[Myth_Buster]

Knowledge is power, no one knows it all; however, knowing a little about a lot and be willing to do some research does wonders.

In the last couple of days I spoke with people that perform services for trucking companies and drivers. In their own right some of these people are considered experts in their field. However, there were some things that required the conversation to be drawn out as the person did not understand the federal rules.

Case 1: Annual drug test performed on school bus drivers IAW state law (NOTE: This would apply to ANY drug or alcohol tests not required by the US DOT.):

§ 40.47 May employers use the CCF for non-Federal collections or non-Federal forms for DOT collections?

(a) No, as an employer, you are prohibited from using the CCF for non-Federal urine collections. You are also prohibited from using non-Federal forms for DOT urine collections. Doing either subjects you to enforcement action under DOT agency regulations.

(b) (1) In the rare case where the collector, either by mistake or as the only means to conduct a test under difficult circumstances (e.g., post-accident or reasonable suspicion test with insufficient time to obtain the CCF), uses a non-Federal form for a DOT collection, the use of a non-Federal form does not present a reason for the laboratory to reject the specimen for testing or for an MRO to cancel the result.

(2) The use of the non-Federal form is a “correctable flaw.” As an MRO, to correct the problem you must follow the procedures of §40.205(b)(2).

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41950, Aug. 9, 2001]

The Federal Motor Carrier Safety Administration requires drug or alcohol tests to be performed under the following circumstances:

Subpart C—Tests Required

§ 382.301 Pre-employment testing.
§ 382.303 Post-accident testing.
§ 382.305 Random testing.
§ 382.307 Reasonable suspicion testing.
§ 382.309 Return-to-duty testing.
§ 382.311 Follow-up testing.

Any other tests are not mandated by the DOT therefore, the collector may not use the federal collection form.

In the case of the annual bus driver drug tests required by state law carriers must explain in the drug & alcohol policy the difference between the two tests and what the consequences are for failing any drug or alcohol tests.

§ 382.601 Employer obligation to promulgate a policy on the misuse of alcohol and use of controlled substances.

(a) General requirements. Each employer shall provide educational materials that explain the requirements of this part and the employer's policies and procedures with respect to meeting these requirements.

(1) The employer shall ensure that a copy of these materials is distributed to each driver prior to the start of alcohol and controlled substances testing under this part and to each driver subsequently hired or transferred into a position requiring driving a commercial motor vehicle.

(2) Each employer shall provide written notice to representatives of employee organizations of the availability of this information.

(b) Required content. The materials to be made available to drivers shall include detailed discussion of at least the following:

(1) The identity of the person designated by the employer to answer driver questions about the materials;

(2) The categories of drivers who are subject to the provisions of this part;

(3) Sufficient information about the safety-sensitive functions performed by those drivers to make clear what period of the work day the driver is required to be in compliance with this part;

(4) Specific information concerning driver conduct that is prohibited by this part;

(5) The circumstances under which a driver will be tested for alcohol and/or controlled substances under this part, including post-accident testing under §382.303(d);

(6) The procedures that will be used to test for the presence of alcohol and controlled substances, protect the driver and the integrity of the testing processes, safeguard the validity of the test results, and ensure that those results are attributed to the correct driver, including post-accident information, procedures and instructions required by §382.303(d);

(7) The requirement that a driver submit to alcohol and controlled substances tests administered in accordance with this part;

(8) An explanation of what constitutes a refusal to submit to an alcohol or controlled substances test and the attendant consequences;

(9) The consequences for drivers found to have violated subpart B of this part, including the requirement that the driver be removed immediately from safety-sensitive functions, and the procedures under part 40, subpart O, of this title;

(10) The consequences for drivers found to have an alcohol concentration of 0.02 or greater but less than 0.04;

(11) Information concerning the effects of alcohol and controlled substances use on an individual's health, work, and personal life; signs and symptoms of an alcohol or a controlled substances problem (the driver's or a co-worker's); and available methods of intervening when an alcohol or a controlled substances problem is suspected, including confrontation, referral to any employee assistance program and or referral to management.

(c) Optional provision. The materials supplied to drivers may also include information on additional employer policies with respect to the use of alcohol or controlled substances, including any consequences for a driver found to have a specified alcohol or controlled substances level, that are based on the employer's authority independent of this part. Any such additional policies or consequences must be clearly and obviously described as being based on independent authority.

(d) Certificate of receipt. Each employer shall ensure that each driver is required to sign a statement certifying that he or she has received a copy of these materials described in this section. Each employer shall maintain the original of the signed certificate and may provide a copy of the certificate to the driver.

Carriers often expand their D & A policy and fail to notify drivers of where federal regulation ends and expanded company begins, i.e. post accident drug and alcohol tests, many carriers test drivers following any accident. Provided the company explains the expanded provision to drivers and does not use a federal collection form that is acceptable. However, if the carrier used a federal collection form and failed to inform the driver of the difference then a driver could seek civil action against the carrier if the driver refused the test or the test came back positive. The carrier cannot report non-DOT test that were positive as positive.

§ 391.23 Investigation and inquiries.

(e) In addition to the investigations required by paragraph (d) of this section, the prospective motor carrier employers must investigate the information listed below in this paragraph from all previous DOT regulated employers that employed the driver within the previous three years from the date of the employment application, in a safety-sensitive function that required alcohol and controlled substance testing specified by 49 CFR part 40.

(1) Whether, within the previous three years, the driver had violated the alcohol and controlled substances prohibitions under subpart B of part 382 of this chapter, or 49 CFR part 40.

(2) Whether the driver failed to undertake or complete a rehabilitation program prescribed by a substance abuse professional (SAP) pursuant to §382.605 of this chapter, or 49 CFR part 40, subpart O. If the previous employer does not know this information (e.g., an employer that terminated an employee who tested positive on a drug test), the prospective motor carrier must obtain documentation of the driver's successful completion of the SAP's referral directly from the driver.

(3) For a driver who had successfully completed a SAP's rehabilitation referral, and remained in the employ of the referring employer, information on whether the driver had the following testing violations subsequent to completion of a §382.605 or 49 CFR part 40, subpart O referral:

(i) Alcohol tests with a result of 0.04 or higher alcohol concentration;

(ii) Verified positive drug tests;

(iii) Refusals to be tested (including verified adulterated or substituted drug test results).

(f) A prospective motor carrier employer must provide to the previous employer the driver's written consent meeting the requirements of §40.321(b) for the release of the information in paragraph (e) of this section. If the driver refuses to provide this written consent, the prospective motor carrier employer must not permit the driver to operate a commercial motor vehicle for that motor carrier.

IOW, if the drug or alcohol test was not required by the US DOT then the carrier cannot report the tests to subsequent employers as positive in the guise of complying with the FMCSR.

To further protect drivers the FMCSA has training requirements for ALL supervisors to tests for reasonable suspicion:

§ 382.603 Training for supervisors.

Each employer shall ensure that all persons designated to supervise drivers receive at least 60 minutes of training on alcohol misuse and receive at least an additional 60 minutes of training on controlled substances use. The training will be used by the supervisors to determine whether reasonable suspicion exists to require a driver to undergo testing under §382.307. The training shall include the physical, behavioral, speech, and performance indicators of probable alcohol misuse and use of controlled substances. Recurrent training for supervisory personnel is not required.

It is imperative for drivers to know their rights and when drug testing is mandated and when carriers have expanded drug and alcohol testing requirements. Test performed outside of the FMCSR cannot be reported as positive to subsequent employers. The same should apply to DAC Services. D & A test results are confidential; any release to an unauthorized party could result in civil action against the offender.

Case 2: Conviction of offenses that mandate a driver’s CDL be revoked:

§383.51 Disqualification of drivers has a table of offenses that when a driver is CONVICTED the driver’s CDL must be suspended or revoked. If an attorney can have a violation listed in §383.51 reduced to a lesser charge, then the driver maybe able to keep their CDL.

Know your rights; chances are no one else will be there to help who knows all of the answers.

Be safe.

[glasman2]

Simple response to this is....Don't do drugs :P

[Useless]

What's with all of these long winded answers to questions that no one ever asked?? :shock:

[Double R]

Originally Posted by Useless

What's with all of these long winded answers to questions that no one ever asked?? :shock:

Maybe he/she is Dawn's clone

Correction: JQP.

Did you have to post this on every board?

[Jackrabbit379]

Originally Posted by Useless

What's with all of these long winded answers to questions that no one ever asked?? :shock:

Maybe,because they want to,uh I dunno. :P

[Myth_Buster]

glasman2:

Simple response to this is....Don't do drugs

What if your employer asked to take a drug test because you slipped and hurt your leg? The carrier wants to know if drugs contributed to the accident?

Is slipping and hurting your leg justification for doing a D & A test?

What if the test came back positive for morphine because you went to the emergency room immeadiately after the fall and received medication that contained trace elements of morphine?

What if the employer fired your sorry azz because you tested positive, then reported to DAC you tested positive?

PFM, offer some friendly advice and azzhats here want to moan and groan.

Don't read the post folks, move on.

Be safe.

[Useless]

Originally Posted by Myth_Buster

glasman2:

What if your .........yadda, yadda, yadda.....

What if the test......ramble.......ramble.........ramble

What if the employer.....more yadda, yadda, ramble, ramble, mumble, etc..
:roll: :roll:
Be safe.

What if you just took a couple of asprin and had a nice day...somewhere else!! :P

[Fozzy]

What if your employer asked to take a drug test because you slipped and hurt your leg? The carrier wants to know if drugs contributed to the accident?

What if? If you are under some work rules that require this, you knew it because it's in your handbook that you signed for. And what if Giant purple flying monkeys took over Cleveland?

Is slipping and hurting your leg justification for doing a D & A test?

See answer number one. If your employer has reasonable suspicion that you are on dope at work, then you take the drug test or QUIT.

What if the test came back positive for morphine because you went to the emergency room immeadiately after the fall and received medication that contained trace elements of morphine?

Then in the report, the emergency room would have that they gave you a pain medication or other drug... its that simple. If you do not have written proof that someone (preferable in the medical field) else put the drug in your body, then it's a no brainer that you put it there.

What if the employer fired your sorry azz because you tested positive, then reported to DAC you tested positive?

Then you tested positive for a drug while under these rules and they had a right to report this FACT to the people they report these things too.

PFM, offer some friendly advice and azzhats here want to moan and groan.

Don't read the post folks, move on.

Be safe.

Too late...

[lonewolf]

Originally Posted by Useless

What's with all of these long winded answers to questions that no one ever asked?? :shock:

so,someone has to ask a question before MB is allowed to post,jeez people,he's trying to help you in case you find yourself in this situation in the future,you are neither required to read it nor follow his suggestions,it seems that when MB or Dawn post,,the same people just attack and nitpick every little thing that these 2 have to say,i for one welcome all the help i can receive in understanding some of the more vague regs that we live by day in and day out.

no one driver knows everything there is to know about the regs,every bit of help we can get from the people that are paid to enforce these rules should be appreciated,not scourned and ridiculed

[Myth_Buster]

Fozzy:

Then in the report, the emergency room would have that they gave you a pain medication or other drug... its that simple. If you do not have written proof that someone (preferable in the medical field) else put the drug in your body, then it's a no brainer that you put it there.

That maybe helpful in the subsequent civil suit to try and get your job back. However, there maynot be a MRO review, therefore, the information is not relevant to the situation at the time.

See answer number one. If your employer has reasonable suspicion that you are on dope at work, then you take the drug test or QUIT.

Then the supervisor must have reasonable suspicion training and qualify the reason why the reasonable suspicion tests was requested. The fact the employee slipped by it self is not reasonable suspicion.

Then you tested positive for a drug while under these rules and they had a right to report this FACT to the people they report these things too.

Not necessarily, if the tests was done outside the parameters of the US DOT requirements then the test cannot be reported as positive.

Useless, go away you bother me.

Be safe.