A Common Mistake

A Common Mistake: Linking DOT Drug Screens with Medical Exams

It’s a question posed all the time. “Should a routine DOT drug screen accompany a DOT physical exam?”  The answer is no.

Your follow-up question might be “but why?” The simplest explanation is that DOT drug testing under Part 382 is not connected to driver physical qualification requirements in Part 391. They are two completely separate areas of the regulations. In addition, the test type “Other” is not identified in Subpart C of Part 382 as a required test under the Federal Motor Carrier Safety Administration (FMCSA). The federal chain of custody form is used by all DOT agencies subject to DOT random testing (i.e., FAA, FRA, FTA, PHMSA), and at least one of these other agencies has a use for identifying a test as other. However, FMCSA does not.

Differences in Applicability

It is important to note that the DOT medical exam is not exclusive to just CDL-holders. It is applicable to drivers who operate the following vehicle as defined in §390.5:

    Commercial motor vehicle means any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle—
    (1) Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight of 4,536 kg (10,001 pounds) or more, whichever is greater; or
    (2) Is designed or used to transport more than 8 passengers (including the driver) for compensation; or
    (3) Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or
    (4) Is used in transporting material found by the Secretary of Transportation to be hazardous under 49 U.S.C. 5103 and transported in a quantity requiring placarding under regulations prescribed by the Secretary under 49 CFR, subtitle B, chapter I, subchapter C.

As you can see, this definition includes both CDL and non-CDL types of vehicles. Based on this alone, DOT drug and alcohol tests cannot be conducted on a great number of drivers who are subject to DOT physical requirements. DOT drug and alcohol testing is only applicable to those individuals operating a CMV as defined in §382.107/§383.5 (e.g., requires a CDL).

Anyone operating a vehicle not requiring a CDL cannot have a DOT drug or alcohol test conducted on him/her. Testing such a person leaves a question of legalities.

Convenience versus Regulations

Many carriers, out of convenience, send a driver for a DOT pre-employment drug screen at the same time as the DOT physical. Technically, a carrier could send the driver to two separate locations on two separate days, since the requirements are not tied together.

When an existing driver goes in for a recertification of his/her DOT physical, a DOT drug test should not be conducted. It would be a misrepresentation of the test as being required under Part 382, if a carrier were to do so. (This is found in §382.113.)

Where Does the Confusion Come From?

Prior to the creation and implementation of Part 382, DOT drug testing was positioned in Part 391, Subpart H. Much of today’s confusion comes from these regulations that have been removed from Part 391 and cease to be a requirement.

In the past, a DOT drug test was required at the time of a physical recertification. However, this was removed from the regulations when Part 382 was implemented in:

    * January 1, 1995, for carriers with more than 50 drivers; and
    * January 1, 1996, for carriers with less than 50 drivers.

If a carrier requires a drug or alcohol test during recertification of physical requirements, it must be represented to the driver as a non-DOT test under their company policy.

Consider the Following of Non-DOT Testing:

    * It is important to inform the clinic that the test must be conducted outside of your DOT program so that they know to use a non-DOT chain of custody.
    * By keeping the two testing programs (DOT and non-DOT) separate (e.g., two lab accounts), the non-DOT test results will not (and should not) appear on the lab summary for DOT compliance.
    * If a driver tests positive or refuses to be tested on a non-DOT drug or alcohol test, it holds no DOT consequences under the DOT Return-to-Duty Process, and is not considered a DOT drug and alcohol violation. The driver’s ability to continue in a safety-sensitive function is not affected. Any actions taken by the motor carrier would be based on their written non-DOT drug and alcohol policy and under their independent authority.

In addition, the carrier cannot report a non-DOT offense to new or prospective employers under §40.25/§391.23. It is suggested that you contact a labor attorney before releasing any non-DOT information in a reference check.

Legal Implications

If a carrier mistakenly tests a driver under its DOT program (i.e., using a DOT chain of custody, DOT lab account), most Medical Review Officers (MROs) will not downgrade the test to non-DOT once the error is made.

Potential liability sets in when a driver’s drug test results come back positive, adulterated, or substituted, or he/she refuses a test or experiences a dry bladder that is considered a refusal. When a driver violates DOT testing rules in certain states, the state must be notified by the MRO, consortium, or employer (depending on the state). A driver could find his/her career as a CDL driver hindered by a test reported by a third-party when it was not legally administered in accordance with the rules. It may prove difficult for this driver and/or the employer to remove this from his/her record.
 

The above information is from the folks at JJ Keller.  I received it via email, and send it to you for your review.