IMPORTANT US DOT Drug and Alcohol Substance Abuse Program Changes

There have been many significant regulatory changes at the U.S. Department of Transportation, as well as issues at the State level that affect employers of workers who are subject to DOT requirements. I would be willing to guess that over 95% of the motor carriers do not have their Company policies up to snuff and therefore are not in compliance.

In 2015, the most recent year for which the DOT is reporting, the DOT assessed fines or settled Notices of Claim totaling approximately $33.8 million. In 2014, the total was approximately $36.3 million. Fines for individual motor carriers ranged from $7,000 to $160,000.

As President of NTA, it is my responsibility to inform our NTA Subscribers that they must take the time to implement the following five fixes to help bring your drug and alcohol testing program into compliance.

1. Update your DOT written company drug-testing policy to include opioids.
   Effective January 1 of this year, the DOT updated the testing panel to include four synthetic opiates (now called “opioids” by the DOT) that are available legally by prescription. This includes drugs with the brand names OxyContin, Percodan, Percocet, Vicodin, Lortab, Norco, Dilaud, and Exalgo. Because these are legal prescription medications, employers must be sure to comply with the anti-discrimination and reasonable accommodation provisions of the American with Disabilities Act when an employee discloses the use of these medications or tests positive.
2. Update your driver job descriptions, your fitness-for-duty policy, and your driver accommodation protocol.
   Employers should have an independent fitness-for-duty evaluation performed – in compliance with DOT standards – whenever an employee tests positive for opioids. For workers who are subject to the requirements of the Federal Motor Carrier Safety Act or the Federal Transit Administration, the fitness-for-duty evaluation must be performed by a Certified Medical Examiner. The U.S. Court of Appeals for the Eleventh Circuit has recognized that an employer has broad authority to make fitness-for-duty determinations. Your written job should clearly state that compliance with all applicable DOT standards is an “essential function” of a driving position and should specify any qualification requirements that your company imposes in addition to the DOT minimum requirements. You should decide in advance of a “crisis” whether you can accommodate drivers who aren’t “fit for duty” by reassigning them to non-driving jobs, such as work on the loading dock. (if you can accommodate some drivers in this way, but not all, then you should also decide in advance how to prioritize accommodation needs – for example, whether you are going to prioritize by relative seniority.)
3. Add the FMCSA/FTA Clearinghouse Regulations to your policy.
   These final regulations, which require covered employers to promulgate a policy on use of controlled substances and misuse of alcohol, became effective January 5, 2017, even though the database will not go live until 2020. These Clearinghouse regulations contain a list of specific items that the policies must include. Training on these regulations and forms will take a massive effort, so the sooner you start the better.
4. Require DOT-covered workers to disclose, pre-duty, any legal prescription medications that might affect their ability to drive safely.
   This is specifically authorized in the DOT regulations. In addition to the obvious safety benefit of such a policy, it can also mean that the time the employee spends in the fitness-for-duty process may become a disciplinary suspension for failure to disclose the medication, rather than paid leave. This type of requirement will also help if you are in a medical marijuana state. (Use of medical marijuana violates DOT requirements.)
5. Require all DOT-covered workers to disclose any arrests for off-duty DUIs, as well as convictions and the terms of any “diversion” program as a result of off-duty driving while impaired by alcohol or drugs.
   Disclosure of DUI arrests and convictions are obvious, but diversions may require more explanation. A diversion program – for example, requiring an individual to attend classes or complete rehabilitation – may be available in some states for first-time offenders. Although the terms vary from state to state, in some cases the diversion does not technically require a prior “conviction” for DUI. (In other jurisdictions, diversion is more akin to a suspended sentence post-conviction, and the offender may be able to have the conviction expunged.

Please be advised that some states with diversion programs are currently requiring the use of an “interlock device” on all vehicles operated by an offender during the diversion period. Legislation recently signed into law in Alabama is an example. The individual must breathe into the device before the vehicle will start. If the individual has alcohol in his or her system, the ignition locks temporarily, preventing operation of the vehicle. Installation of the interlock can cost as much as $300, and the offender normally must pay a monthly rental fee for use of the device, as well. The Alabama law specifically provides that employers are under no obligation to put interlock devices on vehicle operated by their employees.

The DOT fitness-for-duty standards now provide that “driving under the influence of alcohol, as prescribed by State law,” is a disqualifying offense. Thus, companies should require DOT-covered workers to disclose any DUI “events” no later than the next business day after the arrest. Company’s should also decide in advance whether you will suspend drivers with DUI arrests, or assign them to non-driving positions, while they await final adjudication. DOT-covered workers should also be required to fully disclose the terms of any diversion program in which they are participating so that you can act accordingly.

Making these five critical fixes now will get your DOT policy back into regulatory compliance, allow you to maintain a fleet of drivers who are fit for duty, keep the roadways safe, and reduce the legal risk for your company.

The Association has engaged the services of Constangy, Brooks, Smith & Prophete LLP of Alabama to help in rewriting your Company Drug and Alcohol Policy to a 37 page professionally custom written one, to bring it back into compliance at a very cost-effective price. This firm was voted Best Law Firms by US News in 2018 and has 190 attorneys in 15 states.

If you are contacted by any agency regarding an audit, you should contact the association as soon as possible to make arrangements for rewriting your Drug and Alcohol Policy. DO NOT wait until the last minute.

All members of the NorthAmerican Transportation Association will receive a special discounted rate.

Send an email to [email protected] to request a DOT or NON-DOT Company policy.

Sincerely,

Wayne Schooling
President & CEO