If They Don't Just Say No

Bruce A. Hooker

SINCE 1996, Federal Department of Transportation (DOT) regulations (49 CFR Parts 40 & 382) have required that all waste industry drivers who operate vehicles weighing more than 26,000 pounds be randomly tested for drugs and alcohol. Most waste companies test regularly, but there is often a great deal of uncertainty about what to do if a driver tests positive.

When a driver tests positive for drugs or alcohol or refuses to take a test, that driver is considered medically disqualified and is prohibited from performing any safety-sensitive functions, including driving and truck maintenance. The driver also must be referred to a substance abuse professional (SAP). Even if the waste company decides to fire the driver, a referral to an SAP must be made. DOT regulations do not require that the waste company pay for any substance abuse evaluation or treatment.

The decision to fire or retain a driver who tests positive or refuses to test is entirely up to the individual waste company. Labor agreements, company policy, the driver's seniority and the circumstances leading to a positive test all are factors that a waste firm must take into consideration when deciding whether to retain a driver who has tested positive.

In those circumstances where the waste company wishes to continue the employment of such a driver, the regulations have a prescribed protocol that must be followed before the employee is allowed to perform any safety-sensitive functions. Directed by the SAP, this protocol is called the return-to-duty process.

The process begins with a face-to-face evaluation of the driver by the SAP. Afterwards, a program of education and/or treatment may be prescribed. Once the program has been completed, the SAP will conduct another face-to-face evaluation to determine if the treatment/education was effective.

Given approval from the SAP, the driver must then take a return-to-duty drug/alcohol test. If the driver passes the test, he or she can resume safety-sensitive functions such as driving. However, DOT regulations mandate a regimen of follow-up drug/alcohol tests for the returning driver.

The SAP will determine the number, type and frequency of follow-up tests. DOT regulations require a minimum of six unannounced tests during the first 12 months of returning to safety-sensitive functions. Keep in mind that these tests are in addition to the driver's continued participation in the waste company's random drug/alcohol testing program. Again, DOT regulations do not require employers to pay for the return-to-duty test or the follow-up tests and only require testing if the waste firm wants to return the violating driver to safety-sensitive functions. Some waste companies choose to offer a chance at reinstatement of safety-sensitive duties only if the driver pays for the costs of the return-to-duty and follow-up tests.

Whether to give a driver who has violated the drug/alcohol regulations a second chance can be a difficult question for many waste companies. Some companies prefer to give a good driver a second chance when faced with the uncertain and costly process of hiring and training a new driver. Other companies do not wish to incur the liability of putting an alcohol or drug offender back on the road.
— Bruce A. Hooker
R.F. Mattei & Associates of CA Insurance Services
Sacramento, Calif.