Fired for failing breathalyzer from Inhaler?

I had a chance earlier this morning to speak via telephone to a man who has forgotten more about DOT regulations than I will ever know. Here is a summary of what he told me about the difference between "Drug" and "Alcohol" testing. Remember, Part 40 applies to more than just the FMCSA. Railroad engineers are also subject to these same rules. It's the same for Amtrak Engineers. The "Drug" testing part has many moving parts, and a medical professional is required to make sure the tests are completed correctly and the person gets a chance to speak to this professional if they test positive and there is a legitimate reason for the positive that is not safety related. Hence, the MRO, by rule, has to be that go-between. Alcohol testing, however, really only has 1 moving part, and no interpretations are required. Test over the limit, and you have to do the better, more accurate confirmation test. If you still test over the limit, the person conducting the test fills out step 4 of THIS FORM, and the carrier transmits it to the clearinghouse.

I am also pasting an image of step 4 below. I am not going to get drawn into a debate of what "over the limit" is. I will just point out that right on the testing form, it says .02 or over.

 

It didn’t come through

 

Click the link above it. It is there also.

 

Less than 0.02 an employer is not allowed to take action against the driver (can’t fire)

From 0.02 to 0.039 is considered intoxicated and the employer can take action against the driver (can fire) Driver cannot work until the required time off duty is completed. This does not trigger a positive with the clearinghouse and driver is not required to complete a SAP.

0.04 is a test fail and game over for driver. Positive test is reported to the clearinghouse and driver in now required to complete a SAP.

OP got a 0.02 and his employer was legally allowed to fire him.

 

There are reasons why you’re allowed up to 0.039 and it has to do with calibration issues.

 

The ADA is an Act, not a place or person. So, the OP would, if he chose to, file a claim with the EEOC.

The EEOC would take his complaint and have an interview with him on the phone. Once he spoke to the EEOC, they will determine at that time to file a charge or not. The EEOC continues their thing, which will lead to one of three things 1.) The EEOC may pursue a case against the employer, 2.) The EEOC may issue a right to sue letter, or possibly the 3.) Nothing comes from it ever. I do know, that the OP could not file any lawsuit alleging discrimination without first filing a complaint with the EEOC, if filed under a federal act. Anything with the EEOC will likely take years and years. I presently have an EEOC claim open that's been open since 2021. There is nothing quick about it.

Agreed, with the exception of what you claim "without cause". This is being misconstrued as an employer can fire anyone at anytime for any reason. While if they didn't state a cause specifically, that might be true. However, they did. And the reason they gave was that the OP failed his breath test. There are exceptions to the at-will employment doctrine. Discrimination is certainly one of them, if in fact discrimination occurred. Now, did the OP ever tell his company he was on an inhaler? That's something else. But a lawyer will help him out if he seeks and finds one.

 

"OP got a 0.02 and his employer was legally allowed to fire him." Even without a retest after 15 min?
What we don't know is if the OP was given a retest. OP has not been back since the original post on Monday. As some have said the OP is not telling the whole story.

 

Well, I would imagine he should have told his employer about the albuterol, if that is the issue, or asthma or whatever condition he was on the albuterol for. So, it's not like he did himself any favors really by not telling them. It may have helped, it may have made no difference though, also.

 

As I stated in post 41, I am not an expert. I can only go by what I see in the actual text of Part 40. Part 40.247 covers the screening test, and Part 40.255 covers the confirmation test. I see no language from comment 54 in either part. I don't think Part 382 has any additional information. So I can only think there is some kind of DOT guidance published that I am not privy to.

 

Where I used to work, his insurance would require random drug and alcohol tests, not in sync with the random consortium
Some would be alcohol tests only. Others drug, some both.