FMCSA'S 'Return-to-Duty' Program: Off-ramp to a Goat Trail to a Dead End

FMCSA’s ‘Return-to-Duty’ Program: Off-ramp to a Goat Trail to a Dead End


I just read an article in truckdriver.com’s September newsletter titled “American Substance Abuse Professionals (ASAP) has ‘Miles of Gratitude’ for America’s Truck Drivers.” I would really like to know where ASAP came up with “85%” as the number representing their “success rate returning employees back to work.” Since being “cleared” to “Return to Duty” by my “Substance Abuse Professional (SAP)” 99.9% of trucking companies I have contacted in search of a trucking job have all told me, unequivocally, “No. We don’t hire SAP drivers,” and believe me, thus far I have contacted many, many trucking companies.


Perhaps ASAP is basing their 85% success rate on “SAP” drivers with “Designated Employee Representatives (DERs), as they claim, falsely, on their website. If such a thing—"Driver ‘Employee’ Representative”—even existed, that might make sense, but what ASAP describes on its website as a “Driver ‘Employee’ Representative (DER) is a misrepresentation. Actually, US Department of Transportation (USDOT) uses the acronym “DER” as shorthand for “Designated ‘Employer’ Representative.” DERs work on behalf of the employer, not the employee and the truth is that truckers whose employers fire them for failing to remain at drug testing facilities get no such representation. To the contrary, what we get is—effectively—blacklisted.


My former employer, Western Express Inc., fired—then flagged me in the Clearinghouse—for “failure to remain at a drug testing facility” for what would have been my first “random” drug test. I was NOT on drugs or alcohol.


What happened was that upon my arrival at the “drug testing facility”—an Urgent Care clinic on the side of a highway next to a shopping mall up in Massachusetts—a testing facility “service agent,” otherwise known as a “receptionist,” told me “You have to fill out papers from your employer” [for ‘authorization’ to take the drug test]. Up to that point I had always been told in such clinical situations “sign here, take a seat over there,” but in this instance, that didn’t happen.


Indeed, when the COVID-mask-wearing service agent behind the counter at the “drug testing facility” told me “You have to fill out papers from your employer”—papers that I did not have, and which I believed I could not get—my initial thought was “OK, great! See ya!” But then, as I was turning to leave, it occurred to me that to cover my ### I had better call my DM and tell him I needed “authorization” [to take the test]. He didn’t answer his phone, his voicemail box was full, as usual, and as usual, it would not accept messages. So, then I texted him for the “authorization,” saying “I need authorization to take test. This is becoming a bigger pain in the ### by the minute. Call me before I just say #### it and head for the nearest truck stop” (I had parked my rig—an International pulling a 53-foot flatbed trailer—'creatively’ in the afore-mentioned shopping mall parking lot (which was packed with morning shoppers) and which, enroute to the place, my DM had directed me to saying, “There’s a ‘huge’ shopping mall parking lot right next to the place. Aughta be plenty of room over there.”) Yeah, right.


When I got back to my truck, I saw a message from my DM on my ELD that I had a lumber load waiting for me to go pick up eighty miles away, at which point I turned to my twenty-year-old “developmentally disabled” son who was traveling with me (my copilot), and said “Well, let’s giddee up!”


It was not until I reached the lumber yard that evening that I saw the text message from my DM on my phone containing a link to the “authorization” form, a so-called “e-scan,” and it was not until a week later that my DM called me to tell me “yeah, um, about that drug test you failed last week, well, I’m afraid I have to terminate you for that.” And I was, like, “dude, what the #### are you talking about? I didn’t fail any drug test! to which he replied “well, technically, failure to remain at a drug testing facility is the same as a positive drug test.…”


At that point—it was a Friday, and I was about two hundred miles from home—I immediately called a Guthrie Clinic near my hometown, Ithaca, New York, and scheduled an appointment for a comprehensive DOT drug and alcohol screening, at my own expense, which, of course, turned out to be a total waste of money. The test results came back negative, but FMCSA don’t give a #### about that.


Next, I tried to “appeal” the flag Western Express put on me, because, after all, I was NOT on drugs or alcohol. It’s called a “Part 10 Privacy Act Review,” and the link to initiate the review is hidden deep inside FMCSA’s Code of Federal Regulations (CFR), where I would presume most drivers who have ever been flagged by their employer rarely venture. It took me a couple of days to find it, initiate it, and I probably would never have gotten a reply to it from the “Clearinghouse Team” had I not sought the help of Georgia Congressman Buddy Carter’s Savannah, Georgia office. In any case, months after I initiated the review—it’s supposed to take “a week to ten days—I finally got a reply from the “Team” saying, essentially, “not knowing you were not supposed to leave the testing facility was no excuse for leaving” [the testing facility].


It was at that point that I realized the only way I would ever get my trucking career back was to go through this so-called “Return-to-Duty” process, which meant—although I was NOT on drugs or alcohol—hiring a Substance Abuse Professional (SAP). That was five months ago. I went through the program, got “cleared” by my SAP to Return to Duty, and now not a single trucking company I have called so far has been willing to hire me. “No. We don’t hire SAP drivers,” they all say. (Coincidentally, the other excuse I have heard a lot from trucking companies for not hiring me is that I lack experience. When Western Express fired me I had accumulated ten months experience behind the wheel, from the first day of CDL-A school up to the minute I got fired), and of course, I understand why trucking companies avoid SAP drivers like the plague—risk, insurance issues, damage to reputation, the hassle of having to deal with yet another layer of corporate-state bureaucracy—just as I understand why most trucking companies only hire drivers with “at least a year’s experience.”


Nevertheless, my question is this: Why does FMCSA have a so-called “Return-to-Duty” program that no trucking company—for good reason—is bound to honor? What’s the point? to feed a flourishing industry of SAPS on the hopes of truckers whose careers, dreams and lives it has needlessly dead-ended?


I am still searching for that one trucking company owner who will believe me when I say I was NOT on drugs or alcohol, and that will give me the shot I deserve to avenge my professional reputation and re-enter my trucking career.


Sincerely,

James Thomas Lukasavage

Trucker Forever