POST-ACCIDENT TESTING WHAT DO THE FEDS WANT?
By Don Shatinsky
Former Senior Drug and Alcohol Policy Advisor at DOT and one of the authors of the Federal drug/alcohol testing regulations (49 CFR Part 40), now a consultant in the drug testing field and a Regional Representative for Concorde, Inc. The opinions expressed in this Blog are for educational and informational purposes only. Any personnel or legal actions should be based on the actual rule text.
ACCIDENTS HAPPEN – RIGHT?
You bet, that’s why they are called accidents, and you have no control over them. What you do have control over is what happens following the accidents. Do you wind up doing something stupid that may result in fines and/or litigation or do you know what to do and stay out of trouble?
Just a Note: we are talking here about the highway industry. Approximately 90% of the Department of Transportation (DOT) drug and alcohol testing is in this category. Post-accident testing for aviation or rail is significantly different, but comprises only a small percentage of the over all transportation testing.
All good questions and the following will hopefully help you sleep better. There are really two decisions you have to make:
· The accident meets DOT criteria, or
· The accident does not meet DOT criteria
Simple, right? No, because many safety managers test everyone and then try to sort out if it was supposed to be a DOT test or non-DOT test.
Remember this!!! To apply this simple rule, you have to know which drivers are covered by DOT regulations. Again, simple, but there are still managers and supervisors who miss the boat.
Your driver comes under Federal regulations if:
The driver is using a commercial driver’s license (CDL); and
Operates a commercial motor vehicle (CMV) that has a gross vehicle weight rating of 26,001 pounds or more; or
Drives a vehicle designed to transport 16 or more passengers, including the driver; or
Drives a vehicle of any size used in the transportation of materials found to be hazardous under the Hazardous Materials Transportation Act and is required to be placarded under 49 CFR Part 172, subpart F.
One last two-step process. Drivers who are subject to post-accident testing are those who:
While performing safety-sensitive functions (i.e., driving a CMV) are involved in an accident resulting in a loss of human life, or While performing safety-sensitive functions are involved in a nonfatal accident resulting in the driver receiving a citation under State or local law for a moving traffic violation arising from the accident.
The question that frequently comes up is that the citation by law enforcement is not issued until the next day; say 12 hrs after the accident. What is the employer to do? For drugs you have up to 32 hours following the accident to perform the test. However, since the 8-hour window for alcohol testing has passed, you cannot test for alcohol. Once the clock runs out, you may not conduct any DOT testing.
Why is it important to determine if a test is supposed to be a DOT test or one under company policy? Because the government has limited authority to order an individual to provide a urine specimen for a drug test. When a company conducts a test using the Federal Chain of Custody Form, the company is notifying the driver or employee that the government is requiring this test. If it was supposed to be a non-DOT test, the government gets very unhappy – because you as an employer are misrepresenting their authority – and they have no problems levying fines for such actions on your part. Enough said; play by the rules and you should not be afraid of an audit.
Couple issues to remember. If you don’t do the alcohol test within 2 hours you must maintain a record of why the test could not be performed; then you have up to 8 hours in which to try and conduct the breath alcohol test – and again document why it could not be done earlier. The same goes for a drug test: if you cannot perform a drug test within the 32 hr. time frame you need to document the reason(s) and maintain that file.
And finally, drivers subject to post-accident testing must refrain from using alcohol for 8 hours following the accident or until completing a post-accident alcohol test, whichever comes first. It is imperative that the employers provide drivers with necessary post-accident information, procedures, and instructions prior to their operating a CMV, so that they and the employer will be able to comply with the rules.
Bottom line – know the rules and follow them!