

All of the “chapters” from the FMCSA drug and alcohol program are examined after a driver has been involved in a crash. Records are subpoenaed. If the driver qualification file isn’t complete; if pre-employment testing wasn’t completed; if a random testing program isn’t in place; and if post-accident testing wasn’t completed, a trucking company firmly holds their share of liability in the crash.