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Wow. This thread is still around? :shock:
:lol: :P

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Originally Posted by golfhobo

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§382.305 Random testing.
(l) Each employer shall require that each driver who is notified of selection for random alcohol and/or controlled substances testing proceeds to the test site immediately; provided, however, that if the driver is performing a safety-sensitive function, other than driving a commercial motor vehicle, at the time of notification, the employer shall instead ensure that the driver ceases to perform the safety- sensitive function and proceeds to the testing site as soon as possible.

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Interpretation for Part 382: Controlled Substances and Alcohol Use and Testing
Question 17: May an employer notify a driver of his/her selection for a random controlled sub*stances test while the driver is in an off-duty status?

Guidance: Yes. Part 382 does not prohibit an employer form notifying a driver of his/her selection for a random controlled substances test while the driver is in an off-duty status.

If an employer selects a driver for a random controlled substances test while the driver is in an off-duty status, and then chooses to notify the driver that he/she has been selected while the driver is still off-duty, the employer must ensure that the driver proceeds immediately to a collection site. Immediately, in this context, means that all the driver’s actions, after notification, lead to an immediate specimen collection. If the employer’s policy or practice is to notify drivers while they are in an off-duty status, the employer should make that policy clear to all drivers so that they are fully informed of their obligation to proceed immediately to a col*lection site.

If an employer does not want to notify the driver that he/she has been selected for a random controlled substances test while the driver is in an off-duty status, the employer could set aside the driver’s name for notification until the driver returns to work, as long as the driver returns to work before the next selection for random testing is made.

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Question 21: If a driver has been notified of his/her selection of random drug and/or alcohol testing and the testing cannot be completed because of “unforeseeable obstacles” at the collection site (i.e. collection site closed, collector unavailable when driver shows up, emergency such as a fire, natural disaster, etc…), what is the carrier’s responsibility? [Editor’s Note]

Response: In accordance with §382.305(i)(3) and §382.305(l), each driver selected for testing shall be tested during the selection period; and upon notification of selection for random alcohol and/or drug testing proceed to the collection site immediately. In instances of “unforeseeable obstacles” the driver shall immediately contact the employer’s DER for instructions to an alternative collection site. These “unforeseeable obstacles” do not negate the employer’s responsibility of ensuring that the required test be administered. [Editor’s Note] [i]This interpretation was issued after the interpretations were published in the Federal Register in April 1997.[i]

As you can see there is no set time. The regs says proceeds to the test site immediately

kc0iv

Yes..... I kNEW that statement would invite comment, which is why I added the caveat and emphasized the word COMPLETE. :lol:

The two hour figure is what I've been told by my safety department is a time limit by which I have to have the completed paperwork back to them, or at least the collection time on the paperwork must be no more than two hours after my notification.

Don't really know, but I assume this comes from the HUGE book of regulations that THEY must adhere to. We forget sometimes.... that OUR regulations are not the ONLY ones that govern trucking.

Many of the rules that THEY must follow are published in the Federal Register, as your citation indicates. I haven't the inclination to read it all to check on this information, but my employer tells me I have TWO hours.

I don't normally make statements that I can't FIRST check out on my own, but I made an exception this time. :wink:

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Originally Posted by golfhobo

Yes, the article was informative and a good read. But any TEST should be based on the REGS, and not just this article. Not enough info here.

1) I believe the REGS say you have 2 hours (not 4, Useless...) to COMPLETE the test. (I did not check this fact at this moment, but it is MY understanding of it.)

2) I may have used the wrong word when saying the "boss" broke the LAW. These ARE regulations, and breaking them can cost you your license, or authority (for the employer,) but not necessarily get you jail time. If you no longer care to drive a truck..... go ahead and flaunt them!

3) The FMCSA and DOT do not CARE if your boss TRUSTS you! The regulations/procedures MUST be followed for ALL CDL holders, (and carriers,) without regard to what the employer THINKS he knows about an employee.

4) Yes, there are all KINDS of "ways around" telling an employee of a random.... but they do NOT include TELLING him of a random and then giving him some leeway as to WHEN to do it. Once the telling is done.... the procedure is on a clock that NO ONE has control over.

5) For example..... my company has a chalkboard up that says, "the following people need to see [one of our personnel employees.]" This IS a code of sorts, but it meets the letter of the regulation. You will not be officially "notified" until you see that person! Other companies use the wording, "Come see me when you get on the yard."

6) But, ONCE an employee (DER) informs a driver that he has been selected.... there can BE NO delay except as noted in the REGS.

I feel sorry for Mikee, but he SHOULD have been aware of the regs. It is OUR responsibility to KNOW them.... IF we want to be truck drivers. The company DID (it seems) offer to pay bus fare home.... at which time Mikee could have taken his POV and a trailer back to get the stuff that he SHOULD have put in storage somewhere. The company is under NO obligation to buy him a plane ticket, or rent him a U-Haul! And, although they did NOT have to terminate him, they absolutely could NOT allow him to continue to drive the truck!

To reaffirm my previous statement..... Fredog's boss was in violation of the Regulations that afford him his Carrier authority IF he TOLD an employee that he needed to submit to a test, but gave him more than 2 hours to complete it! A carrier is expressly forbidden from doing so BY the REGS!! His boss violated the regs under which his "authority" is governed, and could LOSE his business if it became KNOWN to the DOT. Hence.... my statement about squeezing him for a raise! :wink:

Hobo

Here are the actual regs for the subject:

http://www.fmcsa.dot.gov/rules-regul...ction_toc=1287

The "salient part where Drivers and Time allowed to complete is C & P below:

(l) Each employer shall require that each driver who is notified of selection for random alcohol and/or controlled substances testing proceeds to the test site immediately; provided, however, that if the driver is performing a safety-sensitive function, other than driving a commercial motor vehicle, at the time of notification, the employer shall instead ensure that the driver ceases to perform the safety- sensitive function and proceeds to the testing site as soon as possible.

(m) A driver shall only be tested for alcohol while the driver is performing safety-sensitive functions, just before the driver is to perform safety-sensitive functions, or just after the driver has ceased performing such functions.

And from this regulation cited above stems this "Guidance" which appears on the same site and is located here:

http://www.fmcsa.dot.gov/rules-regul...287&guidence=Y

Question 17: May an employer notify a driver of his/her selection for a random controlled sub?stances test while the driver is in an off-duty status?

Guidance: Yes. Part 382 does not prohibit an employer form notifying a driver of his/her selection for a random controlled substances test while the driver is in an off-duty status.

If an employer selects a driver for a random controlled substances test while the driver is in an off-duty status, and then chooses to notify the driver that he/she has been selected while the driver is still off-duty, the employer must ensure that the driver proceeds immediately to a collection site. Immediately, in this context, means that all the driver?s actions, after notification, lead to an immediate speci?men collection. If the employer?s policy or practice is to notify drivers while they are in an off-duty status, the employer should make that policy clear to all drivers so that they are fully informed of their obligation to proceed immediately to a collection site.

If an employer does not want to notify the driver that he/she has been selected for a random controlled substances test while the driver is in an off-duty status, the employer could set aside the driver?s name for notification until the driver returns to work, as long as the driver returns to work before the next selection for random testing is made.

Employers should note that regardless of when a driver is notified, the time the driver spends traveling to and from the collection site, and all time associated with providing the specimen, must be recorded as on-duty time for purposes of compliance with the hours-of-service rules.

Interestingly enough....nowhere in either the regulations or the guidance...is there any mention of "allowed amounts of time" to accomplish the mission.... only the words stating the driver must proceed immediately subject a couple of conditions. So there is interpretive room in the regulations.....however, it is not a "getroundtuit" situation....it simply means ASAP in a very definite manner.

And I can also see where this regulation and its guidance could be used to eliminate a driver from the fleet with just a modicum of manipulation by a dispatcher.... :shock: [/i]

Skywalker said (among other things):

Quote:

Interestingly enough....nowhere in either the regulations or the guidance...is there any mention of "allowed amounts of time" to accomplish the mission.... only the words stating the driver must proceed immediately subject a couple of conditions. So there is interpretive room in the regulations.....however, it is not a "getroundtuit" situation....it simply means ASAP in a very definite manner.

To be honest, Skywalker, I'm not sure why you chose to repeat what others have already covered pretty well, unless you were wanting to post the COMPLETE regs for purpose of the "test." :lol:

Futhermore, the part that I quoted from your post above, neglects what I stated about the fact that Safety Depts have OTHER regulations and guidance concerning the program that WE are not privy to, if we only search the FMCSA site.

Granted, the 2 hour stipulation MAY only be a "company policy" in my case. I REALLY don't know. I just know that they tell me I MUST get it completed within TWO HOURS! I will ask them about the source/reason for that, and get back to y'all! :wink:

And here's one that I can't find any comment on.....

If you just finished your 11 hours for the day, and are off duty on a required 10 hour break, HOW can they force you to drive over your HOS to a clinic for a random, which MUST be done "on duty" ???????

Which would trump?? The random testing regs? Or the HOS regs? :shock:

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Originally Posted by golfhobo

Skywalker said (among other things):

Quote:

To be honest, Skywalker, I'm not sure why you chose to repeat what others have already covered pretty well, unless you were wanting to post the COMPLETE regs for purpose of the "test." :lol:

Overkill? 8) :lol: Actually...so that some of the less experienced among us would have something finite besides a "truckstop lawyer's" opinion. 8) (No inferences intended!)

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Futhermore, the part that I quoted from your post above, neglects what I stated about the fact that Safety Depts have OTHER regulations and guidance concerning the program that WE are not privy to, if we only search the FMCSA site.

Granted, the 2 hour stipulation MAY only be a "company policy" in my case. I REALLY don't know. I just know that they tell me I MUST get it completed within TWO HOURS! I will ask them about the source/reason for that, and get back to y'all! :wink:

I realize that....and I feel I can safely say that for the most part....any actual "time-frame" for completion that stipulates a fixed amount of time as a maximum for completion of the task is about 99.999% based on "company policy" as opposed to the FMCSR's as published.

I know that when I was at CFI...the "only" times I was ever subjected to the "random" testing was after my arrival at a terminal location. You got called to local dispatch...handed the notice with a map to the location, and told to "go right now" and report back when completed. It usually happened in Laredo.

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And here's one that I can't find any comment on.....

If you just finished your 11 hours for the day, and are off duty on a required 10 hour break, HOW can they force you to drive over your HOS to a clinic for a random, which MUST be done "on duty" ???????

Which would trump?? The random testing regs? Or the HOS regs? :shock:

My personal opinion would be the HOS...because the FMCSR's clearly and bluntly state that you cannot operate a CMV after the 11th hour.

However...the more salient questions are these: Are you, at the time of "notification"...at a location where you can easily go to the testing site? Is it a site that has truck parking? Is it within a reasonable distance that you could take a cab? Would the company reimburse for the cab ride? Is the Director of Safety for the company willing to send you a message via Qualcomm/Mmax.... or other stored means (email, etc) giving you a direct order to violate HOS, or permission to wait until break is up.

8) You sure like to throw rocks at hornets nests...don't you?? 8)

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Originally Posted by golfhobo

Skywalker said (among other things):

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From the website: http://www.dot.gov/ost/dapc/testingp...m_brochure.pdf

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D. What must employees do when notified of a random test?

When an employee is notified, he or she must proceed immediately to the collection site. Contrary to the urban legends circulating among some employees, immediately does not mean two hours. Immediately means that after notification, all the employee’s actions must lead to an immediate specimen collection

kc0iv

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Originally Posted by Jackrabbit379

Wow. This thread is still around? :shock: :lol: :P

Yeah, and TruckerManMikee is now long forgotten, having completed the SAP number , and toilling away at BurgerLand!!

He IS trying to get back into driving, but is having a hard time finding a company that will give him a couple of days fair warning on drug tests!! :P

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Originally Posted by Useless

:lol:
I kinda figured. :P

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Originally Posted by Skywalker

I think one of your key issues is the information contained in the FMCSR's, Subpart 1, 40.191.... (a) (1) deals with refusal issues... and the key wording here is your issue. Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer.......

What is at issue is this: How much time were you given, based upon the exact wording of the message you recieved? Were you told where to go and where to report to? If not, did you immediately contact Safety, and ask them?

Have you spoken with Swift's Director of Safety, and has he/she read the actual message that you received? Was it via Qualcomm? If so, that message if it says ASAP, is still in the system, and the dispatchers word that it was to be immediate is suspect. However.....if the message was given to you verbally....its another nest of problems.

If your service and performance record their is good, I can't see why there is a problem. If you got it done within 24 hours....it should be a non-issue. If you have no issues with Swift, its hard to understand why they would terminate you.

However, 382.305, (l), states: Each employer shall require that each driver who is notified for selection for random alcohol/and or controlled substance testing proceeds to the test site "immediately"; provided, however that if the driver is performing a safety-sensitive function other than driving a commercial motor vehicle, at the time of notification, the employer shall instead ensure that the driver ceases to perform the safety sensitive function and proceeds to to the testing site as soon as possible.

So it seems that in one sense you are between a rock and a hard spot.

Did you ever report for the test and give the required sample. If yes, then the results will speak for themself. If not, then you will be noted as having refused to take said test.....which is bad.

If you took the test and come up "clean", then Swift shot themself in the ass. You need to get a copy of the results....even if you have to go to that clinic and get them. If you are clean, then those results will show your "good faith" and keep you "employable". If you did not take the test as required.... you shot yourself in the foot, badly. I realize that you said that you went within 24 hours....but you didn't say if you completed the procedure.

Folks, this is an issue that must be addressed right exactly when you are notified. You get the where and when from your company.....and get it done....no matter what, and yes, your company can even notify you when you are on "time-off" at home or anywhere....and yes, according to part 382....you must proceed "immediately" to the testing site. This will not appear in the regular FMCSR book, but it is contained in the answer to question 17 regarding this subject in the guidance book.

Good luck on your problem.

wording doesn't matter. you have 2 hours!! that's it. when they tell you, they have a responsibiliy to get you directions to the facility. they will pay for taxi's or whatever. but it is their job to make it accessible to you. however it is you job to convey to them ANY troubles you may have, traffic, can't fit in the parking lot, etc. other than that, 2 hrs. and the clock is ticking.