question about drug screening for my truck company

Mike_MD · Dec 17, 2009

Working Class Patriot said: ↑

Mike....

I am the carrier and have completed the Supervisor 60/60 Training per 49 CFR Part 40......

My C/TPA mails me the notification.....and I will go to an approved collection site at my earliest convenience......

It's been that way since day 1......
It's extremely difficult for me to say go test, while I'm snowed-in in places like Greybull, WY and the letter is in the mail box waiting for me to get home....That's happened twice.....

Does that put me in violation of 49 CFR Part 40?
I don't believe so...

Before I switched to an Interstate Carrier, I posed this question to the director of my C/TPA....She assured me as long as I responded to the letter in a timely matter...I would not be in violation of the law.
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There appears to be some myths. Part 40 tells the collector how to collect the urine and alcohol test, the MRO how to report and evaluate the potential positives, and tells SAPs how to return a driver to duty. Part 382 tells you when you must test.

Part 40 is written by the Secretary of Transportation and applies to all modes, i.e. air, water, rail, highway, and pipeline.

Part 382 is modal specific to highway and written by the FMCSA.

Part 382 requires supervisors to have reasonable suspicion training, requires a carrier to have a D & A policy, and tells carriers when their drivers must tests, i.e. post-accident, pre-employment, random, return to duty, follow-up and reasonable suspicion.

Part 382 requires a test to be completed in the selection period. Since you appear to be the only employee then provided you proceeed immeadiately to the collection site upon receiving the letter no harm no foul; however, if you neglect to proceed immeadiately to the collection site you could be cited for a violation of Part 382.

Toejam should follow Frenzy's advice.

*Question 21: If a driver has been notified of his/her selection of random drug and/or alcohol testing and the testing cannot be completed because of unforeseeable obstacles at the collection site (i.e. collection site closed, collector unavailable when driver shows up, emergency such as a fire, natural disaster, etc), what is the carriers responsibility?

Response:In accordance with §382.305(i)(3) and §382.305(l), each driver selected for testing shall be tested during the selection period; and upon notification of selection for random alcohol and/or drug testing proceed to the collection site immediately. In instances of unforeseeable obstacles the driver shall immediately contact the employers DER for instructions to an alternative collection site. These unforeseeable obstacles do not negate the employers responsibility of ensuring that the required test be administered.
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The Trucker's Justice Center is in Minnesota and covers the midwest.

http://www.truckersjustice.com/Trucking.shtml

Be safe.

Working Class Patriot · Dec 17, 2009

Does part 382 discuss occurrences beyond the control of the driver such as weather conditions?

Working Class Patriot · Dec 17, 2009

This is what I found....

Subpart A - Administrative Provisions

§ 40.7 How can you get an exemption from a requirement in this regulation?
(a) If you want an exemption from any provision of this part, you must request it in writing from the Office of the Secretary of Transportation, under the provisions and standards of 49 CFR part 5. You must send requests for an exemption to the following address: Department of Transportation, Deputy Assistant General Counsel for Regulation and Enforcement, 1200 New Jersey Avenue, SE, Washington, DC 20590.
(b) Under the standards of 49 CFR part 5, we will grant the request only if the request documents special or exceptional circumstances, not likely to be generally applicable and not contemplated in connection with the rulemaking that established this part, that make your compliance with a specific provision of this part impracticable.
(c) If we grant you an exemption, you must agree to take steps we specify to comply with the intent of the provision from which an exemption is granted.
(d) We will issue written responses to all exemption requests.
[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 33329, June 12, 2008]
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Now could this exemption be interpreted for cases as in getting snowed in and not making making it to the collection site "In a timely manner"?

ToeJams · Dec 17, 2009

when should i check my dac report for the incident . and thanks for the advice i will need it .

Mike_MD · Dec 18, 2009

Working Class Patriot said: ↑

This is what I found....

Now could this exemption be interpreted for cases as in getting snowed in and not making making it to the collection site "In a timely manner"?
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Part 40 exceptions are difficult to acquire. I beleive the one you offered applies to the "Stand Down" provision that allows carriers to apply to the US DOT to allow them to stand a driver down once the MRO calls to speak to the driver.

§ 40.21 May an employer stand down an employee before the MRO has completed the verification process?

(a) As an employer, you are prohibited from standing employees down, except consistent with a waiver a DOT agency grants under this section.
(b) You may make a request to the concerned DOT agency for a waiver from the prohibition of paragraph (a) of this section. Such a waiver, if granted, permits you to stand an employee down following the MRO's receipt of a laboratory report of a confirmed positive test for a drug or drug metabolite, an adulterated test, or a substituted test pertaining to the employee.
(1) For this purpose, the concerned DOT agency is the one whose drug and alcohol testing rules apply to the majority of the covered employees in your organization. The concerned DOT agency uses its applicable procedures for considering requests for waivers.
(2) Before taking action on a waiver request, the concerned DOT agency coordinates with other DOT agencies that regulate the employer's other covered employees.
(3) The concerned DOT agency provides a written response to each employer that petitions for a waiver, setting forth the reasons for the agency's decision on the waiver request.
(c) Your request for a waiver must include, as a minimum, the following elements:
(1) Information about your organization:
(i) Your determination that standing employees down is necessary for safety in your organization and a statement of your basis for it, including any data on safety problems or incidents that could have been prevented if a stand-down procedure had been in place;
(ii) Data showing the number of confirmed laboratory positive, adulterated, and substituted test results for your employees over the two calendar years preceding your waiver request, and the number and percentage of those test results that were verified positive, adulterated, or substituted by the MRO;
(iii) Information about the work situation of the employees subject to stand-down, including a description of the size and organization of the unit(s) in which the employees work, the process through which employees will be informed of the stand-down, whether there is an in-house MRO, and whether your organization has a medical disqualification or stand-down policy for employees in situations other than drug and alcohol testing; and
(iv) A statement of which DOT agencies regulate your employees.
(2) Your proposed written company policy concerning stand-down, which must include the following elements:
(i) Your assurance that you will distribute copies of your written policy to all employees that it covers;
(ii) Your means of ensuring that no information about the confirmed positive, adulterated, or substituted test result or the reason for the employee's temporary removal from performance of safety-sensitive functions becomes available, directly or indirectly, to anyone in your organization (or subsequently to another employer) other than the employee, the MRO and the DER;
(iii) Your means of ensuring that all covered employees in a particular job category in your organization are treated the same way with respect to stand-down;
(iv) Your means of ensuring that a covered employee will be subject to stand-down only with respect to the actual performance of safety-sensitive duties;
(v) Your means of ensuring that you will not take any action adversely affecting the employee's pay and benefits pending the completion of the MRO's verification process. This includes continuing to pay the employee during the period of the stand-down in the same way you would have paid him or her had he or she not been stood down;
(vi) Your means of ensuring that the verification process will commence no later than the time an employee is temporarily removed from the performance of safety-sensitive functions and that the period of stand-down for any employee will not exceed five days, unless you are informed in writing by the MRO that a longer period is needed to complete the verification process; and
(vii) Your means of ensuring that, in the event that the MRO verifies the test negative or cancels it
(A) You return the employee immediately to the performance of safety-sensitive duties;
(B) The employee suffers no adverse personnel or financial consequences as a result; and
(C) You maintain no individually identifiable record that the employee had a confirmed laboratory positive, adulterated, or substituted test result ( i.e., you maintain a record of the test only as a negative or cancelled test).
(d) The Administrator of the concerned DOT agency, or his or her designee, may grant a waiver request only if he or she determines that, in the context of your organization, there is a high probability that the procedures you propose will effectively enhance safety and protect the interests of employees in fairness and confidentiality.
(1) The Administrator, or his or her designee, may impose any conditions he or she deems appropriate on the grant of a waiver.
(2) The Administrator, or his or her designee, may immediately suspend or revoke the waiver if he or she determines that you have failed to protect effectively the interests of employees in fairness and confidentiality, that you have failed to comply with the requirements of this section, or that you have failed to comply with any other conditions the DOT agency has attached to the waiver.
(e) You must not stand employees down in the absence of a waiver, or inconsistent with the terms of your waiver. If you do, you are in violation of this part and DOT agency drug testing regulations, and you are subject to enforcement action by the DOT agency just as you are for other violations of this part and DOT agency rules.
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Management is the key, make sure the employee can report once they've been informed to report for testing.

Be safe.

Rollover the Original · Dec 18, 2009

ToeJams said: ↑

when should i check my dac report for the incident . and thanks for the advice i will need it .
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Unless they fired you do not worry about your DAC. They will only report to it when you terminate your job or they do.

Keep us informed but you need to contact a lawyer ASAP if they fire you! As for taking pictures of the screen of your QComm that's not necessary as your lawyer will subpoena all the messages for the dates involved from Qualcomm them selves. They keep all messages on the servers for about 6 months.

BUT, you do need to sit down and document everything while it's still fresh in your mind. Don't wait to see if you have a job! This could still come back and bite you if you "screw up" in the next few months! And they could do it! Write is as clearly as possiable and make sure it's understandable for the lawyers people to type it themselves.

If they do not fire you I would give it a few weeks and find another job but give them a 2 week notice and send 2 letters by REGISTERED Mail. (KEEP THE RECEIPTS!) Mail 1 to the human resources department and 1 to safety. Keep a copy of the letter. The letter should point out than even though you "enjoyed" your employment with whoever it is because of MAJOR communications problems and dispatchers who don't or didn't understand FMCSA rules which caused you lost wages and mental anguish, you feel it would be better for both you and the"company" if you voluntarily terminated (do not use the word "quit) your employment. BE NICE in the letter. Reread it several times and spell check it! Use paragraphs (not like your post) and capitalize each where needed. If you need to get someone else to proof read it AFTER you print it. You would be surprised how many mistakes you can find between the screen and paper.

Then follow this post on what to do when you turn in your truck.
http://www.thetruckersreport.com/truckingindustryforum/experienced-truckers-advice/index2.html
Hopefully you will be able to terminate your employment on a "good" note and with out a bad writeup on your personnel record or on DAC.

Good Luck on this
Rollover

blanco · Jan 1, 2010

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