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Questions & answers

Donna Ryun
information services

Question: Who is supposed to pay for random drug tests — my company or me?

Answer: The Federal Motor Carrier Safety Regulations do not address the issue of responsibility for payment for random drug tests. The motor carrier is responsible at all times for ensuring compliance with the rule, but it’s left up to the parties involved to negotiate payment responsibilities. If you are an employee driver, check your company’s handbook. Leased owner-operators should review their contracts for provisions that designate this responsibility.

Question: We recently had a situation where a driver had been given a drug screen as part of the initial hiring process. Shortly after his hire, he was randomly chosen to have a drug screen by the consortium we are participants in.

After they both came back negative, a customer confidentially told us that there was a strong possibility the driver had been using drugs since the second drug screen.

All of our drivers hold a class A CDL.

What kind of statutes/rules apply regarding asking this employee to submit to yet another drug screen in less than six months?

Answer: According to the Federal Motor Carrier Safety Regulations Handbook, Section 382.307 allows for reasonable suspicion testing. However, requiring a driver to submit to a reasonable suspicion test must be based on your own observations as a trained company official, and not on the observations or suggestions of a third party. Here’s the wording taken from the FMCSRs:

§ 382.307 Reasonable suspicion testing (b) An employer shall require a driver to submit to a controlled substances test when the employer has reasonable suspicion to believe that the driver has violated the prohibitions of subpart B of this part concerning controlled substances. The employer’s determination that reasonable suspicion exists to require the driver to undergo a controlled substances test must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver. The observations may include indications of the chronic and withdrawal effects of controlled substances.

(c) The required observations for alcohol and/or controlled substances reasonable suspicion testing shall be made by a supervisor or company official who is trained in accordance with §382.603.

§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.

Question: Can an employer require you to submit to a random drug screen while you are scheduled off-duty? My employer called me when I was scheduled to be off for a period of one week to inform me to come in “for a random.” Is this legal, since I was off-duty?

Answer: Guidance taken from the Federal Motor Carrier Safety Regulations Handbook under §382.305 says an individual’s name should not be removed from the random pool so long as there is a reasonable expectation of the employee’s return to duty. This includes times when an employee is off work due to temporary layoff, illness, injury or vacation.

However, if an employer draws your name from the random pool, the employer can choose whether or not to notify you to report for the controlled-substances screening while you are on off-duty status.

If the employer chooses to notify you that you have been randomly selected while on off-duty status, it is then the employer’s responsibility to see that you report to a collection site immediately. If it is the employer’s policy to notify drivers while they are on off-duty status, the employer should make it clear to them so they are aware of their obligation to report to a collection site immediately.

Notice that I said, “the employer should make it clear” ... there’s nothing in the regulations that actually requires them to extend this courtesy, so be aware that if your carrier decides to notify you by cell phone when you’re on the roller coaster at Disneyland, you are obligated to report to a collection site immediately. If you don’t, your carrier can consider this a refusal.

If you’re thinking this is outrageous, we agree. OOIDA representatives have even had conversations with FMCSA officials who have stated as much, saying carriers should have the common sense not to issue notification to drivers who are on vacation, when all they have to do is set the notification aside until the driver returns to duty. According to the regulations, it’s perfectly acceptable for the carrier to wait to notify the driver until he/she returns from vacation provided it is before the next selection for random testing.

If you’re taking an extra long vacation and won’t be available prior to the next selection for random testing, your employer may select an alternate. If this is the case, the employer and/or the consortium/third-party administrator (C/TPA) are required to document why an alternate was tested instead of you, and to have this documentation readily available for a regulator’s scrutiny.

Carriers who refuse to do this are either ignorant of the regulations, or just plain jerks, to put it mildly.

It’s important to note that the regulations are different for random alcohol testing. Alcohol testing may be only done just before, during or just after the performance of safety-sensitive functions, so if you’re enjoying a beer while relaxing on the patio during your vacation, it’s OK as long as you won’t be on-duty for a while.

If you have questions you’d like answered, please e-mail them to dryun@ooida.com or send them to me at P.O. Box 1000, Grain Valley, MO 64029. Although we won’t be able to publish all questions in Land Line, you will receive a response.

March/April
Digital Edition