Post-Accident Particulars

Post Accident Particulars:

Post-Accident Alcohol Testing and Use of Law Enforcement Test Results

Post-accident drug and alcohol testing seems to always be a complicated process for many employers – especially the issue surrounding use of results from tests administered by law enforcement personnel. Since this issue is primarily one facing the highway industry, all the following comments are geared to that industry.

It is always dangerous to assume that everyone knows the basics. So, lets take a quick look to make sure that all readers are starting with the same basic concepts. First, the only time a drug or alcohol test would be administered by law enforcement personnel would usually be following an accident. There is no mechanism, for example, for an employer who maybe can’t conduct a test (we are talking about an alcohol test here) to ask a law enforcement person to conduct such a test – regardless if it is a random, reasonable suspicion, or post-accident test.

In reality, the only time a law enforcement test will be conducted, will be after an accident, and that would usually be an alcohol test – most law enforcement agencies do not conduct drug testing on a regular basis. Now for a surprise twist – some of these alcohol tests may involve blood testing – which as you know DOT does not permit. All of a sudden, things are getting complicated.

Back to basics. Post-accident testing. When do you as an employer conduct drug and alcohol testing under DOT requirements versus under your own company policy? Specific rule text is spelled out in the Federal Motor Carrier Safety Administration (FMCSA) rule, 49 CFR Part 382, Section 303. Here is the simple answer; print it and keep it by your phone:

That seems pretty simple, but a lot of employers have trouble with this decision table. Some employers basically conduct a DOT test after every accident and then hope to sort it out afterwards. Not a good idea! You can face sanctions for this practice during an audit. And don’t depend on your Third Party Administrator (TPA) to make the decision. You, the employer, will probably be the first to know that one of your drivers had an accident. You need to make the decision on what type of test is to be done and notify either the TPA or your driver. You can’t get out of that responsibility.

Back to the testing. After an accident that meets the FMCSA criteria, you must perform the tests as soon as possible: Drug tests must be performed within 32 hours following the accident, and alcohol tests must be performed within 8 hours. Now, does that mean you have 8 hours to make a decision about a test and/or to get your driver to where a test can be performed? No – the rule says as soon as possible. If you can’t administer the alcohol test within 2 hours following the accident, you must prepare and maintain a written record stating the reasons the test was not promptly administered. And, if you don’t administer the alcohol test within 8 hours, you must stop attempts to administer the test and again prepare and maintain a record of why you could not conduct the test.

What are some of the reasons that may be acceptable to an inspector as to why you could not get a test done quickly? One might be that the driver was injured and was receiving medical attention first. Stating that there was no one available to conduct an alcohol test will not suffice; as an employer, you are required to have procedures in place to meet these kinds of situations.

In the case where a Federal, State, or local law enforcement official decides to conduct an alcohol test following an accident, and the results are made available to the employer, these results may meet the FMCSA requirements, provided the tests conform to applicable Federal, State, or local requirements. It is important to note that in this case, if the alcohol test is done on a blood specimen, DOT will accept the results. The key here is to ensure that you as the employer will be able to obtain those results. If the law enforcement personnel do not conduct a drug test, you may still have to do that if the accident met the FMCSA criteria.

Bottom line: As an employer, you need to ensure that you have procedures in place to conduct post-accident testing no matter where the accident happens. Also, if you operate within a certain geographic area only, you may be able to determine which jurisdictions require post-accident alcohol testing and if these tests are available to employers. If a particular law enforcement agency will not release these results, it is better to know ahead of time and make preparations to have the tests conducted under your own or your TPA’s control. And finally, please refer to the above chart – it will save you a lot of grief and worry, and will hopefully keep you out of trouble.