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

Discussion in 'Trucking Industry Regulations' started by sonofsilence, Oct 19, 2023.

  1. sonofsilence

    sonofsilence Light Load Member

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    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
     
    Magoo1968 and Bud A. Thank this.
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  3. Bud A.

    Bud A. Road Train Member

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  4. lual

    lual Road Train Member

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    There's more than one Forum thread here that already exists -- listing employers/carriers that hire SAP drivers.

    I believe a couple of these are also recent.

    It's a "perfect storm" of sorts....Chinatown pointed out in an earlier thread (& rightly so) that apparently fewer & fewer companies are hiring SAP grads.

    On top of that -- the current trucking market has forced a lot of companies away from hiring inexperienced drivers.

    My suggestion: do a Forum search ("SAP")...find those mentioned threads....& go thru the listed/mentioned carriers.

    -- L
     
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  5. lual

    lual Road Train Member

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    The above story is of course very sobering -- & it might not be the worst idea in the world if every CDL school student had to read the above prior to graduation.

    It's also (I think) a "bad ad" for Western Express.

    -- L
     
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  6. lual

    lual Road Train Member

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    If the info in the original post is indeed totally accurate -- a case could be made (I think) that the original poster was actually sent there & was also SET UP TO FAIL.

    Why is that the case (if true)?

    Without knowing more info/facts related to the above story -- that would probably be best discussed somewhere else.... :dontknow:

    -- L
     
  7. prostartom

    prostartom Light Load Member

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    Western Express should have done Drug and Alcohol training during orientation or before they put you on the road, that is a DOT requirement. They should have clearly explained what constitutes a failed test, and a lot of drivers do not realize there are other reasons you can fail a test other than a positive result.

    Failing to show within a reasonable amount of time once you are notified of a random test can be an automatic fail. As you found out leaving the facility once the testing process has begun is another automatic fail, as well as not providing sufficient breath, saliva or urine without a medical reason will also be an automatic fail. Not cooperating with the facility's testing employees can be another reason to fail you.

    They should have also explained what your rights are if you do fail a test or get a positive result. Before that result is certified the MRO or Medical Review Officer must reach out to the employee and ask about any prescription medicines or medical issues that could explain the positive result. That is why it is important to list all your current medications and supplements on the paperwork before you test and put down a good phone # in case the MRO does need to get a hold of you. They cannot certify a positive test without at least attempting to talk to you.

    Your company also needs to explain the chain of custody of your sample and how the split sample works. If your first drug test sample comes back positive, you have the right to have your second sample tested by a different lab using a different method than your first sample. Your company should explain that to you and tell you if they cover the cost to do that or if you have to pay that out of pocket.

    The company also has to have a clear policy of what will happen if you do test positive, obviously they will immediately remove you from driving, but will they give you a chance to go through the SAP process or are you automatically terminated. This should have all been explained during the hiring process, or at least they should have had you sign their drug and alcohol policy that explains all of this.
     
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  8. JB7

    JB7 Medium Load Member

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    Hindsight is 20/20 but I would talk to an attorney to see if there is anything that can be done. I would also print out your texts with the DM and a record of your outgoing calls to take with you, and the test that you did take at your expense.

    As prostartom stated "Western Express should have done Drug and Alcohol training during orientation or before they put you on the road, that is a DOT requirement." If Western did not do this an attorney may be able to politely threaten them and get you back to work.
     
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  9. Chinatown

    Chinatown Road Train Member

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  10. Chinatown

    Chinatown Road Train Member

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    If you see a "Quick App" on the websites, then submit that before any phone calls. Follow up with a phone call in a day or so.
     
  11. Chinatown

    Chinatown Road Train Member

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    ABL Trucking | We specialize in dry shipping, tanklines, …
    ~
    Note - these qualifications are recommended; not required.
    Since it has 2-years driving experience, but CDL not required, must mean 2-years with at least a Class-C drivers license.
    ~
    Recommendations (but not required):
    Class-A CDL License.

    • Doubles/Triples endorsement.

    • At least 2-years driving experience.

    • Hazmat endorsement.
     
    Last edited: Oct 19, 2023
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