Question: I was called at home on my time off to go take a random drug test. We had just gotten back home from a two-week vacation. Can my company legally require me to submit to a drug test on my time off?
Answer: Federal Motor Carrier Safety Regulations (FMCSRs) state that even if the driver is off work due to temporary lay-off, illness, injury or vacation, the individual’s name cannot be removed from the random pool as long as there is a reasonable expectation you will return to driving.
OOIDA has challenged these regulations because we believe they are unfair to truckdrivers who do not use drugs. The next question is another example of the Federal Motor Carrier Safety Administration’s (FMCSA) ‘guilty until proven innocent’ rationale.
Question: I am trying to determine if there are any limits as to how many times you can be called for a random drug test. I am leased to a company that has sent me three times this year. At any point, can you say enough is enough?
Answer: Even though a driver has been previously tested at random during a calendar year, FMCSRs state that a driver must be returned to the pool for each new selection. Drivers must be subject to an equal chance of being tested during each selection process.
The employer is required to make a certain number of random tests to be performed over the course of one year. The number of tests to be performed in any given year is determined by multiplying the average number of driver positions by the required testing rate, which is currently 10 percent for alcohol and 50 percent for controlled substances. If there are large fluctuations in the number of driver positions throughout the year, the employer must make a reasonable estimate of the number of positions.
Although the FMCSRs contain provisions to lower the required random testing rate, they have not done so 1) because the 10 percent rate for alcohol testing is currently at the minimum allowable by the FMCSA; and 2) the controlled substance usage rate must be less than 1 percent for two consecutive years. Currently, the estimated positive rates for controlled substances hover just above the maximum allowed at 1.3 percent, while the 0.2 percent alcohol usage rate is well below the 0.5 percent maximum limit.
In recent years, surveys have shown that most instances of positive results came from CDL holders during pre-employment screening. Since these are drivers who may never be hired in the first place, OOIDA believes the current rating provisions are grossly unfair to all other drivers.
Our goal is to exempt those drivers who continually test negative in random checks. The current regulations are not only costly in time and dollars wasted, but also in terms of the human dignity that is lost by the many truckers who are far too frequently called upon to prove their innocence. We don’t believe the return in safety is sufficient enough to justify this sacrifice, so OOIDA will continue to challenge the regulations.
Question: I have two questions that I would like answered. First, I am leased to a carrier who started charging me for MVRs. Is this the carrier’s or the owner-operator’s bill?
Second, I am an owner-operator under lease with a company that requires random drug testing. In the past they had been paying for the random drug tests. Recently I was chosen to take a drug test and the carrier deducted it out of my check. They say it is a requirement of DOT and I am responsible for the charges. Is it my bill or theirs?
Answer: Your motor carrier is misleading you if they are saying the DOT requires you to pay for either of these charges. In fact, the FMCSRs do not address responsibility of MVR or drug testing charges.
However, while the motor carrier may order MVRs and drug tests and receive the initial billing for them, there is no wording in the FMCSRs that prohibits them from passing these charges to you. These are fees that should be negotiated and specified within your lease agreement. If the charges are not specified on the lease agreement, and your company is deducting them from your settlement, they are in violation of the federal leasing regulations. All charge-back items should be specified in the contract wording. n
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