... by Robert Schoening...FMCSA: How did Pre-employment Alcohol Testing Happen in the Trucking Industry?
... Drug & Aclohol Testing Regulations for FMCSA - Truck and Bus drivers...
Over the years there have been a number of policy issues and interpretations that needed to be addressed for both the drug and alcohol testing in order to have a smooth running program.
A major issue in 1994 and 1995 was the requirement to do pre-employment alcohol testing. In December 1994, the American Trucking Association (ATA) petitioned the Fourth Circuit Court of Appeals for an injunction on the requirement to do pre-employment alcohol testing. DOT/FHWA, shortly after the injunction was filed, made the decision to not enforce pre-employment alcohol testing pending the court ruling.
On January 6, 1995, FHWA published this notice in the Federal Register: “Large employers may begin implementing the requirements of Sec. 382.301 of this part with respect to alcohol testing on January 1, 1995, but are not required to do so until May 1, 1995.”
Note: at the time FMCSA was part of FHWA in a department titled Office of Motor Carrier Safety.
The Fourth Circuit Court issued a ruling on April 5, 1995 prohibiting pre-employment alcohol testing for Federal Highway Administration. The wording from that case is:
"Because DOT and FHWA misinterpreted the Omnibus Transportation Employee Testing Act of 1991, we vacate the agencies' final rule insofar as it requires alcohol testing of all would-be motor carrier operators prior to their first performance of a safety-sensitive function. We remand for the agencies to reinterpret 47 U.S.C.App. s 2717(a) in the light of this opinion and then to promulgate final rules consistent with that reinterpretation.
VACATED AND REMANDED”
In light of the above decision, the Department of Transportation, Office of Secretary made the decision to vacate pre-employment alcohol testing for all affected transportation modes, FAA, FHWA now FMCSA, FRA and FTA. This notice was a final rule published in the Federal Register on May 10, 1995. This Final Rule is still in effect today. *
Companies that are regulated by one of the four modal agencies are not required to do pre-employment alcohol testing. A trucking company can choose to do pre-employment alcohol testing following the regulations stated in 49 CFR 382.301. There is no published policy guidance for pre-employment alcohol testing."
* On a personal note, I remember those days being very hectic particularly when ATA filed the motion with the court for an injunction as it was, as I recollect, right around Christmas. It was during that time when the decision was made by the Secretary, signed by Secretary Pena on December 30, 1994, to not enforce the pre-employment alcohol test requirements pending the decision of the Fourth Circuit Court. Those times were in turmoil and lasted until May 10, 1995 with the publication of the final rule.”
Compared to the rocky road that pre-employment alcohol testing had to travel, the road to drug testing has been relatively easy, but there are still some issues and with policy guidance being issued.
The first issue is an employer who uses but does not employ, a driver. This refers to a trip-lease who is employed by one motor carrier but is temporarily leased to another motor carrier for a time period of less than 30 days. In these instances, a drug test would not be required. It would ne incumbent upon the motor carrier to ensure that the leased driver is subject to random drug testing in accordance with 49 CFR 382.301(b).
A major question is school bus drivers. There is no break in the employment of the driver that remains in the random testing selection pool during the summer months. In those cases, no pre-employment test is required. This same approach is the same for other drivers who are on an extended layoff provided that they are in the random testing pool for the motor carrier. Again the 30 day rule applies which means that a test is required if not subject to testing or not considered an employee of the carrier.
Another issue is driver termination. If a driver is terminated by a motor carrier and the driver returns to the same carrier after more than 30 days have passed since the termination date, a pre-employment test is required unless the exceptions as stated in Section 382.301(c) were not met.
Testing is not required if the motor carrier conducts a road test to assess the driving skills of a driver to operate a commercial motor vehicle. The same applies to examiners who are assessing the skills of a CDL holder. This does not waive the requirement for a drug test prior to putting the driver behind the wheel of a CMV on their first road trip.
The other guidance is for drivers are returning to work after completing the SAP requirements and will be working for a new motor carrier. The Return-To-Duty and pre-employment test can be one test only when the new employer would be required to conduct both tests on the same day.
The next article will explore alcohol testing and the role that the alcohol testing devices play with being in compliance.